The employment contract is a reciprocal agreement whereby the employee, makes their services available to the employer for a predetermined amount or an amount that can be determined and the employer has authority over the way and time the employee provides these services. The labour legislation does not state the requirement that the employer and the employee should enter into a written contract of employment. Section 29 of the BCEA however states that the “employer must present to the employee in writing on the day they start work with particulars regarding the employment relationship”. This is usually the contract of employment. Verbal contracts are recognised as long as the parties have agreed on the essentials which are,
- Offer and acceptance
- Agreement on specific tasks to be performed, remuneration, duration and hours of work
- Intention to create legal relations
In the case of Cliff vs Electronic Media Network (Pty) Ltd (1368/2016) ZAGP JHC 2, the applicant was reinstated to his position after he was unfairly dismissed by his employer. The applicant in this instance had a verbal contract of employment and the court recognised this contract.
It is advisable to have written contracts as this serves as documentary proof of the agreement entered by the parties. The advantages of written contracts are as follows,
- i) ensures that both parties are fully aware of the contents of their agreement,
- creates transparency between the parties,
- creates and maintains trust between parties and,
- serves to avoid unnecessary disputes.
The employment contract is important as it formalises the relationship between the employer and the employee. The employment contract will be used as proof of the agreement between the employer and the employee in instances where one of the parties decides not to perform as per the agreement. During the course of the employment if anything stated on the contract changes from either party an amended document reflecting the change should be submitted to the parties. Once the employee signs the contract he/she becomes an employee and the contract begins to operate even though they have not commenced work. This was stated in the case of Wyeth SA (PTY) Ltd vs. Manqele and others (2005, 6 BLLR 523) where the Labour court confirmed that a person becomes an employee the moment they sign the employment contract. Employment contracts are not only restricted to full time employees but part time employees should be provided with an employment contract.
There are important particulars which must be included when drafting an employment contract. The written particulars that must be disclosed to the employee are as follows:
(a) the full name and address of the employer;
(b) the name and occupation of the employee, or a brief description of the work for which the employee is employed;
(c) the place of work, and, where the employee is required or permitted to work at various places, an indication of this;
(d) the date on which the employment began;
(e) the employee’s ordinary hours of work and days of work;
(f) the employee’s wage or the rate and method of calculating wages;
(g) the rate of pay for overtime work;
(h) any other cash payments that the employee is entitled to;
(i) any payment in kind that the employee is entitled to and the value of the payment in kind;
(j) how frequently remuneration will be paid;
(k) any deductions to be made from the employee’s remuneration;
(l) the leave to which the employee is entitled;
(m) the period of notice required to terminate employment, or if employment is for a specified period, the date when employment is to terminate;
(n) a description of any council or sectoral determination which covers the employer’s business;
(o) any period of employment with a previous employer that counts towards the employee’s period of employment;
(p) a list of any other documents that form part of the contract of employment, indicating a place that is reasonably accessible to the employee where a copy of each may be obtained.