According to section 29 of the Basic Conditions of Employment Act of 1997, an employer is obligated to provide the employee with certain written particulars of their employment as a minimum requirement. They are to do so by no later than the first day of employment.
Such particulars are defined as the following:
- The employer’s name and address
- The employee’s name and address
- Workplace address
- Employment commencement date
- Hours of work
- Salary frequency (i.e. weekly/fortnightly/monthly etc.)
- Job title
- Job description
- Salary amount (total or per hour)
- Overtime amount (if applicable- those earning below the threshold)
- Statutory and any agreed-upon deductions
- Period of notice required in terms of contract termination
- The relevant Bargaining Council or Sectoral Determination
Despite this legal requirement, it is often found that employers are failing to abide by this. Even though a verbal contract is still legally binding, it becomes extremely difficult to provide any form of definitive proof should a dispute querying the conditions and terms of employment arise.
The lack of a written contract does not withhold the employee from referring a CCMA dispute nor guarantees that the employee referring the CCMA dispute will be granted their expected outcome.
The lack of a written contract is seen as a grey area in terms of business.
When there is no written contract between an employer and employee, the employee may be deemed permanent without certain caveats, such as a probation period, without sufficient evidence to indicate otherwise. Therefore the company has to meet any obligations of a permanent position.
The absence of a contract does not indemnify or nullify either party, employer or employee, from any responsibilities and/or expectations deemed as required in a written agreement, The Basic Conditions of Employment Act of 1997, The Labour Relations Act of 1995 and The Constitution of South Africa 1996.
In essence, employers are mostly putting themselves at risk when there is no form of a written contract of employment.
Written contracts enable both the employee and employer to conform to policies and procedures, disciplinary codes as well as any other requirements specific to the relevant requirements needing to be in place with regards to compliance with the relevant Bargaining Counsel and/or basic conditions as specified in the above-mentioned legislations, dependent on the sector in which the employers’ business will fall into.
Invictus Group specialises in labour relations in all sectors.