Employers often underestimate the value of reducing the agreements that they have with their employees to writing, as they feel that verbal agreements would often suffice. However, in the realm of employment law, reducing written particulars into a contract of employment is crucial for establishing a clear, mutual understanding between employers and employees. A written contract of employment often functions as the foundation of an employment relationship, wherein the terms and conditions of employment are formalized, the rights and obligations of the parties are safeguarded, and where one can determine the applicability of the governing employment legislation. As such, it is important for employers to take note of the basic outlines of written particulars and why contracts should preferably be reduced to writing.
What does “written particulars of employment” mean?
As soon as an employee starts to work for their employer, certain details must be written down. These details are referred to as the written particulars of employment, and they outline basic, yet crucial details about the employment relationship between the employer and employee. In Rumbles vs Kwabat Marketing (Pty) Ltd D1055/2001) [2003] ZALC 57 (21 May 2003), Judge van Niekerk gave a definition of written particulars of employment and stated that this refers to a conspectus of all the relevant facts including any relevant contractual terms, and a determination whether these holistically viewed establish a relationship of employment as contemplated by the statutory definition.
Section 29(1) of the Basic Conditions of Employment Act 75 of 1997 states that the following details must be supplied to an employee by their employer at the start of the employment relationship:
- the full name and address of the employer;
- the name and occupation of the employee, or a brief description of the work for which the employee is employed;
- the place of work, and, where the employee is required or permitted to work at various places, an indication of this;
- the date on which the employment began;
- the employee’s ordinary hours of work and days of work;
- the employee’s wage or the rate and method of calculating wages;
- the rate of pay for overtime work;
- any other cash payments that the employee is entitled to;
- any payment in kind that the employee is entitled to and the value of the payment in kind;
- how frequently remuneration will be paid;
- any deductions to be made from the employee’s remuneration;
- the leave to which the employee is entitled;
- the period of notice required to terminate employment, or if employment is for a specified period, the date when employment is to terminate;
- a description of any council or sectoral determination which covers the employer’s business;
- any period of employment with a previous employer that counts towards the employee’s period of employment;
- employee’s period of employment; and
- 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.
Section 29(2) of the Act states that, if any of the above particulars should change during the employment relationship, then these changes must be written down and the employee must receive a document where the changes are reflected.
Why reducing these written particulars to a contract of employment is beneficial
The written particulars of employment referred to above are an excellent starting point for employers to determine the type of information that they need to give their employees at the start of their employment. Since these particulars are legally required to be reduced to writing in any case, employers would only be doing themselves a favour by drafting contracts of employment for their employees. In doing so, employers would be able to prevent misunderstandings about any material terms of the employment relationship, clearly outline duties and responsibilities of their employees, safeguard themselves against the detrimental effects of any legal disputes, and ensure that they remain compliant with employment legislation.
Contact Invictus for guidance and assistance in navigating employment contracts.
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