Unsigned Employment Contracts – Part 1

Sep 8, 2021

In the previous three articles we discussed the different types of contracts of employment. In terms of section 29 of the Basic Conditions of Employment Act (BCEA) an employer must present to employees in writing, on the day they start to work for the employer, with particulars regarding the employment relationship. This is normally done in the form of a contract of employment, making the document formal and binding on both parties

The importance of an employment contract and the conclusion thereof prior to commencement of employment cannot be emphasised enough. The contract of employment formalizes the relationship and creates certainty for both parties in the employment relationship. Without a contract of employment employers will find it for instance difficult to prove that the relationship with the employee was for a limited duration or that the employee for instance agreed to work overtime in terms of section 10 of the BCEA.

For some strange reason employees will almost always refuse to sign a contract of employment after commencing employment. The reasons for this could be that the employee believes that the employer is trying to exploit him by inserting something in the contract to which they did not agree, or simply because he (foolishly) believes that he will be untouchable and not bound by the rules of the company in the absence of such an agreement. The latter is definitely not true and such employees will quickly learn that the company’s rules and policies are not employment conditions and that if they were aware of such rules or could reasonably have been expected to be aware of them then they may face disciplinary action.

The written particulars that must be disclosed to the employee follows:

  • 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;
  • 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.

When any matter listed above changes the written particulars must be revised to reflect the change(s) and the employee must be supplied with a copy of the document reflecting the change. If an employee is not able to understand the written particulars, the employer must ensure that they are explained to the employee in a language and in a manner that the employee understands. The written particulars in terms of section 29 must be kept by the employer for a period of three years after the termination of employment.

So how must employers deal with employees that for some strange reason refuse to sign their employment contracts?

In Part 2 we shall discuss the remedies available to employers when an employee refuses to sign his/her contract of employment as well as the consequences should an employer dismiss an employee for refusing to sign the contract.

Author:

Wallace Albertyn

Wallace Albertyn is a Senior Associate and Legal Advisor at LabourMan Consultants.

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