Page 16 - KZN Business Sense 12.4 - Terry Flack

SETTING THE STAGE FOR THE

EMPLOYMENT RELATIONSHIP

THE CONTRACT OF EMPLOYMENT

Colette Tanner, to provide greater protection
Operations Director, to employees, ensure
DRG compliance with fair labour
practices, and prevent the
A misuse of fixed-term contracts
duly
drafted
by employers attempting to
of permanent employment.
employment circumvent the responsibilities
contract sets the
stage for the The legislative changes,
employment encapsulated under section
relationship 198B of the Labour Relations
and is a Act (LRA), have drastically
balanced changed the landscape of fixed-
document term contracts, imposing stricter
that sets out requirements on employers and
the rights, responsibilities and protecting employees against
expectations of both parties. exploitation.
All employment starts with the Section 18 of the Protection
offer of employment, an offer and of Personal Information Act
acceptance of a job on the terms (POPIA) – with reference to the
offered brings an employment privacy statement applicable to
contract into existence. An collecting and processing the
offer and acceptance of the job employee’s personal information.
on the terms offered results in Confidentiality obligations,
an employment relationship and possibly restraint of trade
regardless of whether the conditions.
employee has started work.
Intellectual property
An employment offer ends the employee, an open-ended contract was silent regarding Commission for Conciliation, applications for products or
the selection process and is contact or fixed or limited term leave or overtime. Section 4 Mediation, and Arbitration systems developed during the
an invitation for a successful contract. An open-ended contract of the BCEA sets out the basic (CCMA). This legal recourse employee’s employment.
candidate to accept an offer to does not have an end date where conditions of employment and aims to restore the original terms
work in the position advertised the presumption is that the is automatically a term of an and conditions of employment. Security, risk management,
by the employer. A job offer has contract will continue until such employment contract, unless The CCMA provides a platform loss control – consent for
three requirements in law, the time as either party ends the more favourable terms in law for employees to challenge searches, breathalyser tests, etc.
employee must be hired for a contract, provided of course due exist. unjust changes and seek redress, Validity of Contract:
specific task and there must be process is followed. A fixed term thereby upholding their rights Warranties by the employee
an agreement on the hours of contract is an agreement in which Moreover, contracts denying and maintaining fairness in the confirming their ability to do
work and the remuneration. It the length of the relationship statutory provisions are invalid workplace. what they sign up for and the
is advisable that the employer is fixed and agreed as part of and cannot be enforced. truthfulness of their declarations
makes the employment offer in the contract. The employer may Section 29 of the BCEA outlines Contract Recommendations about aspects such as
writing, providing the successful either specify a date that the the minimum requirements What is recommended to qualifications, experience, health,
candidate with a reasonable time contract will end or may identify that must be included in include in an employment accreditations, etc.
period in which to respond to the a specific event, that on account an employment contract contract are the following:
offer. of its completion, terminates the which include in summary, Termination of employment –
employment contract. It is not the full name and address ■ Probation: If such a clause is specific notice requirements.
Should the prospective included, the terms and
employer withdraw the accepted a requirement to serve notice of the employer, name and duration thereof must be The value of a well constituted
to an employee on a fixed term
offer prior to the employee occupation of the employee, stipulated in the contract. employment contract must not be
commencing work, the employer contract as the employee will be brief description of duties, place ■ Duration: Where the contract underestimated – it is a strategic
may face an unfair dismissal aware, as this is a vital part of the of work, employment start date, is a limited duration contract, instrument that empowers
agreement.
dispute in which the employer notice periods, hours of work, and especially if the employee employers in navigating
is likely be considered as acting Minimum Terms and remuneration and other cash earns less than the earnings the complexities in a highly
unlawfully. Conditions payments the employee is entitled threshold under the BCEA, regulated labour market. By
to, frequency of payment, leave
carefully drafting contracts that
While a written contract of The Basic Condition of days the employee is entitled to. then the reason for fixing the align with legal requirements,
employment is not strictly Employment Act (BCEA) sets duration of the contract must address unique business
necessary for the validity of out the minimum terms and It is not advisable to include be stipulated in the contract. needs, and proactively manage
the employment relationship, conditions of employment that the employers’ company policies “The Labour Relations potential disputes, employers
it serves as the foundation form the basis of protective in the employment contract, Amendment Act” came into can safeguard their interests,
between the employer and rules. These rules govern the reference to policies can be operation on 1 January 2015 foster productive relationships,
employee as it regulates the substance of the employment included, however not the actual and places significant and maintain their competitive
terms and conditions of relationship where employers policy, as these then become restrictions on the use of advantage as a business. 
employment, benefits, duties and may contract for more favourable the terms of employment, for ‘non-standard’ employees,
responsibilities and protects both conditions however employers example, including a maternity including fixed term and For more information, please contact
parties through legal compliance. may not contract with an leave policy with enhanced part time contracts. The use of Colette Tanner
employee for less than what is benefits. In the event where there fixed-term employment T: +27 (0)31 767 0625
Types of Contracts provided for in the BCEA. It is is an operational requirement to contracts in South Africa has E: colette@drg.co.za
An employee is defined as important to note that legislation revise the policy, the employer evolved significantly following W: www.drg.co.za
someone who in any matter is typically not included into is required to consult with the legislative changes brought
assists in carrying on or employment contract for example employee. If an employer makes about by the Labour Relations
unilateral changes without
conducting the business of the it is not possible to argue that an securing employee consent, mendment Act of 2014
employer. There are two broad employee is not entitled to leave (LRAA), which took effect on
categories in which to contract or overtime simply because the employees have the right to 1 January 2015. These
declare a labour dispute with the amendments were designed

16