WHAT IS REQUIRED FOR A VALID CONTRACT OF EMPLOYMENT?
Whilst South Africans are by and large well informed on their Labour rights and the right to refer matters to the Commission for Conciliation Mediation and Arbitration. There appears to be a lack of understanding regarding the need for employment contracts.
In this article, we will focus on three important issues, namely:
– Is my Employer legally required to provide me with a contract or employment?
– What must be in a contract of employment?
– What happens if I do not have a contract of employment?
Is a contract of employment a legal requirement?
The South African Law of Contract does not require the parties to enter into a written agreement concerning any commercial matter unless the parties expressly agree to do so or a Statutory Instrument requires the existence of a written agreement.
The position in South Africa is covered by Section 29 of the Basic Conditions of Employment Act No 75 of 1997, which requires the Employer to issue “Written Particulars of Employment” at the commencement of the employment.
The Employer is thus required to provide Written Particulars of Employment which is not a formal Contract of Employment. However, the terms of the employment are captured in the document. Furthermore, the Employer must ensure that the particulars are in a language that the Employee can understand and that the document is updated as and when any changes occur.
What makes a contract of employment?
Having established that the Employer is required to provide Written Particulars of Employment, it is important to note what must be contained in such a document.
Fortunately, the Legislator has expressly stipulated what is required to be contained in the Written Particulars of Employment, namely:
– 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 employment contract, indicating a place reasonably accessible to the Employee where a copy of each may be obtained.
I don’t have a contract of employment. What now?
What happens in the unfortunate situation where an Employee is required to show that they are employed but have not been issued with Written Particulars of Employment?
Well, the Court’s view in Rumbles v Kwa Bat Marketing (Pty) Ltd  8 BLLR 811 (LC) at 815 was made clear where it was stated that a contract of employment “may be in writing or oral, and its terms may be express or tacit. There are no formalities required.”
Thus the Employee is not required to show a written agreement to prove employment. Further to this, the Court in Universal Church of the Kingdom of God v Commission for Conciliation Mediation and Arbitration and others  JOL 32275 (LC) made it clear that if any of the factors present in Section 200A of the Labour Relations Act No 66 of 1995 are applicable, then there is a rebuttable presumption that the parties are in an employment relationship which the Employer must challenge.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor any loss or damage arising from reliance upon any information herein. Please feel free to contact Meyer and Partners Attorneys Incorporated should you require further information or specific and detailed advice. Errors and omissions excepted (E&OE)
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