An employer is obligated to their employees to supply, in writing, the terms and conditions of their employment and this must happen when the employee starts work.
Section 29 of the Basic Conditions of Employment Act (BCEA) stipulates that certain information with regard to employment must be recorded in writing.
This information includes, but is not limited to the following:
Full name and address of the employer;
Name and occupation of the employee and a description of the type of work that the employee will do;
The place of work;
Date of employment;
Working hours and on which days the employee will work;
The employees salary and how it is calculated;
Any deductions that will be made from the employees salary;
This Act applies to all employees and employers save for people who are:
part of the National Defence Force;
part of the National Intelligence Agency;
part of the South African Secret Service;
unpaid volunteers working for an organisation serving a charitable purpose.
The Act does not stipulate that the information must be recorded in a contract of employment, but merely that the information must be recorded in writing and that it must be kept for at least three years after the termination of the employment contract.
Employers can therefore make use of letters of employment, or alternatively formal contracts of employment. Contracts of employment or letters of employment must be updated and the employees must receive new copies thereof when:
The law changes;
The employer and employee make changes to the terms and conditions of employment and both parties are in agreement with the changes.
If you've employed employees and you did not comply with the Act then you may be prosecuted as you are breaking the law. Make sure that you that you comply with the law and, if you have not done this in the case of some employees, rather list the terms and conditions of employment (in writing) late than not at all - do it immediately!
You employ Marco as a Webmaster and he starts work with you on the Monday without a letter of employment or an employment contract. Included in Marcos duties is working at the weekends. A week later you ask Marco to sign an employment contract but he refuses because the contract states that he will work on weekends; he is not willing to work on weekends; this issue was never discussed prior to Marco starting his employment with you.
The employer cannot now cancel the contract as Marco has already started his employment with the employer and Marco will be able to go to the CCMA as he is now viewed as your employee.
By: Martin Vermaak, Attorney