INFORMAL EMPLOYMENT DOES NOT PROTECT EMPLOYERS

By lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 0828522973 or on e-mail address: [email protected].

It is a common erroneous belief amongst employers that they protect themselves by employing staff without a letter or contract. In fact, the converse is true. The law does not make signed employment contracts compulsory, but the Basic Conditions of Employment Act (BCEA) does require employers to inform employees in writing of their particulars of employment such as:

• • • The employer’s name and address
    • The employee’s job title or job description
    • Starting date
    • Working hours
    • Remuneration details
    • Leave

The reason that employers need to put such provisions into the form of a contract rather than just a letter and to get it signed is not because the law insists on it. It is rather because the employer needs to prevent the employee from denying that he/she agreed to the terms and conditions contained in the document. A contract signed by both parties prevents such misunderstandings and/or disputes.

Employers need to understand that labour legislation is there primarily to protect employees rather than employers. Therefore, employers need to protect themselves by:

• • • Knowing all the labour acts
    • Knowing all the codes and regulations attached to the labour acts
    • Understanding the significance of this legislation for the employer
    • Including details required by labour law into signed employment contracts
    • Adding into employment contracts further clauses designed to protect employers.

These include clauses to protect employers from:

• • • Employee dishonesty
    • Moonlighting
    • Loss of clients
    • Misuse of telephones, equipment and electronic facilities
    • Absenteeism and late coming
    • Breaches of confidentiality
    • Incompetent employees
    • Law suits from the employee’s previous employers

A great many employers have policies of various types but fail to include these in employment contracts. When the employee breaches the policy and gets fired the employer ends up at the CCMA or at a bargaining council. Should the employee then claim that the employer did not have such a policy and/or that the employee was never made aware of it then the employer is placed under onus to disprove this claim. Where the policy in question has been included in the employment contract signed by the employee the employer will have little difficulty in discharging this onus.

Even if the policy is not spelt out in the employment contract but is alluded to in the agreement the employer will have some protection. For example, it is not reasonable for the employer to include its entire disciplinary code in its employment contracts. However, the employer can include in the employment contract clauses such as:

• • • The employee agrees to comply with the attached rules of conduct
    • The employee agrees that he/she will acquaint him/herself with the employer’s disciplinary code available from the HR Department
    • The employee has read and understood the employer’s disciplinary rules and agrees to comply therewith.

However, employers cannot always take for granted that employees understand the contents of employment contracts. This is especially so where the contract is written in complex legalese or in a language that is not the employee’s home language. In such cases employers are advised to replace legalese with plain English and to translate the contract into the employee’s home language.

Employers should further understand that the mere presence of a requirement in an employment contract will not always mean that the employee can be forced to honour such requirement. In the case of Wallace vs Du Toit (2006, 8  BLLR 757) the employer fired the employee for being pregnant. The employer claimed that the employee had agreed that her employment would be terminated if she fell pregnant. The Court found that even if the employee had entered into a contract agreeing to such a thing such agreement would have been unconstitutional. The employer was ordered to pay the employee one year’s remuneration.

Employers need therefore to:

• • • understand that labour law gives them far fewer rights than obligations
    • accept that their labour law obligations are very numerous, complex and extremely heavy
    • protect themselves by understanding the law and its ramifications
    • design employment contracts that protect them from losing labour disputes

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