Employment and Labour Law

 

 

 

While written employment contracts are always recommended, South African law does recognize verbal agreements as legally binding, provided they contain all the essential elements of a valid contract: offer, acceptance, mutual consent, and consideration.  However, proving the terms of a verbal agreement in court can be significantly more challenging than proving a written contract.

Verbal Agreements -  Legally Binding but Difficult to Prove

Although it's best practice to have employment contracts in writing, South African law acknowledges the validity of verbal agreements.  The primary hurdle with these agreements lies in proving their exact terms should a dispute arise. Without a written record, it often becomes a matter of one party's word against another's.

In South Africa, an employee can dispute a term in their employment contract even after signing it. If an employee believes a term is unfair, or that it infringes on their rights as protected by the Basic Conditions of Employment Act (BCEA), they can pursue recourse.  However, it's always recommended that employees first attempt to resolve the issue internally with their employer through open communication, negotiation, or consultation.

Key Considerations to remember! 

Unilateral Changes are Unlawful: Employers cannot unilaterally change the terms of an employment contract without proper consultation and agreement with the employee. Significant changes require mutual consent.
Dispute Resolution If internal resolution efforts fail, the employee has avenues for dispute resolution. They can refer a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) or, in certain circumstances, approach the Labour Court for legal intervention.
Section 77 of the BCEA This section of the BCEA specifically provides employees with the right to challenge contractual terms they deem unfair in the Labour Court.
Legal Advice is Essential: If you are considering disputing a term in your employment contract, it is highly advisable to consult with an employment law specialist at Aucamp Attorneys. We can assess your situation, explain your rights and options, and help you determine the most appropriate course of action. Understanding the legal complexities of employment contracts is crucial for a successful outcome. Contact us today for a consultation.

Unilateral Changes to Job Requirements -  What are Your Rights?
In South Africa, employers cannot unilaterally change an employee's job requirements.  Significant alterations to an employee's duties and responsibilities must be discussed and agreed upon with the employee, typically through a fair consultation process.  This principle is protected by the Labour Relations Act (LRA), which prohibits unilateral changes to employment conditions.

Protecting Your Contractual Rights
Employees have legal recourse if their employer attempts to unilaterally change their job description.  Section 77(3) of the Basic Conditions of Employment Act (BCEA) empowers employees to approach either the civil courts or the Labour Court to resolve any disputes concerning their employment contract.  Importantly, this right applies even if the employment contract is not in writing.  Disputes relating to oral or tacitly agreed contracts can also be taken to court.

Unfair Dismissal
Furthermore, if an employee is dismissed for refusing to accept unilateral changes to their employment conditions, they may have grounds to sue the employer for automatically unfair dismissal.

Need Legal Assistance?
If you are facing unilateral changes to your job requirements, it's essential to understand your rights.  Contact Aucamp Attorneys today for expert legal advice. We can help you navigate the complexities of employment law and protect your interests.

Your rights when your job ends are protected by law. We have summarised a few of the key points

  1. Fair Dismissal  Your employer needs a valid reason (like misconduct, poor performance, or retrenchment) and a fair process (like a hearing or consultation).
  2. Notice You and your employer must give notice before termination.  The law sets minimums, and your contract may require more.
  3. Severance Pay You usually get severance pay if you're retrenched (one week's pay per year of service).  Other situations may also qualify.
  4. Unfair Dismissal If your dismissal is unfair, you can challenge it at the CCMA.  They may order reinstatement or compensation.
  5. Other Rights You're entitled to a certificate of service, payment for unused leave, and possibly UIF benefits.

Get Legal Help Your contract is important.  If you're facing termination, contact Aucamp Attorneys for expert legal advice to protect your rights! 
 

Some of the basic rights You as an employee have are 

  1. Not to be unfairly dismissed or discriminated against
  2. To be provided with appropriate resources and equipment
  3. To have safe working conditions
  4. To receive the agreed remuneration on the agreed date and time
  5. To receive fair labour practices
  6. To be treated with dignity and respect
  7. To non-victimisation in claiming rights and using procedures
  8. To leave benefits and other basic conditions of employment as stipulated in the BCEA.
     

 

 

BASIC CONDITIONS OF EMPLOYMENT AND CONTRACTS

Understanding South African Employment Law: The BCEA and Employment Contracts

Employment Contracts: The Foundation of the Employment Relationship

The employment contract forms the cornerstone of the employer-employee relationship. It outlines the terms and conditions of employment, defining the roles and responsibilities of both parties. While not always explicitly written, an employment contract exists whenever an individual performs work for another under their direction and control.

Types of Employment Relationships

  • Employee: An individual who works for another person or for the State and receives remuneration. This includes those who assist in carrying on an employer's business.
  • Independent Contractor: An individual who provides services to a client on a contractual basis, typically operating their own business, setting their own hours, and invoicing for services. Key distinctions include:
    • Independent contractors are typically registered for income tax purposes.
    • They manage their own business operations and may work for multiple clients simultaneously.
    • They are responsible for their own taxes, insurance, and other business-related expenses.

Importance of a Written Contract

While not always legally required, a written employment contract offers numerous benefits

  • Clarity and Certainty: It clearly outlines the terms of employment, minimizing ambiguity and potential disputes.
  • Compliance with the BCEA: The contract ensures compliance with the Basic Conditions of Employment Act (BCEA) by incorporating the required particulars of employment.
  • Protection for Both Parties: It provides a clear framework for the employment relationship, protecting the rights and obligations of both the employer and employee.
  • Evidence: In the event of a dispute, the written contract serves as crucial evidence of the agreed-upon terms.

Key Elements of an Employment Contract

  • Job Description: Clearly defines the employee's duties, responsibilities, and reporting lines.
  • Remuneration: Specifies the salary, wages, bonuses, and any other forms of compensation.
  • Working Hours: Outlines normal working hours, overtime provisions, and meal breaks.
  • Leave Entitlements: Details annual leave, sick leave, family responsibility leave, and other forms of leave.
  • Confidentiality: May include clauses regarding confidentiality of company information.
  • Termination of Employment: Specifies notice periods, grounds for dismissal, and procedures for termination.
  • Dispute Resolution: May outline procedures for resolving disputes, such as mediation or arbitration.

The Basic Conditions of Employment Act (BCEA)

The BCEA sets minimum standards for employment conditions in South Africa, including

  • Working Hours: Limits normal working hours, regulates overtime, and provides for meal breaks.
  • Leave: Establishes minimum entitlements for annual leave, sick leave, and family responsibility leave.
  • Remuneration: Sets minimum wage rates and regulates the payment of wages.
  • Health and Safety: Requires employers to provide a safe and healthy working environment.
  • Prohibition of Discrimination: Prohibits discrimination based on race, gender, religion, and other protected grounds.

Compliance with the BCEA

Employers must ensure that their employment contracts and workplace practices comply with all relevant provisions of the BCEA. Non-compliance can result in penalties, including fines and legal action.

Conclusion

Understanding and adhering to the provisions of the BCEA and ensuring that employment contracts accurately reflect the terms of employment are crucial for both employers and employees. A well-drafted and compliant employment contract fosters a positive and productive working relationship while minimizing the risk of legal disputes.