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Beware of changing employment contracts unilaterally

Ivan Israelstam

Many employers commonly (mistakenly) believe that they protect themselves by employing staff without a letter or contract. In fact, the opposite is true.

According to the law, it is not compulsory to have a signed employment contract but the Basic Conditions of Employment Act (BCEA) does require employers, to inform employees in writing, of their employment particulars, e.g.:

  • The employer’s name and address;
  • The employee’s job title or job description;
  • When he’ll start working for you;
  • His working hours;
  • His remuneration details; and
  • How much leave he is entitled to.

Why do I need to include these points in my employees’ employment contracts?

Because you need to prevent your employee from denying that he agreed to the terms and conditions contained in the employment contract and an employment contract, which is signed by you and your employee, prevents such misunderstandings and/or disputes.

You need to understand that labour legislation is there primarily to protect employees rather than employers. Therefore, you need to protect yourself by:

1.    Knowing all the labour acts;
2.    Knowing all the codes and regulations attached to the labour acts;
3.    Understanding the significance of this legislation for the employer;
4.    Including details, required by labour law, into signed employment contracts;
5.    Adding further clauses into employment contracts which are designed to protect you, the employer.

These include clauses to protect you from:

- Employee dishonesty;
- Moonlighting;
- Loss of clients;
- Misuse of telephones, equipment and electronic facilities;
- Absenteeism and arriving at work late;
- Confidentiality breaches;
- Incompetent employees; and
- Lawsuits from employees’ previous employers.

Make sure that you include all your policies in employment contracts

A great many employers have various types of policies but don’t include these in employment contracts. For example:

  • An employee breaches one of his employer’s policies and is fired. He takes his employer to the CCMA (he could also take his employer to a bargaining council).

    The employee then claims that the employer did not have such a policy and/or that he was never made aware of it. The onus is on the employer to disprove this claim.

    If the policy in question was included in the employment contract, which the employee signed, the employer would be able to prove that the employee knew about this policy.

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

  • 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, which is available from the HR department; and
  • The employee has read and understood the employer’s disciplinary rules and agrees to comply with these.

Don’t take it for granted that your employees understand every single word in their employment contracts!

This is especially true where the contract is written in complex legalese or in a language that is not the employee’s home language. In such cases, I advise you to replace legalese with plain English and to translate the contract into the employee’s home language.

Employers should further understand that the merely because a requirement is present in an employment contract, this will not always mean that the employee can be forced to honour the 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, this agreement would have been unconstitutional. The employer was ordered to pay the employee one year’s remuneration.

So to protect yourself in employment relationships with your employees, make sure that you:

  • Understand that labour law gives you far fewer rights than obligations;
  • Accept that your labour law obligations are numerous and complex;
  • Understand the law and its ramifications; and
  • Design employment contracts that protect you from losing labour disputes.