What is a Labour Lawyer?
Information extracted from the internet, not original of this website:
Contrary to popular believe there is no requirement in terms of labour legislation that an employer and employee must enter into a written contract of employment in order for an employment relationship to exist. This is confirmed by proposed changes to section 186 (1)(a) of the Labour Relations Act where we will see the deletion of the word “contract”. However in terms of section 29 of the Basic Conditions of Employment Act an employer must present to employees in writing, on the day they start to work for the employer, with particulars regarding the employment relationship. This is normally done in the form of a contract of employment, making the document formal and binding on both parties.
The importance of an employment contract and the conclusion thereof prior to commencement of employment cannot be emphasised enough. The contract of employment formalizes the relationship and creates certainty for both parties in the employment relationship. Without a contract of employment employers will find it for instance difficult to prove that the relationship with the employee was for a limited duration or that the employee for instance agreed to work overtime in terms of section 10 of the BCEA.
For some strange reason employees will almost always refuse to sign a contract of employment after commencing employment. The reasons for this could be that the employee believes that the employer is trying to exploit him by inserting something in the contract to which they did not agree, or simply because he (foolishly) believes that he will be untouchable and not bound by the rules of the company in the absence of such an agreement. The latter is definitely not true and such employees will quickly learn that the company’s rules and policies are not employment conditions and that if they were aware of such rules or could reasonably have been expected to be aware of them then they may face disciplinary action.
When any matter listed above changes the written particulars must be revised to reflect the change(s) and the employee must be supplied with a copy of the document reflecting the change. If an employee is not able to understand the written particulars, the employer must ensure that they are explained to the employee in a language and in a manner that the employee understands. The written particulars in terms of section 29 must be kept by the employer for a period of three years after the termination of employment.
So how must employers deal with employees that for some strange reason refuse to sign their employment contracts? Well the answer should be simple and that is that if the applicant was presented with a contract prior to commencement of employment and refused to sign the agreement, then no agreement was reached and the applicant will not work for the employer and cannot be considered to be an employee of the employer.
In most cases however the applicant became an employee on the day that he / she commenced employment in the absence of a signed employment agreement. In such cases I would definitely discipline the person that allowed this to happen in the first place. If the employee now refuses to sign the agreement, the employer may have to become creative and first use a bit of “child psychology” in order to confirm the specifics of the employment relationship. It is therefore suggested that the rights of the employee in terms of the BCEA and the verbal agreement held between the parties are confirmed instead of agreed upon.
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