June 12, 2020

Make sure you understand the employment contract you signed.

As a young person, you will reach a stage in your life when your high school years are done or tertiary studies are completed. The next step is joining the work force. However, will you know what your basic employment rights are when you eventually get a job? This article will give some clarity on the employment contract and the terms and conditions set out in it.

What is an employment contract?

> An employment relationship comes into existence when an employee agrees to place his/her services at the use and control of the employer. The employer then agrees to pay the employee a salary in return for the service. This means: “No work = No Pay”.

> This agreement is contained in what is known as an employment contract and includes all the terms and conditions of the employment relationship, such as working hours, leave, salary and so on.

> An employment contract can be for an agreed period of time (such as for a three month period) or it can be permanent and only end when cancelled by either the employee or employee. 

 > An employment contract can be verbal (just by spoken word) or in writing (a physical contract signed by the employer and employee). However, it is strongly recommended to get the employment contract in writing to avoid unnecessary disputes.

What terms and conditions of employment are automatically included by law?

> The Basic Conditions of Employment Act (“BCEA”) provides for the minimum terms and conditions of employment. This means that no contract of employment may be less favourable than the following:

- Work hours: an employee may not work more than 45 hours a week or more than 8 hours a day (if a week is 6 days long) or 9 hours a day (if a week is 5 days long).

 - Overtime: can only be by agreement and may not be more than 10 hours' overtime per week. Overtime may also not cause the employee to work more than 12 hours per day. An employee must be paid 1.5 times his/her daily wage for the overtime worked or get time off instead of payment. An employee who usually does not work on a Sunday is entitled to twice his/her daily wage.

 - Lunch: an employee must be given a 60-minute break after 5 continuous hours of work.

 > As an exception to the general rule of “No work = No Pay”, the BCEA allows an employee to take certain types of leave and still be paid for the time spent not working. The BCEA provides for the following minimum periods for paid leave:

  - Annual leave: 15 work days during a 12 month period.

  - Sick leave: 30 days' sick leave on full pay during a 36-month period. A medical certificate must be provided in certain instances, for example, if the employee is away from work due to illness    for  more  than  two  days.

-  Family responsibility leave: after the first 4 months of employment, 3 days' leave on full pay during a 12-month period (an employee must work more than 4 days a week).

> If an employee does not qualify for sick leave, then the leave may be unpaid and the employee may institute a claim with the Unemployment Insurance Fund (“UIF”). Alternatively, the employee may arrange with the employer that the days off be considered as annual leave.

When can the employment contract end?

> The employment contract can end by written notice, for example, if the employee resigns. However, the BCEA provides for certain minimum notice periods to apply, such as two weeks' notice if an employee has been employed for more than six months or four weeks' notice if employed for longer than a year.

> A dismissal is when an employment contract is terminated by the employer against the will of the employee. For example, the employee has been found guilty of misconduct (such as theft, being absent without authorisation and so on).

> The Labour Relations Act (“LRA”) provides every employee with the right not to be unfairly dismissed. This means that there must be a fair reason for the dismissal and a fair procedure must be followed leading up to the dismissal. If an employee feels that s/he was unfairly dismissed, a dispute to the CCMA or relevant Bargaining Council must be referred within 30 days from date of dismissal.