Luphert Chilwane

It is unfortunate there are employees who still work without contracts of employment.

This practice often creates problems for both employer and employee, especially when faced with disciplinary matters or disputes either at the applicable bargaining council or the CCMA.

According to Jonathan Goldberg, a labour law expert and CEO of the Global Business Solutions, the problem was often seen in the small and medium businesses, farms and domestic employment.

“Invariably it will give rise to a situation of ‘my word against yours’. In this instance the employer would be hard-pressed to prove anything in relation to the employment relationship when there is nothing that has been reduced to writing and signed by both the employer and employee,” said Goldberg.

He said the Basic Conditions of Employment Act, 1997 required an employer to provide the employee with a written document containing the relevant details relating to the contract of employment.

“This should include details such as the details of the employer, name and occupation of employee, the place of work, hours and days of employment, method and frequency of payment, the notice period applicable and so on. Both parties need contracts to cover themselves,” he said.

Goldberg’s observations were echoed by Manene Samela, general secretary of the National Council of Trade Unions (Nactu).

Samela said harsh punishements should be handed out to employers who contravened some of the contents entailed in the Basic Conditions of Employment Act.

“These problems are there and they are growing. Labour brokers are the culprits and workers end up struggling when they have to claim their benefits,” he said.

Virgil Seafield, director of employment standards at the Department of Labour said the current laws did not require the employer to have written contracts with employees and neither was that an obligation.

“There is no obligation at all. Instead the employer has a responsibility to prove the employment relationship, especially when faced with disciplinary matters or disputes,” said Seafield.

“I agree with those who argue that the practice creates problems, but who is going to police the existence of such contracts?” he asked.

He said the law created a framework to follow, which should be in line with the basic conditions of employment.

“There is an obligation to provide an employee with the particulars of employment and if an employee is not able to understand the written particulars, the employer must ensure that they explain it to the employee in a language and in a manner that they understand,” Seafield said.

Goldberg said even though there was no requirement in the country’s common law for an employer to conclude a written contract of employment with an employee, it was desirable to do so in order to eliminate any uncertainties and avoid any disputes.

“A frequent question that arises is whether employers can instruct employees to sign contracts of employment after they start to work. The answer is ‘yes’.

“This is as long as the written contract reflects the same terms and conditions of the unwritten agreement that was agreed upon between the parties,” he said.

He urged employers to conclude written contracts of employment and encouraged employees to do the same in order to clarify the terms and conditions that will regulate their relationship.