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It is quite surprising just how many employers out there do not provide employment contracts. They seem to have some wild dream that "if it is not in writing, then it does not exist," or another dream is that "if there is no written contract, then we can do what we like with our employees." These are not dreams - these are nightmares - which are sure to land the employer in hot water at the CCMA. Every employer is required by law (Basic Conditions of Employment Act – section 29) to provide the employee with a written contract of employment not later that the first day of commencement of employment.


Failure to do so could land the employer in jail for a term of imprisonment (section 93 of the BCEA) or to liability for a hefty fine (schedule 2 – BCEA)

 

A contract is usually entered into between two or more parties, in order to protect the parties to the contract against any breach or unlawful action in terms of the contract itself.

  • When you get married, you enter into a contract.

  • When you buy a house or car, you enter into a contract.

  • When you get divorced, you enter into a contract.

  • So then why not have a contract of employment with your employees?

    

The contract of employment is a vital document - it regulates the terms and conditions of employment between the employer and the employee. It stipulates what the employer will provide in terms of benefits, and in terms of labour legislation, and it specifies what the employee is entitled to receive in terms of company policy, company benefits, and labour legislation.

 

It also regulates the behaviour of the employee in the workplace - because all company policies and procedures, as well as your disciplinary code, form a part of the employment contract. If there is no contract regulating these matters, it is extremely difficult to take action against the employee - if there is no contract, or if the employee has never been informed, then he has the right to conclude that it does not exist.

 

They are various types of employment contract such as permanent employment, fixed term employment, probation employment, and project employment.  We will look at each one in turn.

 

The contract of permanent employment

The first thing that happens is that an offer of permanent employment is given in writing to the prospective of the employee.

The prospective employee then accepts the offer of employment in writing.

The permanent contract of employment is then entered into.

 

The Fixed Term Contract of Employment

The fixed term contract of employment is in fact almost identical to the contract of permanent employment.

The only real difference is that the fixed term contract of employment will stipulate a starting date and an ending date.

The contract will state that "Upon the attainment of (state ending date) this contract of employment will terminate, and the employment relationship between the employee and the employer will cease.

The employee will no longer be employed by the employer as from (state ending date.)

Apart from this clause, the contract will be the same as the permanent contract of employment, except that in the fixed term contract the employer will stipulate where the benefits such as pension, medical aid, provident fund, any group life assurance facility, etc is applicable or not applicable to the fixed term contract.

 

A further important paragraph to be included would be as follows:

      

"This contract of employment may be terminated by either party to the contract providing to the other party to the contract, 1 month written notice of intention to terminate, for any reason recognised in law as being sufficient. The employer may terminate this contract of employment at any time during the duration of the contract, for reasons of the incapacity or misconduct of the employee, or the operational requirements of the employer."

       

Should this contract be terminated for any of the above reasons, the employee agrees that he shall have no claim against the employer for any outstanding benefit, including remuneration, to the end of the contract."

        

Annual leave and sick leave

An employee on fixed term contract is entitled to paid annual leave and paid sick leave (from the first day of employment ) , as well as family responsibility leave (only after 4 months employment), in terms of the Basic Conditions of Employment Act.

 

The temporary contract of employment

This is in fact merely another name for a fixed term contract of employment, and the same stipulations apply.

     

A further important paragraph to be included would be as follows:

"This contract of employment may be terminated by either party to the contract providing to the other party to the contract 1 month written notice of intention to terminate, for any reason recognised in law as being sufficient.  The employer may terminate this contract of employment at any time during the duration of the contract, for reasons of the incapacity or misconduct of the employee, or the operational requirements of the employer.

           

Should this contract be terminated for any of the above reasons, the employee agrees that he shall have no claim against the employer for any outstanding benefit, including remuneration, to the end of the contract."

 

The project contract of employment.

 

Here again, the project contract of employment is also in fact a fixed term or temporary contract of employment. The difference is that instead of stipulating a starting date and an ending date (a contract which runs according to time,) the project contract of employment is a contract where an employee is employed by the employer to complete a certain project. In other words, the date of completion of the project is unknown - it may be six months, it may be 12 months or even longer.

       

Thus, the contract will stipulate wording something like:

" the employment shall commence on (stipulate starting date) and shall end upon completion of the project."

   

A further important paragraph to be included would be as follows:

 

"This contract of employment may be terminated by either party to the contract providing to the other party to the contract 1 month written notice of intention to terminate, for any reason recognised in law as being sufficient. The employer may terminate this contract of employment at any time during the duration of the contract, for reasons of the incapacity or misconduct of the employee, or the operational requirements of the employer. Should  this contract be terminated for any of the above reasons, the employee agrees that he shall have no claim against the employer for any outstanding benefit, including remuneration, to the end of the contract."

          

The contract of probationary employment. Conditions relating to probation are usually stipulated in the contract of permanent employment. It is however, important that the employer should stipulate all the conditions applicable to the probation period.

 

It is important that is a minimum, the following should be stipulated :

 

[a] that the period of probation will not be extended. The reason for this is that the employer is the best judge of whether or not a particular employee is going to "make the grade" or not. The employer is also the best judge of how long it should take a newly employed person to " make the grade."

 

If the employee is unable to prove himself within the stipulated period of probation (say three months) then our view is that any extension of time, in itself, will not achieve anything. In other words, if the employee is unable to prove himself within the reasonable period of time afforded by the employer, then he is unlikely to ever be able to prove himself.  There is therefore no point in extending the period of probation - it simply wastes the employer's time and money.

 

Employers must take note of the following extract from the Schedule 8 of the Labour Relations Act (The Code of Good Practice – Dismissal.):

 

8 Incapacity: Poor work performance –

 

(1) A newly hired employee may be placed on probation for a period that is reasonable given the circumstances of the job. The period should be determined by the nature of the job, and the time it takes to determine the employee's suitability for continued employment.  When appropriate, and employer should give an employee whatever evaluation, instruction, training, guidance or counseling the employee requires to render satisfactory service. Dismissal during the probationary period should be preceded by an opportunity for the employee to state a case in response and to be assisted by a trade union representative or fellow employee.

 

(2) After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has:

  • (a) given the employee appropriate evaluation, instruction, training, guidance or counseling; and

  • (b) after a reasonable period of time for improvement, the employee continues to perform unsatisfactorily.

     

(3) the procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal, to remedy the matter.

    

(4) in the process, the employee should have the right to be heard and to be assisted by a trade union representative or fellow employee.

   

For more information contact [email protected] or visit www.labourguide.co.za

 

What does POPI compliance mean?

By Jan du Toit

 

Latest developments – Registration of Information Officers:

 

On 17 May 2021 the Information Regulator’s long awaited online portal went live for the registration of Information and Deputy Information Officers.

 

The Information Officer of a Responsible Party is the person at the head of your company (CEO or MD) or any person acting in such capacity, or specifically appointed by the MD or CEO to be the Information Officer. Registration must be completed before the end for June 2021.

 

The address for the portal is  https://justice.gov.za/inforeg/portal.html   

 

The following information is required to successfully register: 

  • Company name.

  • Company registration number.

  • Company type.

  • Company physical and postal addresses.

  • Company telephone and fax numbers.

  • Information Officer gender, nationality, full name and surname, ID or passport number.

  • Deputy Information Officers same details as per above.

 

POPIA Compliance – what must be done?

With a little more than a month left before POPI becomes fully effective, many employers may find themselves out of time to become fully compliant to amongst other considerations, the 8 processing conditions prescribed in the Protection of Personal Information Act.

 

To be considered compliant the following must be considered and applied in the business of a Responsible Party before 1 July 2021. 

  1. POPI training / awareness sessions for the CEO / MD, managers and others tasked with the company’s POPI compliance project. Have a look on our website for the next POPIA training dates.

  2. Compliance audit to be conducted company-wide per department / division to determine the current processing practices within the organization and to establish what needs to be done to be compliant.

  3. Correction of contraventions as identified, and to introduce reasonable technical and organizational measures to prevent the loss or unauthorized access of Personal Information.

  4. Introduction of Data Subject rights and consent in the business through policies and consent clauses / paragraphs / contracts.

  5. The introduction of a PAIA manual (Promotion of Access to Information Act) that incorporates data subject rights and participation in terms of POPIA. This manual must be published on one of the company’s websites. It is also important to note that the current exemption granted by the Minister of Justice for some business to not have such a manual in place currently, expires at the end of June 2021.

  6. General staff POPI policy and legislation awareness training.

  7. Registration of the company’s Information Officer (the CEO, MD or any person acting in such position).

  8. Follow-up assessment on compliance measures and adherence thereto.

 

It is important to note that no institution, not even the Information Regulator, can “accredit” any Responsible Party in South Africa to be compliant in terms of legislation. Compliance (or otherwise) will only be determined should an investigation be launched by the Information Regulator following a complaint. Should such an investigation confirm a lack of compliance, consequences such an administrative fine not exceeding R10m may follow (which one may luckily pay off in instalments). Further to this those whose rights are infringed upon by a Responsible Party not adhering to the requirements of POPIA, may also institute civil proceedings. Such  proceedings may result in compensation being awarded for loss, as well as aggravated damages determined at the discretion of the court.

 

In terms of section 19 of the Act, the Responsible Party (business owner / employer) is required to introduce reasonable organizational and technical measures to secure the integrity and confidentiality of Personal Information. The organizational measures referred  to above includes inter alia both internal and external policies to introduce the principle of protection of personal information in the workplace, as well as the rights of data subjects.

 

To allow you more time to focus on your business, the author of this article compiled a bundle of detailed policies for your business, ready to use. This includes all relevant forms to be used and a template document with draft consent clauses / paragraphs / rules  to be incorporated into service and employment contracts, job applications, credit and other applications forms, WhatsApp and Facebook groups / pages, and Independent Contractor agreements.

 

Also included is an Operator Agreement as required in terms of section 21 of the Act and a consent letter for existing clients / service providers, to agree to the continued processing of their Personal Information beyond June 2021.

 

The policies bundle includes: 

  • Privacy notice template to be published on your website.

  • Personal information protection policy.

  • Personal information retention policy.

  • Data breach policy.

  • Data breach register - form.

  • Data breach report - form.

  • Data security policy.

  • Data subject access request policy and procedures.

  • Data subject access request forms.

  • Processing agreement with third parties as Operators - contract.

  • Data subject participation - draft consent paragraphs / clauses to be incorporated into service and employment contracts, job applications, credit and other applications forms, WhatsApp and Facebook groups / pages and Independent Contractor agreements

  • Guidelines on the appointment of deputy information officers, inclusive of appointment letter.

 

For only R3750 you can now order you set of POPI policies, ready to use. Contact Jan du Toit for further assistance at [email protected]

 

 

 

 

 

 

 

 

Courses and Workshops

 

                   

Strategic Human Resources Management (HRM) and - Business Partnering

27, 28 & 29 October 2021 (08:30 - 16:00)

Interactive Online Course

Employment Equity Committee Training

27 October 2021 (09:00 - 16:00)

Interactive Online Course

Health and Safety Representative and Committee Training Course

28 October 2021 (08:30 - 16:00)

Interactive Online Course

Managing Day to Day Issues/ Problem Employees Full day workshop

28 October 2021 (09:00 - 16:00)

Interactive Online Course

Managing Poor Performance/ Incapacity

29 October 2021 (09:00 - 12:00) (Fully Booked)

Interactive Online Course

19 November 2021 (09:00 - 12:00)

Interactive Online Course

Management and Leadership Skills

10, 11 & 12 November 2021 (08:30 - 16:00)

Interactive Online Course

Basic Labour Relations

12 November 2021 (09:00 - 16:00)

Interactive Online Course

The OHS Act and the Responsibilities of Management

18 November 2021 (08:30 – 16:00)

Interactive Online Course

AARTO and the Impact on Your Business

19 November 2021 (09:00 - 12:00)

Interactive Online Course

Compensation for Occupational Injuries and Diseases Course

25 November 2021 (08:30 - 16:00)

Interactive Online Course

POPIA: Protection of Personal Information Act

26 November 2021 (09:00 - 12:00)

Interactive Online Course

 

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