Many businesses – especially small businesses and start-ups – are not able to afford the services of an attorney for the purposes of drafting an employment contract. They may rely on a template contract that they download or purchase from a ‘reputable’ source and make additions to which, they see, as being necessary for their particular workplace.
However, should it come to pass that the employment contract is tested at the Commission for Conciliation, Mediation and Arbitration (CCMA) or the Labour Court, the question has to be asked as to whether or not this DIY contract will afford you, the employer, the protection that it purports to.
You cannot get an employee to sign away their rights
All contracts of employment – as well as workplace policies and procedures – must be in line with the rights afforded to employees under the Basic Conditions of Employment Act (BCEA). If they are not, the part of the contract or the policies that is contrary to the BCEA is null and void.
Contract templates, which are obtained from reliable sources, should be in accordance with the Act. However, the challenge that HR will face in modifying contracts of employment to suit various positions in the company is that the HR executive may not be that familiar with the legal requirements contained in the BCEA and, as such, draft the contract in such a way that is contrary to these employees’ rights. Should the contract be challenged, it may become costly to make sure that you win your case.
A case in which an employment contract, drafted by HR, was challenged is National Union of Metalworkers of South Africa and Another v Transalloys (Pty) Ltd (JS237/15) [2017] ZALCJHB 364 (21 September 2017). In this case:
- Three employees were appointed as lab technicians at one salary level. This was stated in their contracts of employment which were signed by both parties, thus making them legally binding documents.
- It was discovered that the other lab technicians in the company earned a lower salary. The HR manager – who had drafted the contracts with the erroneous salary figure – was given a written warning.
- The HR manager then approached the employees and stated that they had been paid an incorrect salary and were going to be paid less, as of the following month. However, they would be able to keep the difference between the higher amount and the lower amount that they had already been paid.
- The employees filed a case against their employer saying that their contracts had been breached as these documents contained the fact that they would be earning the higher salary.
- It was found that the contract had not been breached but only corrected.
Contact Global Business Solutions
If you have any further questions regarding employment contracts, or any other labour law-related matter, please contact Jonathan Goldberg . Follow this link for more information.