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The Contract of Employment

If you agree to work for someone, and that person agrees to pay you for this work, then you and the employer have entered into a contract of employment. You are called the employee.

The type of work that you must do, hours of work, wages, a place to live (where appropriate), and so on can all be part of your agreement with your employer. These are called terms and conditions of employment. They are express terms of the contract.

Even if you and the employer did not talk about terms and conditions of employment, for example, taking annual leave, and it is the custom that all employees take annual leave, then you can also take annual leave. This is part of your contract, even if you did not talk about it. These are implied terms of the contract.

The law says that a contract does not have to be in writing. If two people speak and they agree about the contract, then this contract is called a verbal contract. A verbal contract is also legal and enforceable.

A written contract is better. If all the conditions of the contract are written on a piece of paper, and the employer signs the paper, then you have proof of what was agreed. This is useful if ever there is a dispute about what was agreed between you and the employer.

Section 29 of the Basic Conditions of Employment Act says that, except for employees working less than 24 hours per month and employers who employ less than 5 people, the employer must give employees certain particulars in writing about the job. These particulars include:

  • A description of the job
  • The hours that the employee will be expected to work
  • Ordinary and overtime rates of payment, including payment in kind (for example accommodation) and its value
  • Any deductions to be made
  • How much leave the employee will get
  • The notice period
  • The name and address of the employer
  • The date of payment

If an employee can’t read, the particulars must be explained in a language the employee understands.

If you have a contract, but you do not do what was agreed in the contract, then you break the contract. The law says that if one person breaks a contract, then the other person can use the law to force that person to do what was agreed or they can stop and withdraw form the contract. Breaking a contract is also called a breach of contract. (See s29(1)(a)-(p) of the Basic Conditions of Employment Act for particulars of employment that must be provided in writing to employees when they start their employment with someone)

A contract of employment must comply with terms and conditions of employment in the Basic Conditions of Employment Act (BCEA) , Bargaining Council Agreement or collective agreement or Sectoral Determination (depending on what the employee is covered by), and any other laws which protect employees such as the Labour Relations Act and the occupational Health and Safety Act. If a contract breaks any of these protective laws, it is not enforceable unless the conditions are more favourable to the employee.

If an employee is covered by the BCEA, terms and conditions of employment in the BCEA override those in any contract of employment which are less favourable to the employee than those in the BCEA. In other words the contract can not be less favourable to the employee than the conditions laid down in the law.

(See: Model Contract of Employment)

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