Chapter 6
More From this Chapter

How can a contract of employment be used?

Suppose the employer breaks a contract of employment. In that case, an employee can sue the employer in a civil court case for breach of contract or can refer the dispute to the Department of Employment and Labour (for example if you have not been paid your annual leave or overtime payment). The employee (who earns less than the earnings threshold of R21 198 per month) can also refer a case to the CCMA in terms of Section 73A of the Basic Conditions of Employment Act (BCEA) regarding a failure to pay any amount owing to the employee in terms of a contract of employment, a Sectoral Agreement or a Collective Agreement. This involves sending the CCMA Referral of Dispute Form 7:11 to the employer and then sending it to the CCMA and ticking Section 73A under ‘Nature of Dispute.’ (See Minimum Wages; See Enforcement and dealing with disputes about minimum wages)

It is easier to prove that an employer broke a contract of employment if the contract is in writing. If the contract is verbal, it is always better to have witnesses. If you don’t have witnesses, then it is the employee’s word against the employer’s word. (See Civil claims) The employee is always entitled to at least the terms and conditions in the BCEA. If the breach of contract goes against a term or condition in the BCEA then the employee (who earns less than the threshold) can refer a case to the CCMA in terms of Section 73 A of the BCEA concerning a failure to pay any amount owing to the employee, in terms of a contract of employment, a Sectoral Agreement or a Collective Agreement. The employee can also go to the Department of Employment and Labour and lay a complaint. The Department will investigate the complaint and if it is found that the employer has not followed the contract of employment or the BCEA, then the Inspector may issue a Compliance Order which tells the employer to comply with the BCEA.