By Barend Smit
Question:
I am working without an employment contract. Is it legal?
Answer:
There is no general requirement in our labour law that an employee must have a formal employment contract which regulates all aspects of the employment relationship.
All persons regarded as employees are under the protection of existing labour legislation and principles according to section 83A of the Basic Conditions of Employment Act, section 200A of the Labour Relations Act and Common Law.
If any person’s status as an employee is in dispute during labour litigation, the matter is resolved by the CCMA, the bargaining council for a specific industry, or the Labour Court.
The fact that you do not have a formal employment contract, does not mean that you have no protection and the question whether a person is an employee is determined according to the guidelines and criteria of the relevant legislation and common law.
However, it is desirable for employees to have employment contracts which regulate important aspects like job descriptions, business hours, remuneration, disciplinary codes, etc. to avoid unnecessary disputes and to have clarity regarding the right and responsibilities of both parties in the employment relationship.
If there is no comprehensive employment contract, employees are entitled to request that the employer complies with section 29, 31 and 33 of the Basic Conditions of Employment Act.
Section 29 requires that an employer must supply an employee, when the employment commences, with the following in writing:
When any of the abovementioned stipulations change, it must be done in writing and the employee must receive a copy of the amended document.
If the employee does not understand the written document, the employer must ensure that the stipulations are explained to the employee in a language, and in such a manner that the employee can understand it.
The employer must keep the written details of employment for three years after the employment contract has been terminated.
Section 31 requires that every employer must keep a record of at least the following important information:
The abovementioned records must be kept for three years as of the date of the last entry on the relevant records. False entries are prohibited.
Section 33 of the Act requires that each employee must receive the following information on the day he or she is paid:
iii. The number of hours worked on Sundays and public holidays;
The abovementioned written information must be supplied to the employee at the workplace or at a place agreed to by the employer and the employee, and it must be during the employee’s normal working hours, or within 15 minutes before or after working hours.
Where employers do not want to comply with the above basic rules regarding recordkeeping, service conditions and payment information, employees are advised to lodge a complaint of non-compliance in terms of the Basic Conditions of Employment Act at the nearest Department of Labour Office.
Unfortunately, staff members who are responsible for aspects like pay slips, service contracts, and recordkeeping of hours worked, often regard these matters as unimportant administrative tasks without realising that they violate the employees’ rights and they put the employer at risk for action by the Department.
Labour inspectors from the Department of Labour have the power to enter an employer’s site, check records, issue penalties for non-compliance, and provide binding compliance instructions to employers.
If you have any enquiries regarding employment conditions, service contracts, or payments by the employer, please contact Solidarity’s Call Centre at 0861 25 24 23.
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