By Barend Smit
I am working without an employment contract. Is it legal?
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:
- The full name and address of the employer;
- The name and occupation of the employee, or a brief description of the work for which the employee is employed;
- The place of work (where the employee is required to work at various places, a clear indication thereof);
- The date on which the employment commences;
- The employee’s ordinary hours of work and days of work;
- The employee’s wage or the hourly rate and method of calculating wages;
- The rate of pay for overtime work;
- Any other cash payment, which the employee is entitled to;
- Any payment in kind that the employee is entitled to and the value of the payment in kind;
- How frequently remuneration will be paid;
- Any deductions to be made from the employee’s remuneration;
- The leave to which the employee is entitled;
- The period of notice required to terminate employment, or the date when employment is to terminate;
- A description of any bargaining council or sectoral determination which covers the employer’s business;
- Any period of employment with a previous employer that counts towards the employee’s period of employment;
- A list of documents which form part of the contract of employment, indicating a place that is reasonably accessible to the employee where a copy of the documents may be obtained.
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:
- a) The employee’s name and job title;
- The period that each employee has worked;
- The remuneration paid to each employee;
- The date of birth of any employee under 18 years of age;
- Any other information prescribed by legislation or the Minister of Labour.
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:
- a) The employer’s name and address;
- b) The employee’s name and job title;
- c) The period for which the payment is made;
- d) The employee’s remuneration;
- e) The amount and purpose of any deductions from the remuneration;
- f) The real amount after deductions paid to the employee;
- g) If relevant to the calculation of the remuneration:
- Details of overtime worked by the employee;
- The number of normal hours and overtime hours worked for the remuneration period;
iii. The number of hours worked on Sundays and public holidays;
- The total hours worked.
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.