The necessity of employment contracts

16 Nov 2023

Introduction

If you’ve ever wondered whether you really need a fancy written and signed contract to seal the deal when it comes to getting a job in South Africa, you’re not alone. We’re here to break it down for you and make it simple. In this article, we’ll explore the world of employment contracts and what happens if things go south without one.

Why a written employment contract matters

So, here’s the deal: while a written contract isn’t a must-have for your job to be legit, it’s a big deal according to the law. This piece of paper is like the cornerstone of your working relationship with your boss. Without it, you’re sort of in limbo because the law’s job rules don’t apply to you.

Different kinds of contracts

Now, let’s talk about the types of contracts you might come across:

Permanent contracts: Think of these as the real deal. They’re the ones that last for an indefinite period. If you have one, you’ve got job stability, a steady income, and all the employee benefits. But it also means your boss has to follow labour laws and give you a heads-up if they want to say goodbye.

Fixed-term contracts: These contracts have a time limit or are for specific projects. They’re like temp gigs. Employers like them because they’re flexible, but they need to follow labour laws too and let you know what happens when the contract ends.

Independent contractor contracts: These are a different beast altogether. They’re for folks or companies providing specific services, but they’re not really employees. Companies use these to avoid some of the rules that come with regular employees, like taxes and certain worker rights. But be careful – you can’t just call someone an independent contractor to dodge the rules. The law and courts have a say in that.

The legal breakdown

In South Africa, the Labor Relations Act and the Basic Conditions of Employment Act are the big players when it comes to job laws. They don’t demand a written contract, but they do want certain details in writing, like your job terms, pay, and benefits. The Basic Conditions of Employment Act also says you should get your contract on day one of your job.

If your employer doesn’t follow these rules, you could end up in a dispute, like in the “Georgieva – Deyanova / Craighall Spar” case. The court said employers need to share important job info with their employees, and not doing so can cause trouble.

When disputes strike

Now, let’s say you’re in a jam, and there’s no contract in sight. Don’t worry; there’s help. You can reach out to the CCMA or a bargaining council. They’ll try to smooth things out through conciliation, which is like a chat to find common ground. If that doesn’t work, things can escalate to arbitration or the Labour Court.

In the “National Union of Metalworkers of South Africa and Others v Fry’s Metals (Pty) Ltd” case, it was clear that a contract isn’t the only proof of a working relationship. Even without a contract, employees got their rights protected because the law said they should.

In a nutshell

To sum it all up, you don’t absolutely need a written contract to work in South Africa, but your employer should give you one by law. It’s the foundation of your working relationship, and if things go south without a contract, you can seek help from the CCMA or a bargaining council. They’ll try to sort things out through talking, and if that doesn’t work, you might end up in arbitration or the Labor Court. So, whether you have a contract or not, the law’s got your back.

For any assistance, contact an attorney at SchoemanLaw.

See also:

• Recent trends in employment litigation in South Africa
• Good news! The quest for employment continues.
• “Objection to con/arb!”, “Overruled!”
• Are you an employee or an independent contractor? What is the difference?

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)