Labour vibes: ‘Caveat Subscriptor’ is a Latin term which means ‘let the signer beware’ and is a fair warning given South Africa’s all too often draconian labour legislation!
Employers beware that the contract you and your employee sign in relation to their work, performance, gender, colour and race does not contravene South Africa’s draconian labour legislation and protects the employer as well as the employee, who is automatically protected.
The law requires that all employees should have written contracts but it should be noted that employees are automatically protected by the labour legislation even if there is no contract in place. This does not however apply to employers. Where applicable the labour legislation takes precedence over civil legislation – clauses in an employment contract, even when signed and agreed by an employee, cannot supersede the rights provided by the relevant legislation to the employee.
Women in particular are protected in terms of the Employment Equity Act, with employers having to ensure their equality of salaries for the same work, management opportunities and special rights such as maternity leave are protected in the employment contract. Four month’s unpaid maternity leave is a requirement. A woman cannot be dismissed for being pregnant, wanting to fall pregnant or be rejected as a candidate employee for being pregnant.
A properly constructed employment contract, with all the issues protecting employer and employee alike, is a must for employers.
The contract should spell out in detail the performance standard the employee has to meet with targets and consequences in place. Leave, maximum working hours, notice, and overtime should be in terms of the Basic Conditions of Employment Act. Overtime only applies to employees earning less than R192000-00 pa.
Disciplinary procedures should be specified as being per Schedule 8 of the Labour Relations Act.
Dismissing employees can be a nightmare with the threat by an employee of even referring a dispute to the CCMA (Council for Conciliation, Mediation and Arbitration) often being enough to stay a necessary dismissal. Some eighty percent of all dismissal cases at the CCMA are settled by the employer paying a settlement amount rather than getting involved in costly and time consuming litigation.
For an employer an effective employment contract, with a detailed job description and performance targets, helps to ensure that an employee understand exactly what is expected from him. Should litigation ensue the contract can help form the foundation of the case!
Rael Solomon is a labour consultant who writes on the subject via his column ‘labour vibes’
