If you are a seasoned manager / HR practitioner and comfortable that your employment relations are fair and comply with labour law provisions, good for you! But - you may not be as secure as you think. Recent case law developments have made it clear that employers need to be aware of many more employment-related risks which fall outside of the labour law arena.
The employment contract is a hybrid between labour law and contractual / common law. This means that the contents
can be enforced in terms of labour law; or in terms of contractual / common law; or both. The route that is followed (e.g. unfair dismissal or unlawful breach of contract), leads to vastly different outcomes. You may win a case at the CCMA based on fairness, but still have to pay damages to a disgruntled employee in terms of a civil suit for breach of contract or unlawful termination.
In short, an employer has to ensure that employment contracts and policies are drafted with the necessary legal expertise to protect against both types of claims. Using outdated templates to compile employment contracts will not be sufficient.
A properly drafted application form is a necessity. Using only CV’s to appoint applicants for employment is a dangerous practice. Even if using a recruitment agency, the employer has certain obligations and responsibilities. Important permissions and information need to be obtained from the applicant prior to making an offer of employment. We have seen many an employer trying to back paddle out of legal obligations due to certain oversights which could have been prevented.
A few examples:
- Anything “granted” to employees in terms of their employment contract, or (voluminous) policies and practices, may be enforced against the employer as a contractual entitlement.
- A contract of employment can become enforceable even if all the terms had not been agreed upon and even if it had not been signed by both parties. As soon as the essential elements of a contract have been agreed (even verbally), it is a valid contract.
- Such essential elements could be as little as an agreement to work for someone for payment, and a starting date.
- Negotiation / discussions around remuneration and other benefits do not invalidate the contract if no agreement is reached. It could become an unfair labour practice dispute relating to benefits.
- A proper disclaimer in the employer’s application form can pre-empt this.
- A bona fide applicant for employment, dealing with a representative of the employer in recruitment negotiations, can accept that such a person has the authority to offer and decide on employment, unless clearly informed otherwise, and a legal obligation will exist despite HQ not approving the appointment.
Griessel & Associates Consulting has the legal expertise and practical experience to assist employers in this regard. A template for an Application Form can also be purchased from us.
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