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There have been many legal developments in the employment arena lately that employers must take note of to ensure that they can defend challenges at the CCMA or Labour Court. Here are some tips for pre-emptively dealing with some of the new issues as well as some recurring ones.

Contracts of employment

A contract of employment need not be in writing to be enforceable. The fact that a prospective employee has not signed his/her contract, does not mean that an employment relationship does not exist.

A contract of employment can also come into being 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 upon (even verbally), a valid contract can exist.

If an employer tenders an unconditional letter of appointment to a prospective employee and the employee accepts this, the prospective employee shall be regarded as having been employed by the employer.

The withdrawal of an unconditional letter of appointment which had been accepted by the applicant (even prior to the effective date of appointment) will constitute a dismissal for the purposes of the Labour Relations Act.

An employer should ensure that all of the terms and conditions of employment have been expressly agreed upon by both parties, before confirming the appointment and/or allowing a prospective employee to commence work.

Fixed term contracts (for those earning less than the earnings threshold, currently R205,433 p/a) must now be in writing and must reflect the reason for the employment being fixed as opposed to being permanent, and the employee’s agreement thereto.

The reason must be a permissible / justifiable one in terms of the Labour Relations Amendment Act – otherwise the employee can be deemed to be permanent if employed for longer than 3 months, regardless of what the contract says. Once such an employee is deemed to be permanent, letting the contract expire and not offering continued employment, could constitute dismissal.

Any extension of a fixed term contract must also be in writing and should be a new contract altogether, as opposed to just an extension letter.

If the reason for the fixed term contract is linked to a specific project of limited duration, employers should define the nature and term of the project very carefully, especially where there are sub-components to a project. It should be clear if the contract will terminate on the completion of the sub-component or of the whole project. This is important, since employees who are employed on a specific project for longer than 24 months, will be entitled to severance pay unless the employer arranges an alternative job for them on the same or similar terms, or offers them permanent employment.

Temporary employees (even if there is a valid reason for their fixed term employment) may after 3 months’ employment not be treated less favourably than comparable permanent employees of the employer, including remuneration and benefits.

Recruitment

It is strongly recommended that employers use a formal application form to be completed by short-listed applicants for employment. Specific information relevant to the job can be obtained; the applicant can be asked specific questions to respond to (as opposed to simply leaving out important facts from their CV); and written permission can be obtained from the applicant to allow reference- and other pre-employment checks. This will become essential once the Protection of Personal Information Act (POPI) becomes law.

Employers should implement a policy of conducting exit interviews – not only as a good human resources practice, but also to ask the employee if references and other personal information may be given to prospective employers and if so, what may be disclosed. This permission should be obtained in writing to protect the employer.

Policies and practices

A retirement policy is becoming a necessity for all employers to have. It does not have to be a complicated one, but it should stipulate the retirement age and also what happens once that age is reached, especially if there might be the option of further employment after retirement. The new relationship after retirement age should be clearly determined and a new agreement entered into. The policy should be consistently applied.

Social media and internet policies are also becoming more and more important – especially if employees are permitted to have access to these sites for business purposes. Limitations should be set and the rules made clear about contents, purpose and well as time spent on social media or internet sites. Employees should be aware of, and consent to, their digital records being monitored by the employer. Even if employees use their own devices, there should be rules about time spent on non-work related use (or abuse) of the internet or social media.

Maternity leave – In keeping with the Constitution and anti-discrimination laws, the Labour Court has recently pronounced that maternity leave and –benefits should not be limited to female employees who have given birth. (See Mia v State Information Technology Agency (Pty) Ltd.)

This could constitute unfair discrimination on the basis of marital status, sexual orientation, gender, etc.

Also, the court said that the right to maternity leave is not linked only to the welfare and health of the child’s mother, but should take into consideration the best interests of the child.

The court said that employment policies should recognise the status of parties to a civil union (e.g. same sex marriages). Surrogacy and adoption agreements should also be recognised. There may also be situations where a mother died in childbirth and the father has to assume the role of primary care giver.

This may necessitate changes to the Basic Conditions of Employment Act as well as UIF legislation, which at this stage only provides maternity benefits to female employees.

For assistance with any of these issues, contact Griessel Consulting.

Judith Griessel

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www.griesselconsulting.co.za

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