A follower on the Scorpion Legal Protection Facebook page recently asked us “If the company keeps on postponing giving out contracts, how will I know or prove that the company owes me leave days?” Scorpion explains what you can do and how our labour laws protect you.
Some employers may think that if they don’t give their workers employment contracts, they can get away with taking advantage of them because they don’t have the same rights. Azikhiphi! This is false! The fact that you do not have a formal employment contract does not mean that you have no protection - you are still protected by the Basic Conditions of Employment Act (BCEA), and the Labour Relations Act (LRA).
Must the employer give formal employment contracts?
No. There is no specific requirement in our labour law that says an employee must be given a formal employment contract that regulates all aspects of the employment relationship. However, employers do have to provide employees with their particulars of employment in writing. If your employer does not give you this, as an employee you are entitled to request that the employer complies with the BCEA.
Section 29 says that when an employee starts work with an employer, the employer must give the employee 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, this must be clearly said)
- 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 that the employee is entitled to (for example, cellphone or travel allowance)
- Any payment in kind that the employee is entitled to and the value of the payment in kind (for example, if the employer provides accommodation)
- How frequently the employee will be paid
- Any deductions to be made from the employee’s pay
- 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 all the documents that form part of the contract of employment (for example, this could include the employer’s code of conduct), indicating a place that is reasonably accessible to the employee where a copy of the documents may be obtained.
In answer to the Facebook follower’s question, if the employer is complying with the BCEA, he should receive all of the above information – including the amount of leave owed to him – in writing. It’s clear though that the employer has not done this, and is therefore not complying.
If the employer wants to change any of the above, it must be done in writing and the employee must receive a copy of the amended document.
Section 31 also says that every employer must keep a record of certain important information about each employee for 3 years, including their name and job title, the period they worked for and what was paid to them.
Section 33 of the Act says that each employee must receive the following information on the day he or she is paid:
- The employer’s name and address
- The employee’s name and job title
- The period for which the payment is made
- The employee’s remuneration
- The amount and purpose of any deductions from the remuneration
- The amount after deductions that is paid to the employee
- If relevant to the calculation of the remuneration:
a. Details of overtime worked by the employee
b. The number of normal hours and overtime hours worked for the remuneration period
Lodge a complaint of non-compliance with the Labour Department
When employers do not comply with labour legislation, even after the employee has requested that they do, Scorpion advises that they lodge a complaint of non-compliance according to the terms of the BCEA at their nearest Department of Labour Office. The Department will then evaluate the matter and can send labour inspectors to inspect the employer, check records, issue penalties for not complying with the law and give out binding compliance instructions.
You may also be interested in:
Final warning without previous warnings?
If I’m fired, what must my employer pay me?
Employer refuses to pay out leave
If you have a query, follow Scorpion Legal Protection on Facebook and ask your question during our next Live Q&A (every first Thursday of the month).
* This is only basic advice and cannot be relied on solely. The information is correct at the time of being sent to publishing.