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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).
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:
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:
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.
* This is only basic advice and cannot be relied on solely. The information is correct at the time of being sent to publishing.
Date added: 6 July 2021