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Home Recruiting & AppointingHow to contract an employee Checklist Contract of Employment

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CONTRACT OF EMPLOYMENT CHECKLIST
1. Is this a permanent contract or a fixed-term contract?
2. Full-time or part-time employee?
(Make sure you are using the correct contract form for the intended employment relationship)
3. For part-time contracts for people who earn the equivalent to or below the earnings threshold set out in the Basic Conditions of Employment Act 75 of 1997, have you checked to see that the contract complies with the requirements as set out in section 198C of the Labour Relations Act 66 of 1995?
4. Have ALL the spaces in the contract been filled in?
5. Have the sections that are not applicable been deleted?
6. For fixed-term contracts for people who earn the equivalent to or below the earnings threshold set out in the Basic Conditions of Employment Act 75 of 1997, have you checked to see that the contract complies with the requirements as set out in section 198B of the Labour Relations Act 66 of 1995?
7. If a fixed-term contract, is the period three months or less?
8. If it is a fixed-term contract for more than three months, or for a project with an unspecified period, have you specified the reason for the fixed-term in the contract?
9. Has the employee signed the contract?
10. Has the employee’s signature been witnessed?
11. Has the contract been signed by an authorised person on behalf of the employer?
12. Has the employer’s signature been witnessed?
13. Have both parties and the witnesses initialled any alterations, including any deletions and each place where a blank space has been completed?
14. Has the employee been given a copy of the signed contact?
15. If applicable, has the employee been given copies of the disciplinary policy / procedure / code / grievance procedure?
16. Did the employee (applicable to those earning above the BCEA threshold) agree to an Inquiry by Arbitrator process, as defined in section 188 of the LRA, in the event that the employer may wish to utilise this process to conduct an inquiry into his/her conduct or capacity?
17. Has the employee been given copies or access to any other applicable policies?
18. Has the employee signed an acknowledgement of receipt for the above policies?
19. Has the employer filed the original contract in a safe place?
20. Has the employer arranged an induction process for the employee?

21. Remember to give the employee appropriate instruction, guidance, counselling, training, and evaluation during the probation period, if a probationary period has been included in the contract.

22. Remember to do a final evaluation before the end of the probation period, and decide whether or not you want to confirm the employee’s appointment.

23. If the employer wants to terminate employment or extend the probation period, first give the employee an opportunity to make representations, with the assistance of a fellow employee or a trade union representative (shop steward). Assistance by a trade union official only applies if a trade union has been granted organizational rights to have elected shop stewards for this purpose. A trade union representative who does not satisfy this criterion may only assist an employee if s/he is a fellow employee.

See Table – Employment Contracts 

See How to guide – Probation 

 

Checklist Contract of Employment

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Home Ending EmploymentWhere the employee’s behaviour requires addressing (misconduct) Chairperson’s Checklist for a Formal Disciplinary Hearing

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Chairperson’s Checklist for a Formal Disciplinary Hearing

 1. Before the hearing

1.1 Check: are you sufficiently objective to chair the hearing?

1.2 Has the employee been given sufficient notice of the hearing?

1.3 Does the notice clearly describe the alleged misconduct?

1.4 Is the proposed date, time and venue suitable for all parties, including witnesses?

1.5 Is an interpreter / fellow employee conversant in the languages available, if required?

1.6 Is the employee a shop steward, and if so, has the trade union been consulted?

 

2. During the hearing

2.1 Open the hearing and introduce yourself (if necessary).

2.2 Check that the employee is present.

2.3 Request parties to sign an attendance register. Introduce the parties if necessary.

2.4 Advise parties if you are recording proceedings. (If employee requests permission to also record proceedings, this would normally be granted.)

2.5 If employee is not present, determine why and whether a postponement is required or whether the hearing will proceed in the employee’s absence.

2.6 If employee is present:

2.6.1 Check if employee has or requires a representative.

2.6.2 Check whether the employee requires an interpreter / fellow employee conversant in the required languages.

2.6.3 Check that the employee received the notice of the hearing.

2.6.4 Check that the employee understands the allegations.

2.6.5 Check that the employee had sufficient time to prepare.

2.7 Briefly outline the procedure to be followed in the first stage of the hearing, as follows:

2.7.1 Read the allegations and ask the employee to state separately whether or not s/he has committed the misconduct as alleged.

2.7.2 If the employee acknowledges having committed the misconduct, ask for background from both parties and then move to point 2.11.

2.7.3 If the employee denies having committed the misconduct, ask for opening statements from both parties.

2.7.4 Company leads evidence of its witnesses.

2.7.5 Cross-examination of each witness by the employee / representative.

2.7.6 Re-examination of the witness by the company.

2.7.7 Employee leads evidence.

2.7.8 Cross-examination by employer representative of employee’s witnesses (if any).

2.7.9 Re-examination of employer’s witnesses by employer’s representative.

2.7.10 Delivery of closing argument.

2.8 Follow procedure as outlined, then adjourn in order to consider the evidence and make a finding. Determine how long the adjournment should be, based on complexity of issues, and advise parties.

2.9 Make a finding whether or not to uphold one or more of the allegations (separate finding on each separate allegation). Parties to be advised of finding on resumption of proceedings.

2.10 If none of the allegations have been proved by the employer, the hearing ends.

2.11 If one or more allegations have been proved,  set out the procedure to be followed in the second stage of the hearing:

2.11.1 Evidence in mitigation (lessen) of sanction (e.g. personal circumstances, clean disciplinary record, long service, provocation, etc.).

2.11.2 Evidence in aggravation of sanction (e.g. cost to company, loss of trust (especially in cases involving dishonesty), previous warnings, etc.).

2.12 Adjourn to consider the sanction. Determine how long the adjournment should be, based on complexity, and advise parties.

2.13 Decide on the sanction / recommendation of sanction (depending on your mandate from the employer).

2.14 If the sanction is dismissal, determine whether summary dismissal or on notice.

2.15 If a recommendation is required, advise the employer of the recommendation and allow the employer to take a final decision on this.

2.16 Where the employer wishes to impose a more serious sanction than that recommended by the chairperson of the enquiry, the employer should notify the employee of this.

2.17 Advise the employee in writing of the outcome of the hearing. Note: the law does not require that an appeal process should follow, but if the employer provides for a right of appeal in the employer’s disciplinary policy / procedure, then this should be communicated to the employee.

2.18 If the employee is dismissed, ensure that s/he is advised in writing of his/her right to refer an unfair dismissal dispute to the CCMA / bargaining council within thirty (30) days of the date of dismissal (or 30 days of the date of outcome of an appeal, if any).

 

3. After the hearing

3.1 It is advisable to ensure preparation of minutes of the hearing as soon as possible (preferably typed, not handwritten). Minutes should be a summary of the evidence and argument, findings, mitigation and aggravation, and sanction. They do not need to be recorded word for word.

3.2 Check minutes for accuracy.

3.3 Where minutes are available ensure that a copy of the minutes is given to the employee. The employee should be asked to sign a copy of the minutes to confirm receipt and accuracy (but, cannot be forced to do so). Where s/he refuses to sign for receipt of the minutes, a witness may sign to confirm that the minutes were given to the employee.

3.4 Ensure that all documentation relating to the enquiry is kept safely, in the event of the outcome of the enquiry being challenged. (This would include the notice of the enquiry, documentary evidence, chairperson’s notes, minutes of the enquiry, outcome of the enquiry, and appeal documentation if any).

 

See also:

Notice of a Disciplinary Hearing

Notice of a disciplinary hearing

Termination of services - Conduct

Guidelines on Termination of Services - Conduct

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Chairperson’s Checklist for a Formal Disciplinary Hearing

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Home Managing EmployeesWhere the employer needs to reduce, move or change job requirements for operational, financial or technological reasons (retrenchment) How to consult and end employment due to operational requirements

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How to consult and end the employment relationship in a fair manner based on operational requirements (retrenchment)

1. CONSIDER available external support to minimise the need for retrenchment.

 

  1. Temporary Employer/Employee Relief Scheme (TERS) is a 12-month solution which serves to benefit employers and their employees facing business distress.
  2. Under the TERS, employees affected by short-time / layoffs / possible retrenchment may be placed on SETA-funded training for up-skilling / re-skilling for a maximum of 12 months and during this period their wage cost is covered by the UIF and not by the employer.
  3.  All requests to participate in the TERS must be made via the CCMA, on the TERS Application Form and submitted to the CCMA. TERSapplication@ccma.org.za
  4. Productivity South Africa (Productivity SA) offers various services, including the Business Turnaround and Recovery programme, designed to effectively solve business challenges and assist distressed organisations, to take practical steps to successfully revive and restore themselves to functional, profitable enterprises. For more information, visit: https://productivitysa.co.za/turnaroundsolutions

 

2. CHECK who should be engaged in the consultation process.

 

  1. Is there a collective agreement that applies? If so, an employer must check who should be consulted in terms of the agreement.
  2. If not, is there a workplace forum in place at the workplace? If there is, an employer must consult with the workplace forum as well as any registered trade union whose members are likely to be affected by the proposed retrenchments.
  3. If there is no workplace forum, is there a registered trade union whose members are likely to be affected? If there is, an employer must consult with the trade union.
  4. If there is no trade union at the workplace, an employer must consult with the employees likely to be affected or any representatives they may nominate for this purpose.

 

3. ISSUE the invitation to consult letter:

 

  1. Send the letter of invitation to consult, as per section 189(3) of the Labour Relations Act 66 of 1995 (LRA), to the appropriate party as determined above.

    Invitation to consult: Trade union


    Invitation to consult: Individual

  2. Ensure that the letter adequately explains the reasons for the proposed retrenchments.
  3. Ensure that the following issues are covered in the letter:
    1. The proposed number of employees likely to be retrenched in each job category;
    2. The alternatives considered before proposing retrenchment and the reasons for rejecting these;
    3. The proposed timing of the retrenchments;
    4. The proposed selection criteria;
    5. The proposed severance pay (the Basic Conditions of Employment Act 75 of 1997 prescribes a minimum of one week’s pay per completed year of continuous service. This offer could possibly be enhanced during the consultation process);
    6. The proposed assistance to be offered to the retrenched employees;
    7. The possibility of future re-employment;
    8. The number of employees employed (prior to retrenchments); and
    9. The number of employees retrenched in the last 12 months.
  4. Set a date for the first consultation meeting (as a guideline, a reasonable notice period would be a minimum of 2 days, up to a week).

 

4. CONVENE the first consultation meeting:

 

  1. Allow employees / representatives to make proposals / representations on any of the issues set out in the letter, as well as any other matter relating to the proposed retrenchment/s.
  2. Listen to and note the proposals. Do not respond immediately.
  3. Ensure that employees / representatives have a full opportunity to air their views.
  4. Set a date for a follow-up meeting, at which you will respond to the proposals.
  5. After the first meeting, consider all the proposals/representations that employees or their representatives have made.

 

5. HOLD the second consultation meeting:

 

  1. Respond to the employees’ proposals / representations.
  2. If proposals have been made in writing, the employer must respond in writing.
  3. Try to meet the employee(s)’ proposals as far as practically possible as this will help to demonstrate the employer’s willingness to engage in a consensus-seeking process. If possible, offer other options to try to reach agreement (e.g. additional severance pay, no requirement to work out notice period, )
  4. Where the employer does not agree with any of the proposals/representations that have been made, the employer must give reasons for disagreeing.
  5. Try to reach agreement on the details of the retrenchments (who will be retrenched, timing, severance pay, etc.)
  6. If it is necessary to hold a further meeting, set a date for the final consultation meeting.
  7. Conduct the final consultation meeting in the same way as the first consultation. Try to reach agreement on all aspects of the retrenchment.

 

6. FINALISE the retrenchment:

 

  1. If agreement has been reached, draft a settlement agreement to be signed by the trade union (if any) or by the individual employees. The agreement must reflect that it is in full and final settlement of all disputes relating to the employment of the employee(s) and the termination thereof.

    Retrenchment Agreement

  2. If no agreement is reached, issue notice of termination letters to the employees to be retrenched.
  3. Check that the appropriate notice period has been given to each employee in terms of the contract of employment. If there is no provision in the contract of employment, use the periods set out in the Basic Conditions of Employment Act:
    1. One week if the employee has been employed for six months or less;
    2. Two weeks if employed for more than six months, but not more than one year;
    3. Four weeks if employed for more than one year or if the employee is a farm worker or a domestic worker who has been employed for more than six months.
  4. Pay each employee a severance package of no less than one week’s remuneration per completed year of continuous service, together with and in addition to payment owing in respect of accrued leave, the final wage / salary payment, and any other amount owing by law or in terms of the employment contract.

    What is severance pay

  5. Provide the employee with a certificate of service and a letter of reference.
  6. Furnish the employee with an unemployment insurance UI-19 form recording the reason for termination as “retrenchment”.
  7. If applicable, arrange for the employee to withdraw from the company provident fund and for the payment of all monies due to the employee.
  8. Ensure that these documents are processed and completed as expeditiously as possible.

    See template: Unemployment Insurance Form UI-19


    Certificate of service

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How to consult and end employment due to operational requirements

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Home Managing EmployeesWhat is the difference between managing conduct and capacity at the workplace The difference between misconduct and poor performance (Incapacity)

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Checklist: The Difference between Misconduct and Poor Performance (Incapacity)

Misconduct and poor performance enquiries are different. The checklist below is a guide and will assist the employer to determine whether the conduct in question is characterised as misconduct or poor performance:

MISCONDUCT POOR PERFORMANCE
Blame is involved – intentional or negligent

The employee is able but unwilling to meet the required standard of conduct

 

 No blame or fault is involved

The employee is unable to meet the required standard of performance
Breach of a workplace rule

 

 Failure to meet  a workplace standard
Test to determine misconduct:

  • Did the employee break a rule or standard regulating conduct in the workplace?
  • Was the rule valid or reasonable?
  • Was the employee aware of the rule?
  • Was the rule consistently applied?
  • Would dismissal be appropriate?
 Test to determine incapacity:

  • Did the employee fail to meet a performance standard?
  • Was the standard reasonable / achievable?
  • Was the employee aware of the required standard?
  • Was the employee given a fair opportunity to meet the standard?
  • Would dismissal be the appropriate sanction for not meeting the required standard?
  • What alternatives to dismissal have been considered?
Steps that can be taken:

Disciplinary steps are taken, including informal advice, correction, warnings or dismissal (following a disciplinary hearing) depending on the seriousness of the transgression.

 Steps that can be taken:

Training, instruction, guidance, evaluation, counselling and ultimately dismissal (following an incapacity hearing).

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The difference between misconduct and poor performance (Incapacity)

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Home Recruiting & AppointingWhat are an employer’s statutory obligations upon commencement of employment Compulsory employment details

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What employment details must an employer communicate to an employee when they start working?

 

The following details must be provided to the employee in writing in terms of the Basic Conditions of Employment Act 75 of 1997 (BCEA).  This is in the interests of both employers and employees. This is a legal requirement in terms of Section 29 of the BCEA.

 

The written particulars can be in a form of a letter of employment or a formal contract of employment. It is advisable for the document to be signed by both parties to avoid future misunderstandings and disputes.  Section 29 of the BCEA states as follows:

  • The full name and address of the employer;
  • A brief description of the duties for which the employee is employed;
  • The date on which employment began;
  • The employee’s ordinary hours of work and days of work;
  • The employee’s wage or the rate and method of calculating wages;
  • The rate of pay for overtime work, Sunday work and Public Holidays;
  • Any other cash payments that the employee is entitled to and the value of the payment in kind;
  • any deductions to be made from the employee’s remuneration;
  • When wages will be paid, and how they will be paid – cash, bank account, etc.
  • How much leave the employee is entitled to;
  • The period of notice required should employment be terminated or if employment is for a specified period, the date when employment is to terminate;
  • A list of any other documents that form part of the contract of employment, indicating a place that is reasonably accessible to the employee where a copy of each may be obtained.

 

Note, if any of these details change, the changes must also be given to the employee in writing.

 

If the employee is not able to understand the written particulars, the employer must ensure that they are explained to the worker in a language and manner in which s/he understands.

Guideline for permanent contract of employment

Guideline for fixed-term contract of employment

The above-mentioned provisions do not apply to an employee who works less than 24 hours a month for an employer or to an employer who employs fewer than five employees.

 

Why does the BCEA state that an employer must supply a worker with these written particulars when starting to work?

 

Written particulars of employment serve to provide certainty to both employers and employees as to the conditions that govern the employment relationship.  This reduces the possibility for confusion and disputes that may arise when there is no written record of what has been agreed to.

 

An inspector from the Department of Labour may inspect the written particulars of employment. An employer must keep such records for a period of three years after the termination of employment. A labour inspector has the power, without warrant or notice, to enter any workplace (not including a private household) at any reasonable time in order to monitor and enforce compliance with the BCEA. The inspector may question a person on any employment law matter and require disclosure of information, as well as inspect certain documents or records.

 

If there is an agreement to change the written particulars, the law further requires that the document must be amended and the employee must be given a copy.

 

If an employee is not able to understand the written particulars, the employer must ensure that it is explained in a language and a manner that the employee understands.

Written particulars of employment

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