A contract of employment is a legally enforceable, voluntary and reciprocal agreement which defines terms and conditions of employment in such a way that the employer has authority over the employee and assumes supervision rights. Section 12(1) of the Labour Act (Chapter 28:01) hereinafter referred to as the Act stipulates that every person who is employed by or working for any other person and receiving or entitled to receive any remuneration in respect of such employment or work shall be deemed to be under a contract of employment with that other person, whether such contract is reduced to writing or not.
Once the contract is entered by parties it becomes legally binding and enforceable. It is therefore imperative for parties to have a written contract which clearly specify the basic particulars and terms and conditions of employment to avoid labour disputes. The basic particulars of an employment contract are provided for under section 12(2) of the Act and are the subject of discussion in this article.
- Name of parties
The details of the employer which include the name, the logo and physical place and address of the company must be indicated at the top of the contract. The name of the employee must also be indicated showing that the contract is entered voluntarily between the employee and the employer.
- The job title
The job title must be clear and should resemble the nature of the job. The person specification must match the job description. The job description must cover all the duties and responsibilities which are allocated to the job. However the job description should leave a room for other duties which may arise due to unforeseen circumstances.
- The duration of the contract
A contract must state the duration of employment indicating start and end date in case of fixed term contract unless it is a contract for specific performance which automatically end upon completion of the task. In case of permanent employment, the contract should clearly indicate that the contract is a contract of employment without limit of time. Employers should take note that a contract which does indicate its duration shall be presumed to be an open ended contract. In terms of section 12(3) of the Act, a contract of employment that does not specify its duration or date of termination, other than a contract for casual work or seasonal work or for the performance of some specific service, shall be deemed to be a contract without limit of time.
- Terms of probation
The contract may state the probation period or may confirm the employee to permanent status upon employment. In terms of section 12(5) of the Act, a contract of employment may provide in writing for a single, non-renewable probationary period of not more than:
(a) one day in the case of casual work or seasonal work; or
(b) three months in any other case;
The contract must also clarify that notice of termination of the contract to be given by either party must be one week in the case of casual or seasonal work or two weeks in any other case.
Remuneration should be clearly indicated on the contract including rights to social security, pensions, gratuities or other retirement benefits. Issues like medical aid and funeral policy have become common social security requirements in most contracts and must not be left out where possible. The method of calculating salary and interval of payment must be included under remuneration. Section 12(3) of the Act provides that wages shall be paid at regular intervals on working days at or near the workplace.
- Hours of work
Hours of work must be clearly specified in the contract and must be guided by the provisions of section 14C of the Act which deals with weekly rest and remuneration for work during public holidays. The section provides that every employee shall be entitled to not less than twenty-four continuous hours of rest each week, either on the same day of every week or on a day agreed by the employer and employee.
- The terms of any employment code
The terms of the code of conduct of the organization or sector must be included in the contract and where possible the code of conduct must be availed to the employees before they sign the contracts. In terms of section 5 of Statutory Instrument 379 of 1990 Labour Relations (Employment Codes of Conduct) Regulations, 1990, the code of conduct must be accessible in vernacular languages.
- Benefits during sickness and pregnancy
The provision of maternity leave as read by section 18 of the Act must be adhered to. The issue of sick leave must also be guided by provisions of section 14A of the Act.
- Particulars of any bonus or incentive production scheme
Where there is provision of bonus it must be indicated in the contract and the formulae for calculating the bonus should be clearly explained especially when it is production based bonus.
- Particulars of any other benefits
Benefits differ with the nature of the job and the organization or sector. Senior executives are usually entitled to car benefit, housing facilities and school fees for their children. These benefits are subjected to tax as they constitute earnings of the concerned employees. In other circumstances junior employees’ benefits may be provided in collective bargaining agreements for the concerned sectors.
While the above elements are provided for in the Act, it is crucial to add other clauses which comes with the provision of collective bargaining agreement of the undertaking. In this era of corona virus it is also essential to include a clause of force majeure to clarify the position of the employment contract when parties fail to fulfill their obligations due to supervening impossibility of performance. Force majeure, is a common clause in contracts which essentially frees both parties from liability or obligation when circumstances beyond control of the parties, often described as act of God, prevents one or both parties from fulfilling their obligations under the contract. However the clause should only exempt the parties from fulfilling their obligations during the actual time of performance impossibility due to the unforeseen circumstances. https://masvingomirror.com
Opinions expressed herein are solely those of the author and must not be taken as legal advice. Simbarashe Gobvu is an experienced Labour Practitioner and an Independent Arbitrator who write in his own capacity. He can be contacted at [email protected]/ Phone 0773215904 or 0713008767