As consultants, our work is about answering questions and finding suitable action plans, in the face of the various challenges that impact our members. However, we do find that there are some challenges that business owners bring upon themselves; especially with regards to Employment Contracts.
To give you an idea, a member has a nail technician that just is not molding well with the team. The nail technician is frequently late and does not really have a nice personality. The member wants to know if he can tell the employee to go? The member says that he has not given the Employee a contract, so the Employee is not really employed yet!
There are so many red flags in this question; firstly, lateness and ‘personality’ are not suitable reasons for dismissal – Unless you have proven history of progressive disciplinary action and have received a suggested sanction of dismissal from a chairperson after holding a disciplinary hearing (Contact your EOHCB representative for more information about progressive disciplinary processes); secondly, the presences of a Contract of Employment does not constitute whether an Employment Relationship exists or not.
The contract of employment has 3 major areas of significance:
1. Formal establishment of the Employment Relationship
Yes, this establishes the nature of the employment relationship and the terms and conditions thereof, however, there is space within Labour Law that allows this relationship to be established, despite the absence of a formal contract.
For example, if an Employee is illiterate, and is dismissed, the only proof needed to prove the existence of the employment relationship would be that the Employee did indeed work and that they received payment for said work. This then establishes that the Employer is duty-bound to validate why this relationship has since been terminated. Failure to do this will result in the Employer losing this dispute
2. Establish the Employee’s Responsibilities
Formalising the Employee’s responsibilities allows for the Employer to establish the roles and related tasks relative to that position. This then allows for two things, the delegation of vital areas of risk within the business, as well as the Employee’s willingness and capacity to do so.
The nature of any employment relationship is of a mutually beneficial nature, and a contract of employment ensures that these mutually beneficial factors are clarified, not only in monetary means but also regarding the skills, goodwill, and tasks that the Employee commits to, as well as the consequences, should the Employee not adhere to these factors.
In summary, the Employee must be aware of their responsibilities, and the repercussions of not meeting them.
3. The Contract Protects the Employer
One of the biggest shortfalls of failing to implement a contract of employment is the loss of protection that it offers the Employer.
Many important factors, such as intellectual property, security, and confidentiality are impacted by the presence of an Employee, as this individual will frequently be subject to the business’s information as well as access to the business’s property and assets.
It is at this stage, when we empower our staff to work as best as possible, that we also need to remind ourselves that businesses have the right to be protected and have their interests prioritised.
With these factors in mind, the EOHCB team must always insist on the presence of a contract of employment, and in the event that you do not have one, we will assist you in developing a custom contract of employment that will prevent as many risks as possible, while also adding value to your business.
The Main Collective Agreement of the Hairdressing, Cosmetology, Skincare, and Beauty Industry in clause 7.5.1 states that an Employer shall furnish each Employee employed with a letter of appointment and Contract of Employment, which shall include the following:
7.5.1.1 the Employee’s full names, address, ID number, and occupation of the Employee;
7.5.1.2 date of commencement of service;
7.5.1.3 the title of the Employee’s occupation;
7.5.1.4 the remuneration or basic salary and/or commission and/or wages for that occupation;
7.5.1.5 the days and hours of work;
7.5.1.6 the place of work, and an indication whether the Employee may render services at other Establishments of the same Employer, if applicable;
7.5.1.7 the salary rate and method of calculation as well as frequency of payment;
7.5.1.8 the rate of pay for overtime worked;
7.5.1.9 details of deductions to be made from the Employee’s salary;
7.5.1.10 all leave entitlements; and
7.5.1.11 the period of notice required.
An Employer, operating under the scope of the National Bargaining Council for Hairdressing, Cosmetology, Skincare, and Beauty Industry who fails to adhere to clause 7.5.1 and sub-clauses is in contravention of the Main Collective Agreement and should seek immediate assistance through the EOHCB to rectify.
The same applies to Employers operating outside the scope of the National Bargaining Council for Hairdressing, Cosmetology, Skincare, and Beauty Industry, section 29 of the Basic Conditions of Employment Act provides for certainly written particulars of employment to be provided as a minimum, and every Employer is legally obligated to provide all Employees with these minimum particulars in writing not later than that the first day of employment.