The contents of the agreement will depend on a number of factors such as the nature of the employer’s business, the nature of the work performed by the employee, etc.
In addition to typical employment conditions such as working hours, leave, sick leave, and remunerations, the parties should also upfront agree on other specific conditions such as:
· A restraint of trade
· Confidentiality
· Medical testing where so required
· Random and specific drug and alcohol screening
· Random and specific searches
· Random and specific polygraph screening
Duties of the employer in terms of an employment relationship
· Not to perpetrate unfair labour practices and not to dismiss employees unfairly
· To accept the employee in their service
· To provide the employee with work
· To provide safe working conditions
· An employer must take responsible steps to ensure the safety of its employees
· To comply with statutory duties derived from the Basic Conditions of Employment Act, Collective Agreements or sectoral determinations
· To pay the remuneration agreed upon
· Where there is no agreement regarding the time of payment of remuneration, common law prescribes that payment will take place at the end of the period of service
Payment of remuneration
An employer must pay an employee any remuneration that is paid in money:
· In South African currency;
· Daily, weekly, fortnightly, or monthly; and
· In cash, by cheque, or by direct deposit into an account designated by the employee.
Any remuneration paid in cash or by cheque must be given to each employee –
· At the workplace or at a place agreed to by the employee;
· During the employee’s working hours or within 15 minutes of the commencement or conclusion of those hours; and
· In a sealed envelope which becomes the property of the employee.
An employer must pay remuneration no later than seven (7) days after –
· The completion of the period for which the remuneration is payable; or
· The termination of the contract of employment.
Where an employee absconds from the job before completion, they are not entitled to remuneration – not even pro rata payment in respect of the work actually completed. If the non-completion is due to repudiation by the employer, the employee must be rewarded.
Duties of the employee
· To make their personal services available
It is trite that an employee’s principal obligation in the employment relationship is to make their services available to the employer and to perform the services for which they are employed. Failure to do so, except in periods of authorised absence, constitutes a breach of contract. If the breach is serious, the employer may dismiss the employee without notice.
Whether the breach is serious enough to warrant summary dismissal depends on the circumstance and factors such as the nature of the employment, the duration of the absence, actual or potential prejudice to the employer, reasons for absence, and the employee’s state of mind.
· To warrant their competence and reasonable efficiency
The employee must be able to do the work for which they were appointed. If the employee proves to be unsuitable for the work, they are committing a breach of contract. According to the labour courts, they may not be summarily dismissed. They must be provided the opportunity to improve their performance.
· To obey the employer
Disobedience amounts to a breach of contract but will not in all instances justify dismissal. Each instance must be judged on its own merits.
· To be subordinate to the employer
Insubordination presupposes a calculated breach by the employee of the duty to obey the employer’s instructions. Insubordination must be gross, that is, persistent and deliberate in order to justify dismissal. The gravity of insubordination depends on a number of factors, including the action of the employer prior to the alleged insubordination, the willfulness of the employee’s defiance, and the reasonableness of the instruction that was defied.
· To maintain bona fides (act in good faith)
An employee is obligated to act in good faith – if they do not, they are in breach of contract and the employer may dismiss them. The duty to maintain good faith encompasses many facets, such as that an employee does not disclose business information, does not act in a conflict of interest with the employer, does not act in a dishonest manner, and so forth. An employee is obligated to act in the best interest of the employer and not do anything that may harm the employer’s business and the trust relationship between the employer and employee.
· To exercise reasonable care when using the employer’s property
Negligence on the side of the employee whereby damage is caused to the employer’s property constitutes a breach of contract.
· To refrain from misconduct
The employer’s right to discipline employees has its origin in the common law, and more specifically the contract of employment. If an employee commits serious misconduct, the employer has the right to summarily dismiss the employee.
