By Roy Bregman
Employers are
often at a loss when an employee refuses to sign a contract of
employment. Can the employee be disciplined or dismissed? What other
measures are available to the employer?
One
of the most common mistakes made by employers is to appoint a person
without having agreed on all the terms and conditions of employment.
When the employee is subsequently required to sign a contract of
employment, the employee refuses or fails to sign the contract. This may
be due to some misunderstanding or unhappiness with regard to
particular provisions in the contract.
Our law states
that verbal employment contracts are perfectly binding. But, obviously,
it’s better – for both employer and employee – to enter into a written
contract (to record all the pertinent rights and obligations of both
parties. This avoids vagueness.
What should an employer do if it does not have a written agreement in place?
It
is important to explain to the employee that it is to the benefit of
both parties to have a written contract of employment. The provisions of
the contract should be explained to the employee and the parties must
establish whether there are any areas of disagreement. If there are no
areas of disagreement and the employee still refuses to sign the
contract, it serves no purpose to attempt to compel the employee to
sign.
The Basic Conditions of Employment Act does not
require the parties to enter into a written contract of employment. It
simply requires the employer to supply the employee with written
particulars of employment and it provides that certain items must be
included in such particulars. The employer complies with the provisions
of the Act if it provides the employee with a copy of the draft
contract with a note that the employee has refused to sign it.
A
signed written contract does, however, have definite advantages. It
brings certainty and reduces the likelihood of disputes. There might
also be provisions that are important to the employer, e.g.
confidentiality or a restraint of trade undertaking. The enforcement of
such provisions would be very difficult, if not impossible, without a
signed contract.
If the employee refuses to agree
explicitly with a provision that is reasonable, the employer may embark
on a procedure that could lead to the termination of the employee’s
services due to operational requirements (retrenchment).
Professional advice and assistance are recommended in these circumstances.
Contact Roy Bregman:
Tel: 011 646 0335
Cell: 082 881 2360
Fax: 086 680 9142
Email: roy@bregmans.co.za
Web: www.roylaw.co.za
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