Employment contracts & policies
South Africa
Requirements
In general, no formalities are prescribed, although the BCEA requires that a minimum list of written particulars of employment be provided. Compliance need not be in the form of a contract of employment; however, written employment agreements are common. Offers of fixed-term employment for employees earning below the BCEA threshold must be in writing and must contain certain prescribed terms (eg, the reason for use of a fixed-term agreement). Contract comes into existence upon valid acceptance of a valid offer of employment. Consensus with regard to the nature of the services rendered and remuneration is required. On commencement of the employment relationship, the employer is required to provide the employee with information such as the calculation and method of payment. The employee cannot contract out of certain rights contained in the BCEA.
Probationary
Probationary periods are permitted. The duration of the probationary period must be reasonable when regard is had to the period that would be required to determine the employee's suitability for the job, and probation periods of 3 to 6 months are fairly common. An employer may not simply terminate an employee's employment at the end of the probationary period, and is instead required to follow a fair performance management process in terms of which an employee is given reasonable guidance, counseling and training before terminating their employment. Thus, a fair process is required whether or not the employee is on probation, but South African courts have held that the reasons for the dismissal for poor performance may be "less compelling" when an employee is on probation.
Policies
An employer must have a sexual harassment policy as well as a policy dealing with protected disclosures (ie. a whistleblowing policy). In regard to the former, a new code has been published in South Africa, called the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace, in an attempt to prevent and manage harassment in the workplace. The new Code has created additional obligations for employers and employees. In particular, the Code:
- Expands on the definition of harassment
- Changes the definition of sexual harassment
- Refers to a new category of harassment, namely racial, social and ethnic origin harassment
- Expressly provides that a perpetrator and a victim can be an employee or 3rd party such as a contractor, supplier or another person who has dealings with the employer and
- Provides for additional sick leave for employees who are harassed.
The Code also sets out certain guidelines in terms of what should be included in employers' policies, procedures and practices related to harassment and what steps employers should take to deal with harassment in the workplace.
In addition, the law provides that all employers must adopt disciplinary rules that establish the standard of conduct required of employees. This generally takes the form of a disciplinary code. Other policies are recommended but not mandatory. Employers are not required to have written health and safety policies unless directed otherwise but are required to adhere to the requirements contained in the Occupational Health and Safety Act. Employers who are responsible parties (ie, data controllers) in terms of POPIA are required to have a PAIA Manual in place which sets out both a summary of the employer’s processing activities and the process for data subjects to follow should they wish to request access to information.
Third-party approval
None required.