The quote by Alexander Pope “To err is human” and the Setswana saying “motho o tsalwa le phoso” unfortunately do not apply in the corporate world. The general expectation is that everything that is done in this world ought to be flawless. However, as we all know that is not always the case. With regards to employment the most crucial errors are made at the very beginning. This article will help you take heed of some mistakes that are made with respect to Employment Contracts.
Firstly, it is imperative to understand what an Employment Contract is. According to the Employment Act Section 2 “a contract of employment means an agreement, whether oral or in writing, expressed or implied, whereby one person agrees for a wage or other benefit or both to let his labour to and to perform it under the orders of another person who agrees to hire it.” An agreement of this magnitude must be impeccable, to ensure this take note of the following.
As stated above employment contracts can be expressed or implied. Once an employment contract has been shared with the prospective employee(s), questions are normally asked in relation to the stated terms. It is very important during this time that employers or HR representatives become cognisant of what they say(express) as it will be considered as facts and binding. This then creates expectations that if not met could lead to disgruntled employees or even staff turnover.
Probation period is informed by the skill set of the employee i.e whether they are skilled or unskilled. To determine this in the context of the Labour Law one ought to take the following into consideration: the nature of the employment, the qualifications, professional training with regards to the employment and finally the experience. Section 20(1) of the Employment Act states that “such period not exceeding three months in the case of unskilled employees, and twelve months in the case of skilled employees, as the contract may specify immediately after the commencement of employment under the contract may be a probationary period”. Therefore, an employee determined to be unskilled cannot serve probation of more than 3 months, just as an employee determined to be skilled cannot serve probation of more than 12 months. The common error in this is usually in relation to unskilled employees.
Some employment contracts are usually very silent with reference to notice during probation. Section 20(2) denotes that “Where a contract of employment is terminated during a probationary period by either the employer or employee under section 18 or 19 by not less than 14 days’ notice, the contract shall be deemed, for the purposes of this Part, to have been terminated with just cause.” Therefore, notice during probation cannot be less than 14 days. Failure to comply with this section shall make you liable to “a fine not exceeding P1 000 or to imprisonment for a term not exceeding six months or to both” according to Section 151(b).
As pleasing and relieving as it is to fill a vacancy, it is important that you ensure you seal off the deal the right way and by covering all ends.
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