By Professor Barney Jordaan who can be contacted at

www.jordaan-stander.co.za 

Visit our Labour Law publications

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Myths abound over legal requirements in employment. The scary thing is that many important decisions - also strategic ones - are often taken on the basis of these myths. Not surprisingly, the proponents of these myths are mostly people engaged in the labour relations field and who dispense legal advice without having a proper understanding of law. The following are the most common ones.

# 'The employee does not have a contract of employment'

Unless the parties to the agreement have stipulated it, there is no requirement in our law that a contract of employment should be in writing in order to be valid. A contract of employment exists if there is agreement about the essential aspects of the relationship, i.e. the wage, the duties and the fact that the one party will be under the other's direction and control ('subordination'). While it is preferable for the contract to be in writing (it limits the possibility of disputes) it may also be entered into verbally, or may arise out of the way in which two parties conduct themselves. Once the essential requirements of the contract have been agreed (verbally, tacitly or in writing) a contract of employment exists and all the normal consequences flow from the relationship, e.g. labour legislation applies, including applicable minimum wage provisions in sectoral determinations; the employee is protected against unfair dismissal, and so on. Put differently, just because you can't see it, it does not mean that it isn't there.

As far as written agreements are concerned, it matters not what you call it, i.e. a contract of employment or letter of appointment. The fact is that there is an employment contract with some of the terms having been reduced to writing. A properly drafted contract will usually state that the contract is the exclusive memorial of the agreement, whereas a 'letter of appointment' is more open-ended.

# 'If we've negotiated to the point of deadlock, management can implement unilaterally'

This is possibly the most dangerous myth of all, because many a negotiation process has fallen flat because of ignorance of one of the basic rules of our common law, i.e. that parties to a contract must stick to their promises. In other words, 'a deal is a deal'. If terms have been agreed, and the terms are clear, neither the employer nor the employee may unilaterally change those terms (unless the change is minimal). An employer therefore cannot remove a guaranteed 13th cheque, or change agreed hours of work, without the employee's consent. In the same way, employees cannot award themselves a wage increase. The agreed terms can only be varied by a further agreement. Of course, there are ways and means of obtaining agreement, e.g. through industrial action or the possibility of an operational requirements dismissal, but consent there must be.

If the proposed change affects work practices only (as opposed to agreed terms) unilateral change would be possible after consultation, but subject to the possibility of employees resisting the change through industrial action or, in some cases, a complaint of unfair labour practice.

It is certainly not always easy to distinguish between the two situations and the distinction becomes even murkier if the contract in question is not properly drafted or, worse still, is a verbal one. Nevertheless it remains a vital distinction which, if not made, can result in interdicts and claims based on breach of contract.

# 'Fixed-term contracts may only be renewed three times'

What is supposed to happen after the third time is not always clear, but mostly it is alleged that the employee then becomes permanent. The truth is that there is no such rule in our law. Nobody has a right to be appointed on any basis, let alone permanently, unless there is a contract to that effect. The same applies to temporary employees. The common law rule still applies to temporary contracts: they come to an end when their terms expire. This does not constitute a dismissal, except where the employee is able to prove a 'reasonable' expectation of renewal, in which case the non-renewal does not lead to permanency, but to an obligation on the part of the employer to justify its reasons for not re-appointing the employee. If it can justify the decision, the contract is over. If it can't the employee might be reinstated for another fixed term.

If temporary employees want permanent status, they either have to prove an agreement to that effect, or strike to obtain it.

# 'Medical certificates are sacrosanct'

Another myth that costs employers thousands in lost production every year. A medical certificate is documentary proof of an employee's illness. As is the case with all documents, one need not accept a certificate unless it is authentic (i.e. contains all relevant details and has not been tampered with) and one is satisfied with its contents. What does one want in a certificate? An indication that a registered medical practitioner has actually examined the patient and expressed the (professional) opinion that the employee was too ill or injured to work. A certificate that does not reflect this deserves to be treated with caution. In cases of doubt over the contents of the certificate, additional information should be required of the employee or, with the employee's consent, of the practitioner concerned. A second opinion may also be insisted upon in appropriate cases.

# 'In job interviews, all candidates must be asked the same questions' / 'In interviews, questions of a personal nature should be avoided'

This is a rule of convenience and may be good practice, but it certainly is not the law. All the law states is that employees may not be unfairly discriminated against. Nowhere does it require that the same questions must be asked. It even allows for questions of a potentially discriminatory nature to be asked (e.g. 'are you pregnant') provided in this case that the question is relevant to determining the employee's suitability for employment (e.g. ' the hazardous substances in the work area could be harmful to the fetus'.)

# 'By using labour brokers I can escape compliance with labour laws'

This is partly true, because the labour broker is deemed to be the employer. However, the client remains liable for compliance buy the broker with the provisions of the BCEA; arbitration awards and court judgments applicable to employees of the broker working at the client; and applicable sectoral determinations or bargaining council agreements.

Conclusion

Decision-makers in organisations should obtain proper legal advice before taking decisions about staff, or at least ensure that the advice they receive correctly reflects the legal position. This is not to suggest that the law is the only factor to consider in making such decision, far from it. Only doing what the law requires when it comes to employment issues is not recommended, but neither is making important decisions with financial and other implications based on half-baked or ill-informed advice about the law's requirements. Labour law does not only consist of legislation. The latter is founded on a set of common law principles and institutions (e.g. contract) that are as relevant to the employment relationship as ever. An understanding of that foundation is essential for sound advice in this branch of the law.

*Reprinted with the permission of Siber Ink www.siberink.co.za

first published in SiberWorks No 14 September 2004