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Trust Maanda
Post Correspondent
A contract of employment is an agreement between two parties where one offers personal service to the other for a reward.
In terms of the definition in the Labour Act, an “employee” means any person who performs work or services for another person for remuneration or a reward on terms and conditions agreed by the parties or as provided for in the Labour Act.
Section 12 of the Labour Act provides that every person who is employed by or working for any other person and receiving or entitled to receive any remuneration for the work shall be under a contract of employment with that other person, whether the contract is in writing or not.
Section 65 provides for labour rights which include right to fair and safe labour practices and standards, as well as the right to be paid a reasonable wage.
In terms of the Constitution, every employee is entitled to just and equitable conditions of work.
Apart from the Constitution, the laws that regulate employment relationships include the Labour Act and the common law.
Employees are entitled to engage in collective bargaining, organise and form or join federations or unions.
The terms of an employment contract can be express or implied.
By express, it is meant that the terms are expressly and specifically agreed on by the employer and the employee.
Parties who have expressly agreed are bound by their terms.
Terms that are not expressly agreed on are implied but are equally binding.
The duty to act in good faith or the duty of honesty, for example, are implied in any employment contract.
That does not have to be specifically agreed on.
The terms can be in an employment offer letter.
If the employee agrees to it, it then becomes a contract.
The terms may be as contained in the company policies and procedures manual, company internal code of conduct or internal memos.
Some other sources of terms of employment contracts are contained in the National Code of Conduct.
Collective bargaining agreements that set wages for the particular sector or industry also form part of the terms and conditions.
In terms of the Labour Act, there are some terms that should be included in a written agreement.
An employer shall, upon engagement of an employee, inform the employee in writing of some particulars such as the name and address of the employer, the period of employment, if limited, for which the employee is engaged and the terms of probation, if any.
The contract should also provide the terms of any employment code, if any.
The particulars of the employee’s remuneration must be provided, and how it is calculated.
The written contract must provide information on the intervals at which the remuneration will be paid.
The particulars of the benefits to be received in the event of illness or pregnancy should also be indicated.
The hours of work must be stated, together with the particulars of any bonus or incentive production scheme.
The employee should be informed of the particulars of vacation leave and vacation pay.
If the agreement does not fix the duration of the employment contract, the law deems the contract to be without a limit on time after the employee has been engaged for a certain period.
The terms of a written contract, whether they are express or implied, form the basis on which the parties measure if the other is adhering to their side of the bargain.
Failure by the other party to perform as agreed is when the other party can take action against the other.
For example, if an employee does not perform as expected in terms of the agreed and implied terms, including what is in the statutes, policies and regulations, the employer can take disciplinary action against the employee.
If there is an internal code of conduct, then the code is invoked.
If there is no internal code, then the code for the employment sector is applied.
If there is no code of conduct for the sector, the employer applies the Labour National Code.
These codes shall be discussed in articles to follow.
If it is the employer who is not delivering on his or her side of the bargain, for example, by not paying the remuneration as agreed or in terms of statutes or regulations, the employee takes the matter to the appropriate National Employment Council or to a Labour officer.
The employer will be summoned to answer to the allegations.
In order for employment contract to endure, the parties should perform in terms of their agreement and the law.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646
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