Employment Law is a complex subject and we work closely with employers to assist them in mitigating their business risk by ensuring compliance and adherence. As part of our educative role, we have compiled the most commonly asked questions that employers often ask of us.

We advise employers not to use an employment contract downloaded from the internet.

Employment contracts set out the terms and conditions of employment between an employer and an employee and describe what each party can expect from the other. The employment contract needs to be drafted to account for the employer’s specific operational requirements and business practices.

Typically, the generic contracts downloaded from the internet follow the minimum terms and conditions prescribed by the Basic Conditions of Employment Act and deal only with those details required by section 29 of the Act. More specific details such as retirement age, probation periods and annual shut downs are often overlooked, even though they are critically important to the employment relationship.

Probation is the period during which an employer evaluates an employee’s work performance in order to ascertain the suitability of the employee for the particular position.

A probation period does not automatically apply to a new employee and must specifically be included in the contract of employment or letter of appointment. A probation period should be reasonable given the circumstances of the job: the period should be determined by the nature of the job and the time it takes to evaluate the employee’s suitability for the position

Employees who are still in their probation period have the same right to fair labour practices as any other employee. Consequently, an employer cannot terminate a probationary employee’s employment by simply telling the employee that he/she was unsuccessful in meeting the requirements of the job during the probation period.

During the probation period, an employer is obligated to provide an employee with the necessary guidance, training and counselling in order to assist the employee in performing satisfactorily. If the employee isn’t meeting the requirements of the job the parties may, by agreement, extend the probation period in order to allow the employee more time to improve and perform satisfactorily. Alternatively, the employer may terminate the employee’s employment in accordance with a fair counselling process. The only difference between terminating a probationary employee’s employment for poor performance, versus an employee who has passed his or her probation, is that the reasons advanced for proving unsatisfactory performance do not have to be as compelling.

An employer contemplating suspending an employee must consider the following:

  • The employer must have a justifiable reason to believe that the employee has engaged in serious misconduct
  • There must be an objective and identifiable reason to deny the employee access to the workplace based on factors that could impact on the investigation or interests of the respective parties, such as tampering with evidence and intimidation of witnesses
  • The employee must have had a final opportunity to state his/her case to the employer before a final decision to suspend the employee is made.

A written notice must be issued to the employee and needs to contain:

  • The reasons for suspension,
  • State that the suspension is on full pay (suspension without pay can only be implemented as a disciplinary sanction and must have the written consent of the employee),
  • Specify the duration of suspension.

No, there is no generally accepted retirement age. A retirement age must be agreed to in either a contract of employment or be included in a workplace policy document which should be in existence when the employee started work. If an employee belongs to a pension or retirement fund, the rules of the fund may stipulate the age at which the employee is required to retire.

If there is no agreement regarding a particular retirement age, the employer cannot simply impose a retirement age upon the employee without his/her consent. In the absence of agreement, a party would have to establish the existence of a ‘normal’ retirement age by reference to a recognised practice within the workplace, or an established retirement age of employees in the same category or position as the respective employee.

Should an employer force an employee to ‘retire’ in the absence of agreement or without being able to demonstrate a ‘normal’ retirement age, the termination of the employee’s employment may be found to be an automatically unfair dismissal.

Constructive dismissal occurs when an employee has no alternative but to resign due to intolerable workplace circumstances caused by the employer. The employee is responsible for objectively proving that the work circumstances were intolerable and caused by the employer.

In order for an employee to succeed in a constructive dismissal claim, he/she will have to prove that:

  • The prospect of continued employment was intolerable due to the unbearable employment circumstances afforded by the employer,
  • The intolerable situation was the cause of the resignation by the employee,
  • At the time, the employee had no reasonable alternative but to resign.

No, giving notice in terms of the employee’s contract of employment is not sufficient.

In order to fairly terminate the employee’s services, the employer has to dismiss the employee for a fair reason (substantive fairness) and in accordance with a fair procedure (procedural fairness). To comply with the substantive fairness of the dismissal, the nature and extent of the misconduct will need to be investigated so as to determine if it is severe enough to warrant dismissal.

Other factors such as the situation of the employee, nature of the job, circumstances surrounding the infringement, and consistency in imposing the sanction of dismissal for the same or similar offence will influence the fairness of a decision to impose the sanction of dismissal.

Before attending a disciplinary enquiry, the employee must be issued with a written notice stating:

  • The nature of the allegations against the employee,
  • Date, place and time of enquiry,
  • That the employee will be entitled to be represented at the enquiry by a shop steward or fellow employee,
  • That the employee will be entitled to call witnesses,
  • That the employee will be entitled to present evidence and cross-question the employer and witnesses.