The vast amount of legislation that regulates labour relations in South Africa stresses how crucial it is for the employer to follow the correct procedure, especially when dismissing an employee. Therefore you have to make sure you appoint the right person to start with! Can you revoke an offer of employment?
How to appoint an employee
The Labour Relations Act (LRA) doesn’t stipulate what procedures to follow when you appoint an employee. We advise employers to be proactive and have an interview with the candidate. Also to have an employment contract ready before duty commences. Make sure you discuss expectations, experience, salary, benefits and other terms and conditions during the interview. When the candidate doesn’t have a CV you need to obtain his/her personal details: ID number or work permit and passport, contact details, address, etc.
Dishonesty during the interview process
Often candidates are dishonest about qualifications, experience, or in certain cases a criminal record. Sometimes employers only realise this after appointing the employee. Dishonesty is a serious offence and although the employee was not in your service when he/she lied to you, there was intent to mislead to gain employment. The employer can then proceed with a disciplinary hearing to prove that the person lied.
It is very important to call references and do the necessary background checks to make sure you appoint the right person. A previous employer can verify the applicant’s reason for leaving, as well as give more information regarding overall performance and abilities. The employer can do a criminal and credit check with the applicant’s consent if this is compulsory for the position.
Legal requirements when appointing an employee
The most important step is the employment contract. This is the basis of the relationship between the employer and the employee and states the terms and conditions as agreed upon in the interview. This must be in writing and signed preferably before duties commence.
Make sure you use the correct contract for the type of position. Should you use a permanent or fixed term employment contract? Take note that it is illegal to disguise what is in fact permanent employment in the form of a fixed term contract.
What if you appoint the wrong candidate
Sometimes an employee turns out to be incapable of doing the work, or just not suited for the job. An employee with all the necessary qualifications and experience on paper may not have what it takes in the workplace. Or a manager may be incapable of managing other employees and be incompatible with other managers.
Be proactive and include a probation period in the employment contract. A probation period is generally 3 to 6 months of evaluation to determine if the employee is suited for the job. If not, the employer can terminate the employee’s services subject to regular consultation. Without a probation period clause, the employer must follow the normal poor work performance consultation procedure which is timely and costly. The employer can under no circumstances dismiss an employee without following the correct procedure. All dismissals must be procedurally and substantively fair.
Make sure you do your homework to ensure you appoint the right person. Also add proactive clauses in the employment contract and always follow the correct procedures, especially with dismissal.
LWO Regsadviseur - LWO Legal Advisor
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