Four common mistakes regarding fixed term contracts include:

Mistake 1: no written employment contract

One of the biggest mistakes employers make is not to implement written employment contracts, or to settle for a generic employment contract that offers minimal protection when there is a dispute in the workplace.  The employee is employed from the moment he/she accepts employment, irrespective of how the relationship is recorded – via an oral or written agreement.  A written agreement (employment contract), however, creates clarity by confirming the terms and conditions of employment agreed upon and protects the employer in terms of the employment relationship going forward. 

The employment contract can be of immense value to the employer if used effectively. Making a mind shift regarding employment contracts from an “administrative burden” to “risk mitigating tool” can save employers a lot of time and money in the long run.

Mistake 2: disguising permanent employment

It is crucial that an employer enters into the correct type of employment contract.  Ask yourself:  is the position of a permanent/indefinite nature; or is the position of a temporary nature, for a specific time period or for a specific project?  Employees employed on a fixed term basis for longer than three months, will be deemed to be permanent employees, unless the longer fixed term period is justifiable in terms of the Labour Relations Act (“LRA”). 

Mistake 3: creating an expectation

Mistake 4: different terms and rules

There is a myth that the same legislation, discipline, policies and procedures does not apply in the same way to fixed term employees, as it does to permanent employees.  The only difference between a fixed term and a permanent employee, is the term of employment. 

Fixed term employees must be treated the same as permanent employees with regards to wages, leave and other benefits.  Employees on fixed term contracts must also be given equal access to opportunities to apply for vacancies as well as be entitled to severance pay upon termination of employment where the employee is employed on a fixed term contract exceeding 24 months.

Die LWO Werkgewersorganisasie het op RSG Landbou gesels oor ‘n indiensnemingskontrak

Daar word gefokus op wat die wet vereis asook wat in die indiensnemingskontrak ingesluit moet word.

The employment relationship between the employer and the employee is based on mutual benefits and respect. Clear rules and guidelines ensure that friction and misunderstandings are kept to a minimum. This in turn promotes not only productivity but also a positive working environment.

Recording the employment relationship

The employment contract is the basis of the relationship between the employer and the employee. It records and confirms the terms and conditions of the employment as agreed upon. It is vital, as with any agreement, that this contract is recorded in writing. A common myth is that the employee is not a permanent employee if there is no employment contract. This is not true, as the employment relationship is effective form the moment an employee commences work, irrespective of how the relationship is recorded – via verbal agreement. The major benefit of having the employment contract in writing, is that you have proof of the agreement itself. You also have proof of the terms and conditions of employment as agreed upon.

Monitoring the employment relationship

Monitoring the employment relationship is an ongoing process with regards to duties, rules in the workplace, enforcing discipline, solving grievances and maintaining a fixed standard in terms of quality and quantity. Employers must take care to record the following in writing:

• The employment contract
• Declaration of duties
• Rules – the employer must be able to prove that the employees are informed and aware of the workplace’s rules and policies.
• Disciplinary code – employers must have an up to date disciplinary code that lists offences with the appropriate sanctions to use when rules and procedures are not followed.
• Disciplinary action –  the CCMA mainly looks at two elements when and employee refers a dispute:
  • substantive fairness (a valid and fair reason for the sanction imposed), and
  • procedural fairness (the required legal procedure before imposing a sanction).

Refusal to sign documents

When an employee refuses to sign a document, the employer must explain the document in the presence of a witness and the witness can then sign the document as proof that it was explained to the employee. Video footage can also be used as proof.