Our firm is frequently required to guide clients in the drafting of employment contracts.
As is to be expected, the wording and structure of an employment contract is extremely important. All too often, employers and employees regret not having paid enough attention to the provisions of an employment contract.
Certain basic content is important. For example, the starting date and hours of work; if overtime is compulsory, it must be confirmed in the employment contract.
The employee’s title and responsibilities should be clearly stated.
Employers have a statutory obligation to include all information relevant to the various categories of leave, including annual leave, sick leave, family responsibility and maternity leave.
The inclusion of a clause confirming that the employee is required to complete an initial probationary period is advisable.Â Probationary periods are recognized in law, and should be of a period long enough for the employer to determine whether the employee is capable of meeting all requirements of the job.
The duration of a probation period can be as long as is reasonable necessary to determine a new recruits suitability, although the standard norm presently is a six-month probation period.Â The probationary employee’s performance should be regularly assessed, and feedback on performance provided, throughout the probation period.
In addition, probationary employee’s, as is in fact the case with post-probation employees, should be provided reasonable training, guidance, support and counseling in the performance of their duties.
Probationary employees may be dismissed on grounds of poor work performance during, or at the end of the probationary period; a performance hearing is however required to be held prior to any such dismissal.
Probation periods may be extended if the employer is uncertain whether the probationary employee has met all of the job requirements to their satisfaction.
It is important to note that probation is a new employee concept, and does not apply to existing employees who are promoted.
It is also, on occasion, prudent to obligate employees to undergo polygraph tests and searches of their belongings and persons.
The nature of the employer may even require the employer to include a confidentiality agreement regarding ownership of all company documents and information both during, and on termination of, employment.
Provision should be made for the employee to have access to, and be educated on, company policies, rules and procedures. It may well become important at a later date, to prove that the employee had prior knowledge of a company rule if, for example, it is subsequently alleged that the employee is guilty of having breached the rule.
Finally, notice periods must be specified. Many employers simply apply a thirty day, or calendar month, notice period. The Basic Conditions of Employment Act stipulates that a minimum of one-week notice period applies during the first six months of employment, two weeks in the second month of employment, and four weeks thereafter.
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