The Golden Rules of Employment contracts- one of the most important documents your organisation should have in place.
One of the most important documents that any business should have in place
is signed employment contracts between the organisation and the employees. These
lay the ground rules between the parties, let employees know exactly what is expected
from them and what they can expect, and provide a reference document on a wide
variety of issues. Without an employment contract in place employers and employees
will be deemed to be bound by the Basic Conditions of Employment Act and the Labour
Relations Act- not an ideal situation as employers can get so much more protection
and benefit out of a good strong employment contract.
There are some important factors to bear in mind when drawing up employment contracts:
1. KISS (Keep it Simple Stupid) - don't use convoluted legal speak. Use concise,
simple English (and if necessary Zulu/ Xhosa) that both parties will understand.
2. Make sure your new employee signs the contract BEFORE they start work- once
they've started work they can't be forced to sign the contract and you might have
to negotiate tricky clauses e.g. restraint of trades.
3. If your employees haven't signed contracts don't despair- put them in place
then sit down with your employees and work through them together. Ensure this
is done in a relaxed non-threatening environment with the emphasis put on the
mutual benefits of both parties formalising their rights and responsibilities,
and that the organisation is focussing on ensuring that they are legally compliant.
4. Don't forget contracts for fixed term employees (and remember to get new ones
signed once the term is reached- put a reminder in Outlook!) and Independent Contractors-
vital in protecting your business from these individuals potentially stealing
your clients, staff, trade secrets or methodologies.
Things you should look at including in employment contracts for permanent staff:
1. Probationary periods- usually three months in duration. This ensures that you
can terminate the services of unsuitable new employees quickly and efficiently
(note, you cannot just tell them to pack their bags and get out, there is a process
that must be followed).
2. Conditions of employment:
a description of duties with the proviso that the organisation can require the
employee to undertake other duties within reason- so no 'its not in my job description'
issues.
b. working hours and breaks (including smoke breaks)
c. remuneration - monthly payment date, amount, method of payment, relevant deductions
and any extra provisions such as commission, petrol / cell phone allowances,
d. benefits - annual leave (usually 15 days but can be increased especially for
senior staff or long service staff); sick leave (with provisos for investigating
excessive or suspicious sick leave), family responsibility leave, annual bonuses,
annual increases, medical aid, retirement funding if applicable.
3. Protection clauses for the employer:
a. exclusive service - ensuring your employee only works for you unless you give
them written consent
b. trade secrets and confidentiality - ensuring your confidential information,
methodology, marketing / expansion plans, new contracts/ clients say exactly that-
confidential.
c. ownership and / or copyright- ensuring that any materials, programmes, systems
etc that are developed by the employee while he/she is employed by the organisation
is solely owned and copyrighted by the organisation.
d. non-solicitation of clients/ fellow staff members- don't worry, we're not talking
about your employees setting up a red light zone but ensuring that ex-employees
don't steal your clients, potential clients and fellow staff members!
e. restraints of trade- these are only applicable for key members of staff where
it would make a difference if they started up a competitor business / worked for
a competitor in reasonable proximity to your business. You need to look at these
carefully.
f. electronic communications proviso- to stop abuse of e-mail, internet; allow
you to access employees e-communications and instigate appropriate discipline
in the case of employees accessing porn sites, downloading inappropriate or huge
amounts of data etc.
g. termination- usually one calendar month but you can make it longer in the case
of key employees that you are going to battle to replace and train up new employees.
And finally
Don't forget to get both parties to sign, date and witness and
put the original copy on the employees file. You would be surprised how often
this step is missed and it negates everything mentioned above!
Give me a shout if you have any questions or if you need help drawing up an employment
contract.
Claire Stewart
PeopleWise

