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EMPLOYEES WHO REFUSE TO SIGN A CONTRACT
Generally an employee may not be dismissed for refusing to sign a contract of employment. The reasons are, firstly, that it is not a legal requirement for employees to sign a contract of employment and, secondly, the absence of a contract does not nullify the verbal agreement of employment. But are there circumstances where the employer can take stronger action?
The case of Johannes Kgotso Mocheko vs Powa Props (Pty) Ltd dealt with the principles that would normally apply in a case where an employee refuses to sign a contract. Here the employee, Mr Mocheko, was presented with a contract of employment after 7 years’ employment as a cleaner. He refused to sign it for reasons that were not entirely clear. After having ignored two subsequent written warnings to sign the contract of employment, he was dismissed. In the dismissal letter, the employer expressed the view that Mr Mocheko had been employed illegally. The CCMA Commissioner pointed out that, firstly, the absence of a written agreement did not nullify the verbal agreement of employment and, secondly, the relationship existing between them was not illegal. As the dismissal had been for an invalid reason, it was substantively unfair. Mr Mocheko was awarded twelve months’ remuneration as compensation.
In a more recent CCMA case of Mahlangu vs Footballers for Life (Pty)Ltd the outcome was different. After concerns expressed by a sponsor for funding a private company, it was decided to convert the organisation to an NGO. New contracts between the NGO and all coaches were drafted. Mr Mahlangu refused to sign despite various requests and failed to respond and an invitation to raise any concerns. He was given notice of a disciplinary hearing for refusing to carry out an instruction, but failed to arrive without giving reasons. Mr Mahlangu was found guilty and dismissed in his absence. In this case the Commissioner did not hesitate to find that the dismissal had been procedurally and substantively fair.
What distinguishes the latter case from the former is that the signing of new contracts became an operational necessity for the employer in order to meet the needs of a sponsor. It was therefore not unreasonable to expect the employee to sign a new contract. If the employee had any legitimate concerns, he could have engaged with the employer in order to resolve such concerns. He chose to repeatedly ignore the employer’s requests to sign the contract. According to the Commissioner that amounted to an act of insubordination which justified dismissal in this case.
The Footballers for Life case involves a rather unusual set of circumstances. However, it does not negate the principles confirmed in the Powa Props case. So, if disciplinary action is inappropriate, what should an employer do when an employee refuses to sign a contract of employment? It could be useful to make a point of discussing the terms and explaining to the employee that both the employer and employee benefit from the certainty provided by a written contract of employment. If there are no areas of disagreement and the employee still refuses to sign the contract, it serves little purpose to attempt to compel the employee to sign unless there is a good operational reason why there should be signed contract of employment.
The Basic Conditions of Employment Act does not require the parties to enter into a written contract of employment. It simply requires the employer to supply the employee with written particulars of employment and it provides that certain items must be included in such particulars.
Jan Truter of www.labourwise.co.za
www.labourwise.co.za is an on-line labour relations service aimed at assisting employers with the implementation of effective labour relations. They can be contacted via the website or info@labourwise.co.za.
Comments
Good day .The company lost the copy of a fixed term contract for an employee which was renewable each year and now the employee is refusing to sign the the contract saying the first one was permanent.What can employer do to fix the mess and the previuos HR is nowhere to be found.Can the employee be terminated
A fixed-term contract has to be for a justifiable reason, which has to be written into the contract. The validity of a year-to-year fixed-term contract is questionable in the first place. So, while the appointment is likely to be regarded as indefinite/permanent, you can follow a process to terminate employment for operational reasons (retrenchment) if the employee’s services are no longer needed.
Good day,
Am employed and signed a contract that says am a receptionist.The owner of the company says
am manager verbal and also l do the manager duities.Plese advise what to do.
It depends on what he means by ‘manager’ – maybe it just means that you are expected to manage administration and deal with other logistical aspects in his absence. You do not mention what duties and responsibilities were agreed when you started working or how long you have been working there. I suggest you discuss it with him and clarify what he means, as well as what the implications are.
Just quickley someone asked me to look over a contract of employment. It states that the Employer wants a 6 month notice period. Surely this is onerous and illegal.
Reply to Leigh: The parties to an employment contract are free to agree on a longer termination period than the minimum required in terms of the BCEA, as long as it applies both ways.
Hi
What if the employee was promoted, signed new contract with a 6 months notice period but was only given an unsigned copy for reading purposes. 2 years later employee is retrenched now employer claims that there is no such contract on file and as the employee doesn’t have a company signed copy, they don’t need to pay him the 6 months notice but only the 1 month as his original contract states.
An agreement does not have to be in writing to be enforceable. The challenge is to prove what was agreed. The copy that was given to you should be helpful.
Good day
I am the new business owner of a fuel station. when I took over the business, the manager that i employed did not draw up new employment contracts. However in light of the motor industry strike in September the need for a written employment contract has become necessay. I am now faced with late coming, bad language to fellow workers, petty thief, bad mouthing to customers. I have had a labour lawyer come in to afford the workers an oppertunity to voice their grievances and have drawn up a contract highlighting general worker expectation regarding being on work on time etc. However the workers do not wish to sign the contacts.In prevoius years the fuel attendants ran things their own way, handling cash, giving fuel to customers as they wish. I have now put in controls to stop theis unprofessional behavour and off course the fuel attendants do not like the new control measures , for example a cashier is employed to prevent shortages in their cash takings. What can I do with regard to therir refusal to sign their contract. For eaxmple there was a power shortage in the week and 2 of the workers just left 2 hours early
Reply to Nadia: Our advice is that, instead of trying to force employees to sign contracts, you rather take disciplinary action for their misconduct.
Morning
We have employed a professional in our small business. after 3 years of employment we offered him a cointract to sign as we became aware that he was working for an opposition medical practice ( with our knowlege) and felt that we needed to put a resrtict of trade in place. He now flatly refuses to sign the contract. what can we do? Is there someting like forces resignation?
Reply to Penny: It is unacceptable for and employee to do work that conflicts with the interests of an employer. You may not be able to force him to sign any restraint, but that does not mean there is no basis for terminating his employment. This by no means a straight forward situation and I suggest you approach a specialist in labour law to advise and assist you.
what if the employer refuse to sign an employment contract?
Reply to Andy: There is no obligation to sign a contract, only to provide the employee with written particlars of employment. By default the BCEA or relevant wage regulating measure will apply.
Very informative and a great help to the “smaller” consultants who do not have access to Case Law. Thank you I appreciate your service.
Regards
Jogan Krugel
Response to Leonie: If you were dismissed without a hearing or without a good reason you can refer an unfair dismissal dispute to the CCMA. Bear in mind that you have to refer the matter within 30 days after your dismissal.
My case was this: I was in the second last year of a 43 year career as a teacher. I have three degrees, and had taught at this school for 7 years. I was teaching 7 coursaes, and working very well. 18 distinctions over the 7 years. When I started, the board agreed to allow me to sign a contract with a month’s notice, because I was unsure of my future plans. JHowever, when it became clear, after 4 years that intended to stay to retirement, they asked me to sign a new contract giving three months notice. I agreed verbally, and even reminded the principal on one accassion that I had not yet done so, but she never produced it. She and I had a fall out, and I was fired. Apart from the huge tromatic emotional effect this had, the school, which we had started together, owed me R18000.00. They paid me two months salary, in effect bringing my notice to a three month notice period, but refused to pay me what was owed, because they believed they had covered this since I had only signed a contract giving one month’s notice, and they had paid me for three months. What is my position? I did verbally agree to sign the new contract, but it is her word against mine. Please advise.