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In Article Archive, Private by Jan Truter15 Comments

Generally an employee may not be dismissed for refusing to sign a contract of employment. But are there circumstances where the employer can take stronger action short of dismissal?

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  1. 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.

    1. Author

      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.

  2. 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.

    1. Author

      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.

      1. 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.

        1. Author

          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.

  3. 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

    1. Author

      Reply to Nadia: Our advice is that, instead of trying to force employees to sign contracts, you rather take disciplinary action for their misconduct.

  4. 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?

    1. Author

      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.

    1. Author

      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.

  5. Very informative and a great help to the “smaller” consultants who do not have access to Case Law. Thank you I appreciate your service.

    Jogan Krugel

  6. Author

    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.

  7. 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.

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