Employers are
often at a loss when an employee refuses to sign a contract of employment. Can
the employee be disciplined or dismissed? What other measures are available to
the employer?
One of the most
common that employers make is to appoint a person without having agreed on all
the terms and conditions of employment. When the employee is subsequently
required to sign a contract of employment, the employee refuses or fails to
sign the contract. This may be due to some misunderstanding or unhappiness with
regard to particular provisions in the contract.
Our law states
that verbal employment contracts are perfectly binding. But, obviously, it’s
better for both employer and employee to enter into a written contract, to
record all the pertinent rights and obligations of both parties. This avoids
vagueness.
What should an employer do if it does not have a written agreement in
place?
It is important to explain to the employee that it is to the benefit of
both parties to have a written contract of employment. The provisions of the
contract should be explained to the employee and the parties must establish
whether there are any areas of disagreement. If there are none, and the
employee still refuses to sign the contract, it serves no purpose to attempt to
compel the employee to do so.
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. The employer complies with
the provisions of the Act if it provides the employee with a copy of the draft
contract with a note that the employee has refused to sign it.
A signed written contract does, however, have definite advantages. It
brings certainty and reduces the likelihood of disputes. There might also be
provisions that are important to the employer, e.g. confidentiality or a restraint
of trade undertaking. The enforcement of such provisions would be very
difficult, if not impossible, without a signed contract.
If the employee refuses to agree explicitly with a provision that is
reasonable, the employer may embark on a procedure that could lead to the
termination of the employee’s services due to operational requirements
(retrenchment).
Professional advice and assistance are recommended in these
circumstances.
