Contracts

South African work contracts

Foreigners cannot get a working permit to enter South Africa unless they sign a work contract. There are different kinds of working contracts and requirements foreigners should know before signing them.

Every employer in South Africa is obliged by law to provide a legal working contract no later than the first day of work, whether it is a part-time, temporal, weekend, or a one day a week job. There are different kinds of contracts: permanent, fixed term, probation, or project employment.

In order to get a work permit for South Africa, you must sign a job contract covering the entire period for which your permit is required, and it should be signed by both parties.

Permanent Employment This kind of contract must follow a process. First, the prospect employee is given a written offer. Second, the employee accepts the offer in writing. Then, the contract is entered.

Fixed Term Employment This is a Permanent Employment Contract with a start and end date. In this contract, the employer can decide if certain benefits (pension, provident fund, medical aid, group life assurance facility, etc) are applicable. When signing the contract, the employee agrees that the contract could be terminated for misconduct, operation requirements, or incapacity; and that no claims will be raised against the employer for benefits, once the contract ends.

Temporary Employment This is a Fixed Term Contract in which either party can terminate the contract; provided that it presents a written notice of intention a month before.

Project Employment The Project Employment Contract is yet another kid of Fixed Term Contract. Instead of a finishing date, the employee's contract lasts for as long as the project needs to be completed (it is worded along the lines “the worker shall start on [date] and shall end upon completion of the project”). It also requires a one month written notice before terminating the contract.

Probation Period

The employer stipulates all the conditions applicable to the probation period in the contract of permanent employment, for example, that the probation period will not be extended (i.e. three months can be enough time for an employee to prove himself). The period of probation is determined depending on the position. If the employee is dismissed during the probation period, he has the chance to state a case in response, assisted by a trade union representative, or a fellow employee.

After the probation period, the employee cannot be dismissed for unsatisfactory performance (unless the employer has given the appropriate evaluation and training, and the employee performs unsatisfactorily after a period of time given for improvement). The process leading to dismissal in any case should follow an investigation, in which the employer should consider other ways to solve the matter and the employee can be assisted by a trade union representative, or fellow employee.

Termination

Both parties can agree on the termination of a contract in certain cases (i.e. the employee's task is completed). If the contact is a Fixed Time Contract, it ends when it expires.

There are legal causes for dismissal, but some might fall into the therms of “unfair termination” (i.e. if it is not because of employee's misconduct). Notices of termination must be given to the employee according to the time they've been working. If it is within the first four weeks of employment, the notice of termination must be given a week before. For more than four weeks but less than a year, there must be a two week notice; and for more than a year (or after four weeks if it's a farm or domestic employee), there must be a four week notice. These notices must not be given if the employer is absent on leave (including sick leave), they must be written unless the employee's illiterate, and the employee must be issued a certificate of service.

Further reading

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