Mail & Guardian
Mail & Guardian

What’s in your contract?

6 min read

The following question was sent to the Teacher:

I would like to know if you can help with information about employment. I have been working at a school for 13 years under different governing bodies, with no benefits from the school. I heard that there is a law that says that an employee who has been working for more than 10 years must be regarded as a permanent employee. I live in fear that my job might be terminated any time, especially because I am instructed to reapply for the same position each year. I don’t receive a public holiday allowance, Sunday or nightshift allowance and I am refused annual leave.

Answer: The most important piece of advice is that the reader should consult a labour lawyer who will be able to deal with the specifics of this case in terms of labour law. I assume that the reader has a contract of employment and he needs to take a copy of this contract with him when consulting the lawyer. Labour law is a complex field and is best dealt with by people with specialist knowledge of labour law.

The information provided by the reader also does not indicate whether he is employed by the school (as represented by the school governing body) or by the provincial department of education as represented by the head of department. His conditions of employment, any legal recourse that he may have and the likely cost of litigation will differ significantly depending on which of these two entities is his employer.

Such as every other employee in South Africa, he is provided with a degree of protection by the Basic Conditions of Employment Act. This Act prescribes certain minimum conditions of employment. Some of the most important conditions set out in the Act are listed below.
The employer must supply the employee with the following particulars in writing on commencement of employment:

  • the full name and address of the employer;
  • the name and occupation of the employee or a brief description of the work for which the employee is employed (job description);
  • the place of work and where the employee is required or permitted to work;
  • the date on which the employment began;
  • the employee’s ordinary hours of work and days of work;
  • the employee’s wage or the rate and method of calculating wages;
  • the rate of pay for overtime work (where applicable);
  • any other cash payments that an employee is entitled to;
  • any payment in kind that the employee is entitled to and the value of the payment in kind;
  • how frequently remuneration will be paid;
  • any deductions that will be made from the employee’s remuneration;
  • the period of notice required to terminate a job or, if employment is for a specified period, the date when the employment is to terminate; and
  • a list of any other documents that form part of the contract of employment, indicating a place that is reasonably accessible to the employee, where a copy may be obtained.

    • Keeping records

  • The employer must keep a record for a period of at least three years (from the date of last entry).

    • Remuneration
    The employer must give the employee the following information in writing on each day the employee is paid, that is, this information must be supplied on or with the employee’s payslip:

  • the employer’s name and address;
  • the employee’s name and occupation;
  • the period for which the payment is made;
  • the employee’s remuneration in money;
  • the amount and purpose of any deductions made from the remuneration; and
  • the actual amount paid to the employee.

    • Working hours
    Maximum working hours:
    The maximum number of “ordinary” working hours (hours excluding overtime) that an employee may be required to work is 45 hours in a week and nine hours in a day for an employee who works a five-day working week (or eight hours a day for an employee who works a six-day working week).
    Meal intervals:Meal intervals are not normally paid working hours. An employee is entitled to a meal interval of at least one continuous hour after he or she has worked continuously for five hours.

    Leave
    Annual leave

  • Each full-time employee is entitled to 21 consecutive days of leave in any “annual leave cycle”. An annual leave cycle is a period of 12 months of employment.

    • Maternity leave

  • An employee is entitled to four consecutive months of maternity leave. Maternity leave may begin at any time from four weeks before the expected date of birth, unless otherwise agreed, or at a date from which a doctor or midwife certifies that it is necessary for reasons of the employee’s or her unborn child’s health.
  • No employee may work for six weeks after the birth of her child.
  • Employees are required to give an employer at least four weeks’ notice of the date when the employee intends to begin maternity leave and to return to work after maternity leave.
  • Maternity leave is not required to be paid leave.

    • Sick leave

  • The sick leave entitlement of an employee is based on a 36 months’ employment cycle with the same employer. This is called the “sick leave cycle”.
  • The amount of sick leave that an employee is entitled to is equal to the number of days that an employee would normally work in six weeks. For a full-time employee working a normal five-day working week, that would be equal to 30 days of sick leave in any 36-month period.
  • Sick leave is paid leave.

    • Terminating a job
    A contract of employment is terminable at the instance of either the employee or employer on notice of not less than one week for an employee employed for six months or less, two weeks for an employee employed for more than six months but less than a year, and four weeks for an employee who has been employed for more than a year. It is important to note that this provision does not give an employer the right simply to terminate the employment of an employee without reason.

    On termination of service, every employee has the right to be issued with a certificate of service which provides the following information:

  • the employee’s full name;
  • the name and address of the employer;
  • the date of commencement and date of termination of employment;
  • the title of the job or a brief description of the work for which the employee was employed at date of termination;
  • the remuneration at date of termination; and
  • if the employee requests it, the reason for termination of employment.

    • Alan Clarke is a former school principal and author of The Handbook of School Management. Please note that his answer is not meant as legal advice, but an attempt to explain to readers the kind of protection to which they are entitled