When reviewing and updating contracts of employment, we frequently correct some prevalent mistakes made by employers. This checklist addresses a few of these typical concerns and serves as a guidance note for employers when preparing contracts of employment:
1. The probation period must be reasonable given the circumstances and nature of the job, as well as the time it takes to determine the employee’s suitability for the role and cultural fit to the organisation
2. A fixed term contract of employment should not be used as an alternative to probation but must be related to an “external” business imperative e.g. the replacement of an absent employee, a temporary fluctuation in workload or a specific project which has a clear beginning and a clear end.
3. Whilst every employee owes a duty of confidentiality to their employer, not every employee should be required to sign a restraint of trade. It is crucial that there be a proprietary interest(s) worthy of protection e.g. the employee has entrenched customer connections, specialised know-how and/or was privy to proprietary information that would be valuable in the hands of a competitor.
4. A one-size-fits-all restraint also serves no purpose. The restraint activities should be moulded to fit the particular protectable interest being addressed.
5. A final mention on restraint of trade provisions is that the restraint period must not be unreasonably long. A court determines the enforceability of a restraint of trade based on the reasonableness thereof. The duration and geographical areas will be reviewed in assessing the reasonableness and thus enforceability of the restraint.
6. Workplace policies should not be incorporated as terms and conditions of employment. This impedes an employer’s flexibility to change workplace policies as terms and conditions of employment may only be changed by agreement. A workplace policy which is a term and condition of employment also requires strict compliance as opposed to being a mere guideline.
7. As a last tip, we caution that employees cannot waive rights which are entrenched in a statute. Clauses which are contrary to the rights entrenched in the Basic Conditions of Employment Act, without being more favourable to the employee, will not be enforceable.
Please contact Melanie Hart at melanie@bv-inc.co.,za should you have any queries on your employment contracts.
Disclaimer: This article is provided for informational purposes only and is not intended to serve as legal advice. Readers should consult one of our legal professionals for advice tailored to their specific circumstances.