What to look out for in a contract of employment

The contract of employment is a voluntary agreement between two parties in terms of which one party (the employee) places his or her personal services or labour potential at the disposal and under the control of the other party (the employer) in exchange for some form of remuneration which may include money and/or payments in kind.[1] This article will provide some basic information about contracts of employment law in Zimbabwe, including their formation, different forms, formalities and content. 

Formation of the contract of employment

 

A contract of employment comes into existence when one person, the employee, enters into an agreement with another, the employer, to render personal services to, and under the control of the employer, in return for remuneration.[2] The agreement entered into by the parties must be voluntary. 

 

If duress (force or threats) is used to convince the employee to agree to the agreement then the contract is invalid.[3] It is also essential that an employer makes a clear and unequivocal offer to the employee and the employee to accept the offer for an agreement to exist. Once an employee accepts an offer the agreement cannot be unilaterally cancelled by one party.

 

Forms of contracts

 

They are two main types of employment contracts, permanent contracts (contracts without limited time) and temporary contracts (fixed-term contracts). Permanent contracts of employment are contracts that do not specify the duration or date of termination, other than a contract for casual work or seasonal work or the performance of some specific service.^[4] The advantage of permanent contracts for employees is that they ensure job security for the employee as notice of termination for permanent contracts is three months.[5] 

 

A casual worker is deemed to have become permanent employees on the day that their period of engagement with their employer exceeds a total of six weeks in any four consecutive months.^[6] This is a disadvantage for employers entering into renewed casual contracts.

 

While fixed-term contracts are contracts that specify the time for completion or provide that the contract expires on completion of a specified task. Fixed-term contracts are beneficial to employers as they allow for the termination of the contract once the fixed term or the specific purpose has been completed.  These include;

Fixed duration contracts- have a starting date and expiration date.

Seasonal contracts – relate to that is, owing to the nature of the industry, performed only at certain times of the year;[7]

Casual contract – means work for which an employee is engaged by an employer for not more than a total of six weeks in any four consecutive months.[8] The difference between a fixed duration contract and a casual contract is that it is for a period longer than 6 weeks;

Fixed task contracts- an employee is hired for a specific project or task.

A probationary contract – is a trial period in which the employer assesses the employee’s competence and suitability.  A contract of employment may provide in writing for a single, non- renewable probationary period of not more than one day in the case of casual work or seasonal work and three months in any other case.^[9] During this period notice of termination of the contract to be given by either party may be one week in the case of casual work or seasonal work or two weeks in any other case.^[10] Probation cannot be extended if you continue working then you are deemed to be a permanent employee.

Formalities in the contract of employment

 

Parties to an employment contract must place the agreed terms in writing to avoid disputes. However, an employment contract that is not reduced into writing is still binding on the parties. Our labour laws require parties to a contract of employment to have the requisite legal capacity and provides that minors, foreigners, insolvents and mental patients have restricted capacity. 

 

The minimum age of employment in our labour law is 15 years and 13 years for contracts of apprenticeship however authorisation must be granted by a guardian^[11]and the work being done must not jeopardise the health, safety or morals of the minor.^[12] To enter into a contract of employment a foreigner must be in possession of an employment permit.^[13] A person defined as a patient under the Mental Health Act, Chapter 15:12, also requires the approval of their curator before engaging in a contract of employment.

 

A contract of employment must be capable of being performed. If it relates to the performance of any act that is impossible in nature it is void. If the contract is legally or physically impossible to perform, the contract cannot be enforced at law.[14] Lastly, the terms of the contract must be clear, complete and certain. If the terms of the contract are uncertain, it cannot be enforceable by a court of law.^[15]

Contents of the contract of employment

Section 12 (2) of the Labour Act now stipulates certain mandatory requirements with which contracts of employment must comply. The employer is obliged to reduce the agreement into a written contract that specifies the following particulars:

• the name and address of the employer;
• job title;
• the period of time, if limited, for which the employee is engaged;
• hours of work;
• the terms of probation, if any;
• the terms of any employment code;
• particulars of the employee’s remuneration, its manner of calculation and the intervals at which it will be paid;
• particulars of any bonus or incentive production scheme;
• periods of annual leave, sick leave, maternity leave, paternity leave and holidays entitled and taken, together with details of payments made in respect of such periods;
• particulars of any other benefits provided under the contract of employment.
• period of notice required for termination of contract;
• date of termination of employment (if applicable).

Failure by the employer to include these requirements in the employment contract means that in the event of a dispute concerning one of these requirements the employee’s assertion of the contents of a contract would prevail unless the employer can produce evidence to rebut this.

 

Remuneration

In a contract of employment, the employee makes their personal service available to their employer and has duties of subordination and good faith to the employer. In return, the employer has an absolute duty to pay a wage or remuneration. Remuneration payable in money shall not be paid to an employee by way of promissory notes, vouchers, coupons or in any form other than legal tender.^[16]

An exception exists where it is customary in the industry or occupation for remuneration to be payable in kind.^[17] The employer must ensure that all remuneration is accompanied by a written statement displaying the name of the employer and employee, the sum of remuneration, period in respect of which it is paid including any bonus allowance, deductions and the net amount received by the employee.[18]

Conclusion

An employment contract is an essential part of the employment relationship.  It is important that both parties to the relationship ensure that the discussed aspects of the employment contract are complied with to provide protection and clarification for both parties.

 

If you need help drafting employee contracts or reviewing your contract of employment, at JPLP we have a team of legal professionals ready to assist you.

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1. Basson, Christianson, Dekker, Garbers, Le Roux, Mischke and Strydom (2009), ‘Essential Labour Law’, Paperback, 5th Edition, Labour Law Publications.
2. Section 12 (1) Labour Act (Chapter 28:01)
3. Section 4A (2) Labour Act, Section 14 of the Constitution of Zimbabwe.
4. Section 12(3) Labour Act
5. Section 12 (4) (a) Labour Act
6. Section 12(3) Labour Act
7. Section 2 Labour act
8. Section 2 Labour Act
9. Section 12(5) Labour act
10. Section 12 (4) Labour Act
11. Section 11 Labour Act
12. Section 11 (4) Labour Act
13. Section 21 of the Immigration Act
14. United Bottlers v Kaduya SC 34/06
15. Carthew Gabriel v Fox and Carney (Pvt) Ltd 1978 (1) SA 598 (RAD).
16. Section 12A Labour Act
17. Section 12A (2) Labour Act
18. Section 12A (5) Labour Act