STRICTLY PRIVATE AND CONFIDENTIAL
TO BE OPENED BY ADDRESSEE ONLY
Mr. Caesar Flickerman
Pretoria, South Africa
To whom it may concern
PERMANENT OFFER OF EMPLOYMENT
I have the pleasure of offering you (“the employee”) a position with Fixing Flats (“the company”) as Tyre Technician in our Pretoria branch. The employee will report directly to Seneca Crane (“the director”) and will assume his/her duties on 10/04/2018.
Please find attached a brief description of the responsibilities within the company. The employee’s key performance areas will be discussed and decided on once he/she has assumed his/her position.
The main terms of employment will be as follows:
RENUMERATION AND BENEFITS
The company’s remuneration structure for general staff comprises the following elements:
Other compulsory benefits;
Voluntary benefits; and
Other terms and conditions of employment.
This package allows the company to provide for competitive remuneration based on individual performance and allowing for employees to receive bonus income and benefits.
The employee will receive remuneration starting at R201 566.45 per annum. The employee will thus receive R16 797. 20 subject to the deductions listed below per month, deposited into his/her back account on the 25th (twenty-fifth) day of each month.
The company reserves the rights to add, amend or delete the following benefits:
The employee will qualify for a pensionable 13th cheque payable in December or pro-rated as part of his/her monthly salary.
Retirement fund membership
Membership of the Fixing Flats Retirement Fund (“the retirement fund”) is compulsory in terms of the rules of the retirement fund.
Contributions will be made monthly by both the employee and the company. The company will contribute 10% (ten percent) and the employee shall contribute 7.5% (seven-point five percent) via the payroll system on a monthly basis.
The employee default pensionable earnings ratio will be calculated as 80% (eighty percent) of his/her general package. He/she may elect to increase or decrease this ratio by 10% (ten percent). This ratio will then be used to calculate the contributions from both the company and the employee.
Death and disability benefits will further be based on the abovementioned chosen ratio.
This is the amount of the general package remaining of the company’s contribution to the retirement fund after each deduction, the 13th cheque and any travel allowance applicable. Tax will be calculated on the residue and certain benefits as per the Income Tax Act.
The company is not accountable for any changes in taxation legislation or other practice that may affect the cash flow or guaranteed package of the employees.
The employee’s net salary, after deductions for tax, UIF, the retirement fund, applicable medical aid, the Family Funeral Benefit and other statutory or agreed deductions, will be paid into his/her personal account on the 25th (twenty-fifth) day of each month, unless this day should fall on Saturday or Sunday in which case it will be paid on the Friday preceding this.
When his/her employment at the company is terminated, for any reason, his/her final salary will be paid on his/her last working day.
Should he/she commence his/her employment on or after the 25th (twenty-fifth) day of the month, his/her salary will be paid the following month on the 25th (twenty-fifth) day as stated above. A portion for the days worked in the previous month shall be calculated and added to that salary accordingly.
Other compulsory benefits
Medical aid scheme membership;
Family funeral benefit scheme;
Group personal accident scheme.
Medical aid scheme membership
Membership of MiraculousMed, the medical aid scheme approved by the company, is compulsory in terms of the rules of the scheme, unless the employee can submit annual proof by way of a valid membership document confirming that the employee is a dependant on their spouse’s medical aid scheme. Should this no longer be the position in the future, it is mandatory that the employee inform the company and join the MiraculousMed scheme.
Contributions shall be made by both the employee and the company. A portion of the contribution made by the company is regarded as a taxable benefit and the employee will be taxed in accordance with the Income Tax Act.
These contributions will be made on a monthly basis via payroll deductions.
When the employee’s employment at the company is terminated, for any reason, the company’s contribution to the above stated will cease. The employee may choose to remain a member of MiraculousMed but he/she shall bear the full cost of the scheme.
More information regarding the MiraculousMed scheme may be found on www.miraculousmed.co.za or by contacting the service centre on 082 009 232 4.
The company reserves the right to change the medical aid provider, scheme, or basis of participation for employees.
Family funeral benefit scheme
Participation in the Family funeral benefit scheme is compulsory. This scheme provides for readily available cash for employees or their families in the event of the death of the employee, his/her spouse, or his/her child.
Contributions shall be made by both the employee and the company. These contributions will be made on a monthly basis via payroll deductions.
When the employee’s employment at the company is terminated, for any reason, the employee’s membership of the scheme will continue for up to three weeks after the final salary is paid and will thereafter cease indefinitely.
Group personal accident scheme
All permanent employees at the company will be covered, from the date of commencement of their employment until the date of the payment of the final salary, by insurance under the Any Thing Can Happen group personal scheme.
This cost is covered entirely by the company and is regarded as a taxable benefit.
See the details of the insurance on www.anythingcanhappen/insurance/cover.co.za or call the service centre on 087 667 8767 8.
Performance related bonuses.
If the employee is required for any reason to use his/her own vehicle for business (excluding personal transport to and from work on a day to day basis) he/she will automatically be granted a travel allowance to cover the entirety of these costs.
The travel allowance will be calculated using the following formula:
X = Distance in kilometres
Y = Cost of fuel per litre
Z = Fuel consumption per kilometre
x ÷100 =mm ×z=n n ×y=AA = Total amount deposited
Job related allowances
The employee may be eligible for certain allowances, at the discretion of the company. These will be discussed and decided on after employment commences.
Performance-related bonus payments
The employee may be eligible for performance-related bonuses. These are determined at the discretion of the company.
Funeral benefit scheme for parents and/or parents-in-law;
Spouse’s life cover;
Dread disease cover.
Funeral benefit scheme for parents and/or parents-in-law
The employee may choose to participate in a funeral benefit scheme which provides a benefit of up to R10 000 (ten thousand Rand) in the event of the death of a parent or parent-in-law.
The monthly contribution is determined in accordance with the age and gender of each parent.
Should the employee wish to take part in this benefit he/she must inform the company of such decision within 3 (three) months of the commencement of his/her employment; or in the case of his/her parents-in-law within 3 (three) months of his/her marriage.
Spouse’s life cover
The employee may choose to take out life cover for their spouse (only one spouse) at a rate determined by the spouse’s age and gender.
The spouse and employee must both be under the age of 65 in order to take part in this benefit. Spouses married under any legally recognised union may take part in this benefit.
No medical examination will be necessary.
Should the employee wish to take part in this benefit he/she must inform the company of such decision within 3 (three) months of the commencement of his/her employment; or within 3 (three) months of his/her marriage.
Dread disease cover
This optional benefit provides a lump sum to an employee upon diagnosis of a life altering disease.
Any permanent employee under the age of 65 may choose to take part in this benefit.
Should the employee wish to take part in this benefit he/she must inform the company of such decision within 3 (three) months of the commencement of his/her employment.
Other possible deductions
A deduction may be made to reimburse the company if loss or damage occurred in the course of the employees work and was due to the fault, whether intentional or negligent, of the employee.
A deduction may also be made in respects of a debt owed to the company by way of an agreement.
A deduction may be made without the employees consent in certain circumstances. These circumstances are, but are not limited to; the deduction is required by law or; a court order or; an arbitration award or; by means of a collective agreement.
A rebuttable presumption shall exist that the employee is at fault and the burden of proof lies with the employee.
The exact amount, no more and no less, of the loss or damage shall be deducted from the employee’s salary 30 (thirty) days after the loss or damage occurs.
Should the loss or damage equate to more than one-quarter of the employee’s monthly salary, the deduction shall be taken out periodically every month until the amount is covered.
The employee will be required to work 45 (forty-five) hours a week. This is averaged on 9 (nine) hours per day. Hours of work may be scheduled up to 5 (five) days of the week, over any days of the week (Monday to Friday).
Should the employee be required to work in excess of the 45 (forty-five) hours a week, which is averaged on 9 (nine) hours a day, he/she will be paid overtime in one of the following ways: no less than one and a half times of his/her ordinary wage; by agreement he/she may receive time off in exchange for the overtime worked.
In respects of work during public holidays the employee will be entitled to double his/her ordinary pay or time off in exchange for the work, as indicated above.
2.3 The employee will be entitled to a meal interval up to 1 (one) continuous hour after 5 (five) hours of work. This can potentially be altered by a written agreement between the employee and employer if the employee’s working hours are compressed to less than 6 (six) hours a day.
PLACE OF WORK
The employee will work at the address 826 Rose Street Pretoria, South Africa. He/she may be deployed from time to time at any of the points of representation in the Region.
The employee will be provided with the relevant clothing in accordance with the policy of the company.
The employee will qualify for 21 (twenty-one) calendar days’ vacation leave a year which accrues at 1.75 (one point seven five) calendar days per month. The leave cycle will be a calendar year (from 01 January to 31 December of each year).
These days must be taken no later than 6 (six) months after the end of the leave cycle in which they accrue. By signing this agreement, the employee concurs that any statutory leave not taken in this period will be forfeited.
Vacation leave must be applied for at least 1 (one) week in advance and is subject to explicit approval. Fixing Flats is entitled to decline vacation leave under certain circumstances on account of operational requirements.
Any leave taken during the cycle will subsequently reduce the annual leave entitlement accordingly.
An employee is entitled to at least four months maternity leave, which may commence at any time from 4 (four) weeks before the expected date of birth of the child or from a date that a medical practitioner or midwife certifies that it is necessary either for the health of the employee or the unborn child.
There is no obligation on the company to pay an employee their remuneration during any period of maternity leave, however employees may claim unemployment benefits in this regard from the Unemployment Insurance Fund (UIF).
Permanent employees who legally adopt children up to the age of 17 (Seventeen) years will be entitled to the same paid maternity leave benefits.
Maternity leave does not solely apply to women and can also be extended to men in certain circumstances such as surrogacy.
The employee is entitled to 36 (thirty-six) working days paid sick leave in the event that sickness or injury requires him/her to be absent from work.
During the first 6 (six) months of service the employee will qualify for 1 (one) day’s paid sick leave for every 26 (twenty-six) days worked. Any further paid sick leave is discretionary and will only be granted with the written consent of Fixing Flats.
Additionally, if the employee is absent from work for more than 2 (two) consecutive days as a result of illness, he/she must produce a medical certificate which is signed by a registered medical practitioner of a professional council, stating that he/she was unable to attend work and fulfil his/her duties for the duration of his/her absence. If no medical certificate is submitted or it is from an invalid source, the employee shall not be entitled to be paid for the period of sick leave during which he/she was absent.
FAMILY RESPONSIBILITY LEAVE
Employees who have completed at least 4 (four) months service and worked for at least 4 (four) days per week for Fixing Flats are entitled to 3 (three) days minimum of family responsibility leave per annual leave cycle.
This leave is taken when the employees:
Child is born or is sick and/or
Parents, adoptive parents, grandparents, spouse, grandchild, sibling, child or adopted child dies.
Notice of a death or funeral certificate must be provided before payment of the leave is received.
OUTSIDE EMPLOYMENT INTERESTS
Restraint against unauthorised disclosure or use of informationThe Employee shall not directly or indirectly use for any reason whatsoever, and shall keep confidential and shall not disclose, any Confidential Information of the company or any person or organization in business with the company, other than persons or organisations connected with the company who are required to have that information.
The Employee shall not, for any reason whatsoever, persuade or encourage any employee, director, customer or other related person of the Company to share, any Confidential Information of the company or any person or organization in business with the company, other than persons or organisations connected with the company who are required to have that information.
The above clauses (9.1.1 and 9.1.2) shall apply while the Employee is employed by the company and in perpetuity thereafter, unless such information becomes public knowledge through the company’s choosing or as in line with any law.
Should the employee be uncertain as to whether any information in particular is confidential he may request in the answer to this from the office of the company by use of the email [email protected]
The employee shall not remove, make notes on or make copies of any of the company’s documents, except with written permission from the office of the company by use of the email [email protected] Any such document removed must be returned within 24 hours.
Restraint on pirating employees, directors, and independent contractors
The Employee shall not for a period of 24 (twenty-four) months after the termination of his/her employment with the company, for any reason whatsoever persuade any person related to the company to become employed by or work in association with any business which is in competition with any services provided by the company.
Restraint on prejudicial dealings with Customers and SuppliersThe employee shall not for a period of 24 (twenty-four) months after the termination of his/her employment with the company, for any reason whatsoever persuade any customer or supplier of the company to cease supplying to or purchasing from the company any goods or services.
The above clause (9.3.1) shall not apply to any supplier or customer with whom the employee could not reasonably have known was connected to the company. The onus of proof shall rest on the employee in such a case. Any such person shall rebuttably be presumed to have been persuaded by the employee.
Restraint on employmentThe employee shall not for a period of 24 (twenty-four) months after the termination of his/her employment with the company, for any reason whatsoever compete directly or indirectly with the company within the same province or in any other province in which the company conducts business.
The employee will be considered to be competing with the company if he/she undertakes any form of employment or partnership with another business which conducts any services which the company supplies.
CODE OF ETHICS
10.1 The employee will be expected, at all time, to conduct him/herself in accordance with the provisions of Code of Ethics of the company, which can be found on the company’s website www.fixingflats.com or by visiting the office of any branch to receive a copy. The employee is expected to familiarise him/herself with the Code of Ethics.
11.1 Any changes to terms of employment that are agreed with NUMSA (The National Union of Metalworkers of South Africa), the union recognised by the company, will apply to the employee.
There is no legal requirement for the employer to host a year end function. Therefore, there will only be a year-end function for all employees if there are funds left over for this purpose.
TERMINATON OF EMPLOYMENT
If either the employee or Fixing Flats wishes to terminate the contract of employment a notice of intention matching the below requirement must be given to the other party.
If an employee has been employed for:
A period of 6 (six) months or less, a notice not less than 1 (one) week must be worked;
A period greater than 6 (six) months but less than 1 (one) year, a notice not less than 2 (two) weeks must be worked;
A period greater than 1 (one) year, a notice not less than 4 (four) weeks must be worked.
At the time of termination of the employment the employee shall immediately deliver to Fixing Flats all its assets in the employee’s possession, including motor vehicles, records, documents, letters and things alike.
Should the employee be dismissed due to the operational requirements of Fixing Flats, he/she is entitled to a severance pay which is equal to at least 1 (one) weeks remuneration for each completed year of continuous service. This is subject to the offer of alternative employment by the employer, unreasonable failure to accept this leads to a forfeiture of severance pay.
13.5 All termination of employment must be given in written format.
13.1 All employees agree to retire at the age of 65(sixty-five). This contract will automatically terminate at the end of the year of which the employee turns 65(sixty-five).
13.2 Provision is also made in the pension fund rules for employees who wish to retire earlier.
TERMS OF OFFER
Please note that this contract constitutes the principles of employment between the employee and the company. It is in the employee’s best interests to read it carefully and to contact the director (Seneca Crane) on any queries he/she may have.
The employee’s signature shall indicate his/her acceptance of this offer and agreement to all of the terms. Please sign below and initial each page and then return this contract to the director or the office by the 09/04/2018, after which the offer expires.
The employment is subject to reference checks and compliance with the company’s standard requirements for employment in the specific field.
Please submit with the signed contract, proof of personal tax registration number, personal banking details, home address, phone number, car registration and identity number. Note that these are legal requirements in terms of the Income Tax Act and the company’s employment policy.
Should the employee require any further information please find it on fixingflat.co.za or contact the director on [email protected] or 087 554 6727.
;Authorised signatory; Director
I have read, understand and accept the terms and conditions, and accept the company’s offer of employment as set out above.
Signed: ……………………….. (Employee)
Skye Comley 15059392 and Shaaheen Omar 15042431
Please find advisory opinion to client below
Our ref: Employment contract/CraneYour ref: FixingFlatsEC
03 April 2018
Attention: Mr Seneca Crane
By email: [email protected]
Dear Mr Crane
Explanation of Employment Contract
We refer you to the employment contract that was drafted by us for Fixing Flats.
This letter serves as an explanation for the relevant clauses that we have either added, amended or omitted from the employment contract.
Please note that the above is in relation to the statutory requirements found within the Basic Conditions of Employment Act 75 of 1997.
We refer you to clause 1 titled ‘Remuneration and Benefits’. The employees will earn an annual salary of R201 566.45.
In accordance with section 32 of the Basic Conditions of Employment Act remuneration must be given either daily, weekly or monthly. Therefore, we have included a monthly salary of R16 797. 20 subject to the statutory and optional deductions listed, which reflects your annual salary of R201 566. 45.
We have further included the ways that your company allows for additional profits to be made, as per your company rules.
We refer you to the clauses 1.2 to 1.4 which deal with deductions in the employee’s salary. You instructed us to include statutory deductions that can be made from the remuneration of the employees without the consent of the employees
In accordance with section 34 of the Basic Conditions of Employment Act deductions (unless statutory) may not be taken from the employee without his/her consent.
However, we have included all statutory deductions such as the Unemployment Insurance Fund (UIF) deduction in the contract and these may be taken without specific permission.
We refer you to clause 1.5 which handles deductions for money owed by the employee.
In accordance with Section 34(2) of the Basic Conditions of Employment Act an employer may not make any deductions from an employee’s remuneration unless agreed upon in respect of a debt or the deduction is permitted by law, a collective agreement, a court order or an arbitration award. If for the above reasons consent by the employee is not required.
When money is owed to the employer by the employee a deduction may be made to reimburse the company if loss or damage occurred in the course of the employees work and was due to the fault, whether intentional or negligent, of the employee.
However no more than one-quarter of the employee’s salary may be deducted for this purpose, therefore 40% of the employee’s salary cannot be taken out.
A maximum of one-quarter of the salary may be taken out monthly until such amount of loss or damage (and no more) has been paid back.
Further the employee must first be given the time and ability to disprove his fault in the matter.
We refer you to clause 2 dealing with ‘Working Hours’. You instructed us to include the ordinary working hours as 47.5 (Forty-Seven point Five).
In terms of the Basic Conditions of Employment Act an employer may not require an employee to work for a period that exceeds 45 hours in any week and 9 hours a day if the employee works for a period of 5 days or less in a week, or 8 hours in a day if the employee works for a period greater 5 days.
If the employee’s duty is to assist members of the public an addition of 15 minutes a day which does not exceed 60 minutes a week may be granted in order for the employee to continue ordinary duties after work hours.
The above information can be found in Section 9(2) of the Basic Conditions of Employment Act.
In addition, this may be waivered if the annual salary of the employees exceeds R205 433.30 (two hundred and five thousand four hundred and thirty-three Rand and thirty Cents); or
If an employee:
Is a senior Manager;
Regulates their own hours of work;
Is a sales employee whose duties require them to travel to the premises of customers; and
Has worked less than 24 hours a month.
Then in terms of Section 6(1) of the Basic Conditions of Employment Act the provisions regulating working hours in the Legislation do not apply.
Therefore, your employees would be working for 9.5 hours a day and in accordance with Section 9(1) of the Basic Conditions of Employment Act it will be invalid.
We refer you to clause 2.2 which deals with overtime work. You instructed us to exclude any overtime pay for your employees due to their inability to complete their work during their ordinary working hours.
Section 10(2) of the Basic Conditions of Employment Act stipulates that an employee is entitled to be paid no less than one and a half times of their ordinary wage.
The stipulation to be paid may be altered and an agreement between you and the employee can regulate whether the employee should be paid in ‘time off’ instead.
However, there is a possibility to extend the general overtime hours, which is 10 hours to a possible 15 hours by means of a collective agreement. This cannot last for more than 2 months in any 12-month period.
In addition, the need for pay on public holidays as well as work on Sundays has to be included within the contract. In terms of Sections 16 and 18 of the Basic Conditions of Employment Act an employee is entitled to be paid double their ordinary pay.
Based on the above it is required to include the general 10-hour overtime rate provided for above within the contract to comply with the statutory requirement.
A possible solution to avoid paying overtime is to include a sign on sheet which obliges employees to provide reasons and receive authorisation from a manager before the overtime is granted.
In conjunction with the above, negotiating for time off rather than overtime pay is an option.
We refer you to clause 2.3 which deals with meal times. You instructed us to limit the meal interval for employees to 25 minutes per day.
In accordance with Section 14 of the Basic Conditions of Employment Act an employee is entitled to a meal interval of 1 hour in a continuous period for every 5 hours worked.
This can be limited to 30 minutes or completely removed by agreement subject to the employee working less than 6 hours a day.
This does not seem to be a possibility due to the working hours of the employees as indicated above.
Therefore, should you decide to regulate this, we suggest an agreement in writing with your employees to reduce the hours to 30 minutes rather than the full 60 minutes.
We refer you to clause 5 headed ‘Vacation Leave’. You instructed us that the leave period each employee will be entitled to is 1 (one) days leave for every 18 (eighteen) days worked. This will expire 3 months after a completed leave cycle of 12 months.
In accordance with Section 20(2) of the Basic Conditions of Employment Act every employee is entitled to no less than 21 consecutive days leave and must receive full remuneration.
In accordance with Section 20(2)(b) of the Basic Conditions of Employment Act allows for an agreement between you and your employees which allows for 1 days of leave for every 17 days worked by the employee.
In accordance with Section 40(b) of the Basic Conditions of Employment Act employees are entitled to remuneration for any period of leave which accrued but was not taken during the previous leave cycle on termination.
This can be regulated by an agreement and parties to the contract may forfeiture leave which they have not taken.
Therefore the 1 days leave for every 18 days worked has to be changed to 1 days leave for every 17 days worked, to be in compliance with the Act.
We refer you to clause 6 titled ‘Maternity Leave’.
An employee is entitled to at least four months maternity leave, which may commence at any time from 4 weeks before the expected date of birth of the child, or from a date that a medical practitioner or midwife certifies is necessary either for the health of the employee or the unborn child. This is found in Section 25 of the Act.
The Act does not impose any obligation on employers to pay an employee their remuneration during any period of maternity leave.
Permanent employees who legally adopt children up to the age of 17 years will be entitled to the same paid maternity leave benefits.
Additionally, maternity leave does not solely apply to women and can also be extended to men in certain circumstances. In the case of MIA v State Information Technology Agency (Pty) Ltd (2015) 38 ILJ 1905 (LC) it was held that an employer cannot discriminate against a male employee who has entered into a surrogacy agreement.
Please note that in terms of the Unemployment Insurance Act employees are entitled to a claim for maternity leave, which comes from their contributions to the Unemployment Insurance Fund.
We refer you to clause 7 titled ‘Sick Leave’. You instructed us that the sick leave period that the employees would be entitled to is 36 days sick leave for a cycle period of 3 years.
This clause complies with Section 22 of the Basic Conditions of Employment Act.
However, an additional condition has been added to comply fully with the legislation.
During the first 6 months of service the employee will qualify for 1 day’s paid sick leave for every 26 days worked.
Furthermore, if the employee is absent from work for more than 2 days as a result of illness, the employee should produce a medical certificate stipulating that they were unable to work for the duration of their absence.
In terms of the Act the certificate must be produced by a registered professional council recognised by an Act of Parliament. However, in terms of various case law such as Kievits kroon country Estate (Pty) Ltd v Mmoledi and others the courts are inclined to accept certificates produced by traditional healers or doctors who act in good faith.
We refer you to clause 8 which is titled ‘Family Responsibility Leave’.
Employees who have completed at least 4 months service and worked for at least 4 days per week for Fixing Flats are entitled to 3 days minimum of family responsibility leave per annual leave cycle.
This leave is taken when the employee’s:
Child is born or is sick; and/or
Parents, adoptive parents, grandparents, spouse, grandchild, sibling, child or adopted child dies.
Notice of a death or funeral certificate must be provided before payment of the leave is received.
We refer you to clause 9 headed ‘Outside Employment Interests’. You instructed us to include a restraint of trade agreement that will limit an employee not to work in the same province as your client for a period of 10 years after the employment relationship has come to an end between the parties.
The court is unlikely to find a restraint of trade, which prohibits any form of work in the same province as your company for ten years by the former employee, justifiable, as was shown in cases such as Reddy v Siemens Telecommunications.
In these situations, the court will be required to weigh up the interests of the company and its ability to protect its interests with those of the employee and his/her ability to provide for themselves and their rights to freedom, dignity and equality.
We have therefore included a restraint of trade that lasts for two years, which prohibits the employee from working for any company that conducts the same services as yours and which further prevents him/her from pirating any suppliers, employee or clients from the company for any reason whatsoever.
Also included is a restraint against sharing any documents or information belonging to the company without permission to do so.
Moreover, should the employee breach any of these agreements the contract includes a rebuttable presumption that the employee is guilty of a breach of these clauses and the burden to disprove this lies with him.
We refer you to clause 12 regarding ‘Year-End Function’. You instructed us to include that there will only be a year-end function for all employees if there are funds for same.
There is no legal requirement for any employer to host a year end function. This has been included in the contract for clarity sake, by stating there shall only be such an event if there are funds left over for this specific reason.
Please note however that should you wish to host a year end function all employees must be invited, as to only invite some would constitute unfair discrimination against the others, as is portrayed in the Labour Relations Act. Therefore, should funds not allow for an all-inclusive function, you should refrain from having any function at all.
We refer you to clause 13 headed ‘Termination of Employment’. You instructed us that employees must work a notice period of 1 month at the termination of the contract, irrespective of the employment period.
In accordance with section 37 of the Basic Conditions of Employment Act there are certain notice periods that have to be complied with, which are based on the period of employment of the employee in question.
If an employee has been employed for:
A period of 6 months or less, a notice of not less than 1 week must be worked;
A period greater than 6 months but less than 1 year, a notice of not less than 2 weeks must be worked;
A period greater than 1 year, a notice of not less than 4 weeks must be worked.
The final clause to be noted is clause 14 regarding ‘Retirement’.
The Basic Conditions of Employment Act does not prescribe a specific age at which an employee must retire.
Further it states in section 6 that the dismissal of an employee based on his/her age may be seen as discrimination unless the employer can show that being a certain age is an inherent requirement for the job at hand.
Section 187(1)(f) of the Labour Relations Act also states that the dismissal of an employee based on his/her age will be automatically unfair.
However according to section 187(2)(b), to dismiss an employee based on age is fair if the employee has reached the normal or agreed retirement for persons employed in that capacity. Rubin Sportswear v SA Clothing ; Textile Workers Union and others clarifies that this section provides us with two options for a retirement age- one agreed on by the employee and employer; or one that is general to the job description.
Thus, we have included a retirement age of 65 as it is both the general retirement age and one which will be agreed upon by the employee in terms of the contract.
We have further added various numerous of clauses which are prescribed by the legislation mentioned above.
Please do inform us if there is any other clause that you require to be added to this contract
Per Shaaheen Omar and Skye Comley.
405 Johannesburg 0001
Please find contract above.