Question

Siwe’z Engineering is an aluminium extrusion plant specialising in the design and manufacturing of modular items used in shop fitting. The organisation is in the hands of the Green generation.

As the owners considered the employees to be family, the view from management was that the employment relationship was concluded of the basis of a handshake. Not a single employee has a written contract of employment.

The following general conditions apply to employees:

Hours of work 08:00 to 17:00

All employees take lunch between 13:00 and 13:30

Annual leave is taken during the company’s shutdown period, the last two weeks in December and the first 2 weeks in January. Leave days vary according to when the four weeks start and end. The leave period for 2021/2022 has scheduled for 18 December 2021 to 12 January 2022;

Sick leave is set at 10 days a calendar year set at 10 days a calendar year. Any sick days not taken in a year are forfeited;

Family responsibility leave is set at five days per calendar year. Any family responsibility days not taken in a year are forfeited;

Maternity leave is on full pay and is set at six months for one child only.

Maternity leave is set at six months for one child only. Employees who fall pregnant for a second time during their employment with the organisation are expected to resign;

Paternity leave is on full pay and is set at two weeks for one child only.

Assume the position of a newly appointed Human Resource Manager at Siwe’z Engineering and address the issues raised in the questions below.

QUESTIONS

The owners of the business are under the impression that as the employees had not signed contracts of employment; no such contract therefore existed between the employees and organisation.

Write memorandum to the owners explaining the following:

Whether or not a contract of employment existed?

Which of the conditions would be considered legal and which conditions not (Use the Basic Conditions of Employment Act 75 of 1997 (BCEA) (and any amendments) as the framework to your discussion? Identify the reason for the legality/illegality and propose a remedy where BCEA is not adhered to.

Answer 1

A contract of employment can still exist even without a written contract if there is an agreement between the employer and employee. Some of the general conditions in Siwe’z Engineering are legal while others do not comply with the BCEA. To adhere to the BCEA, written contracts should be provided, correct leave periods should be specified, and employees should not be required to resign in the case of a second pregnancy.

Step-by-step explanation:

When employees work for a business without signing a written contract, a contract of employment can still exist. A contract can be created through verbal agreements and the conduct of both parties. In this case, the owners' view that the employment relationship was based on a handshake can be seen as an agreement.

Regarding the general conditions, some conditions are legal and others are not according to the Basic Conditions of Employment Act (BCEA). The legal conditions include the standard hours of work, lunch break, and family responsibility leave. However, the conditions for annual leave, sick leave, maternity leave, and paternity leave do not comply with the BCEA.

In order to adhere to the BCEA requirements, the owners should provide written contracts to employees, specify the correct leave periods, and ensure that employees are not required to resign if they fall pregnant a second time during their employment.