O p o o Beware f nasty sur rises in y ur new c ntract

rude awakening.

People waiting to start a new job fall under the statutory definition of “employee”. Case law does, however, require that a contract of employment must have been concluded before employment commences.

Without elaborating on when a contract of employment has been made, it’s clear that a written contract or letter of appointment should exist. Oral or documentary evidence could also suffice.

For example, oral evidence on the existence and details of a job of- cluded in the written contract of employment or a restraint of trade provision appears.

The basic remuneration is less than was advertised or requested or envisaged and agreed to.

The sales commission structure explained during the interview now has a few twists and turns. Often the commission percentage is set lower or the sales target becomes unreasonable.

A job offer made orally or in writing is withdrawn after the employee has resigned and before they start the new job.

The time of year in which annual leave must be taken was not discussed and is found to be unsuitable – for example, leave may not be taken over the December-January period.

The 13th cheque or performance bonus or share option scheme has fairly onerous criteria, making it not so easily attainable.

Lately we have seen employers suddenly wishing to appoint a new employee first on a three-month fixed contract, or as an independent contractor, and not as an employee at all.

For employees, legal-technical avenues are available to deal with these sorts of situations. The legal approach will depend on the circumstances of each case.

Having overcome the hurdle of proving the job offer, aggrieved em- ployees have a number of options for dealing with their dispute, depending upon the circumstances.

For example, an aggrieved employee could accept the company’s repudiation of its contract, resign and claim constructive dismissal. As in most constructive dismissal cases, employees shouldn’t resign before having brought their dissatisfaction to their employer’s attention, preferably in writing, and giving the employer an opportunity to remedy the situation.

Or an aggrieved employee could accept the terms he or she agrees with and refuse to accept the changes the employer has initiated, declaring a dispute, such as an unfair labour practice, based on the “unfair conduct by the employer relating to the provision of benefits”.

Employers may then dismiss the employee.

In such circumstances, employers frequently err procedurally, as well as in having a substantively fair reason to dismiss. This merely leads to another unfair dismissal case law statistic.

To eliminate misunderstanding, employers and employees are each advised to regulate their contractual expectations and terms, in detail and in writing, before the employee resigns from their old job.

Pierre Marais is with the Labour Law Group. Visit www.labourlawchambers.co.za.