Khumbo’s* employer wasn’t abiding by the law, and refused to give any of their workers employment contracts. The Department of Labour found out, and a compliance order was issued to force the company to give their workers employment contracts. But now the employer is angry, and has threatened to take away benefits that Khumbo has had for years – like his annual bonus, which he’s been getting for the last 18 years. Should he sign the employment contract, even though he doesn’t agree with it? What are his rights? We discuss what he can do.
Scorpion Legal Protection’s advice
By law (Basic Conditions of Employment Act – section 29), every employer must give employees a written particulars of employment letter or contract no later than the first day of employment. Some companies have the idea that “if it’s not in writing, then it doesn’t exist”, which just isn’t true. Even without a written contract, employees are still protected and covered by South Africa’s labour laws. The issue of bonuses can be a tricky one though, since there’s no law that specifically says employers have to pay employees a bonus.
Let’s say Khumbo had an employment contract, and in this contract it specifically states that his employer will pay him an annual bonus. If his employer then tried to take away his bonus, Khumbo could argue that the employer was trying to make ‘unilateral changes to his employment contract’, which is illegal. This means that the employer cannot take away Khumbo’s annual bonus without talking to him first. But since he does not currently have a written employment contract with his employer, this could be harder to argue if he wanted to take legal action. However, Khuma should not sign anything he’s not comfortable with – his employer can’t dismiss him if he refuses. If he does, then Khumba can go to the CCMA.
As a general rule, employees are not entitled to annual bonuses, unless it’s part of their contract. If the employer wants to stop paying bonuses where there was payment of bonuses previously, they need to consult with the employee. But if the bonus was not paid due to operational reasons – for example, the company is struggling financially and simply can’t afford to pay them – then it is allowed.
Tips:
- Even without an employment contract, you are still protected by SA’s labour laws and your employer can’t just do what he wants.
- Bonuses are not enforceable by law.
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* This is only basic advice and cannot be relied on solely. Names have been changed to protect identity.