Employment contracts: what the BCEA actually requires

Written particulars are not optional

Section 29 of the Basic Conditions of Employment Act requires every employer to give each employee written particulars of employment when they start work. That means, at minimum: the parties' names, the workplace, the job description, hours, pay and how it is calculated, leave entitlements, and notice periods. It does not have to be a fancy contract, but in practice a signed contract is how everyone meets the requirement - and how you prove what was agreed when a dispute lands at the CCMA. If there is nothing in writing, the commissioner tends to believe the employee's version.

The minimums your contract cannot undercut

A contract can offer more than the BCEA, never less. Any clause below these floors is simply unenforceable:

• Annual leave: 21 consecutive days per year on full pay (roughly 15 working days for a five-day week)
• Sick leave: 30 days per 36-month cycle for a five-day-week employee
• Maternity leave: 4 consecutive months
• Notice: 1 week in the first 6 months, 2 weeks between 6 and 12 months, 4 weeks after a year
• Ordinary hours: 45 hours a week, with overtime paid at 1.5 times the normal rate

If a sectoral determination or bargaining council agreement covers your industry, its conditions may be higher still. Check that before you finalise anything.

Probation myths

Probation is the most misunderstood clause in South African employment. It does not create a free-fire period where you can dismiss without reason or process. A probationary employee has full protection against unfair dismissal from day one. What probation does do is lower the bar slightly for performance dismissals: the Labour Relations Act's Code of Good Practice accepts less compelling reasons during probation, provided you still evaluated, gave feedback, and offered guidance or training. "Still on probation" is not a dismissal procedure. It is a performance-management framework with paperwork attached.

Fixed-term vs permanent

A fixed-term contract must be tied to a genuine reason: a project with an end date, a seasonal peak, maternity cover. For employees earning below the BCEA earnings threshold, section 198B of the LRA limits fixed-term contracts to 3 months unless the employer can justify a longer term - after that, the employee is deemed permanent. Rolling a fixed-term contract over repeatedly creates a reasonable expectation of renewal, and refusing to renew can then count as a dismissal. If the job is really permanent, contract it as permanent.

Clauses that do not hold up

• "No leave in the first year." Leave accrues from the start - you can require it to be taken at agreed times, but you cannot cancel the entitlement.
• "We may deduct losses from your salary." Deductions need the employee's written agreement for a specific debt, or a fair process under section 34 of the BCEA. A blanket clause is not enough.
• "Overtime is included in your salary." Only workable within strict limits, and never for employees below the earnings threshold without actual payment or paid time off at the overtime rate.
• "Either party may terminate without reason on notice." Notice deals with the contract; the LRA still requires a fair reason and a fair procedure for any dismissal.
• Unreasonably wide restraints of trade. Courts only enforce restraints that protect a real business interest and are reasonable in area and duration.

Getting it right cheaply

A proper contract does not need a law firm. It needs the section 29 particulars, the BCEA minimums respected, and clauses that will survive scrutiny. ProperSA's employment contract is R290, drafted for South African law, and delivered ready to sign. Single documents start from R190, and the Employer Admin pack at R1 250 covers the full paper trail an employer needs.

Frequently asked questions