- The BCEA requires employers to provide employees with certain written particulars, even where the employment contract itself is verbal.
- Well-drafted contracts should go beyond the statutory minimum by addressing issues such as probation, fixed-term employment, restraints of trade, remote work, and performance standards.
- Most employment disputes arise from unclear or unwritten terms, making a comprehensive written contract one of the best forms of legal protection for both employers and employees.
Every employment relationship rests on a contract, whether it is in writing or not. The moment a person performs work under the direction and control of someone else, a contract exists. But when the terms are not written down, they become vulnerable to memory, interpretation, and conflict.
Most of the disputes I litigate start with the same sentence: “But that’s not what we agreed.”
Which is why I always recommend putting a contract in writing. It will not necessarily prevent conflict, but it will prevent confusion. And in South African law, even if the contract itself is verbal, certain terms must be provided to the employee in writing.
Employee or independent contractor?
An employee works under the employer’s direction, is paid, and forms part of the employer’s business. They are protected by the BCEA (Basic Conditions of Employment Act), the LRA (Labour Relations Act), and other labour statutes.
An independent contractor runs their own business, sets their own hours, invoices for services, and manages their own tax and business responsibilities. They may also work for multiple clients.
The distinction is not about what the contract calls the person—it is about the way the relationship functions in practice. If the relationship looks like employment, the law will treat it as employment, regardless of the label.
What the BCEA requires in writing
Section 29 of the BCEA sets out the minimum written particulars that every employer must provide to every employee. These are not optional; they are statutory requirements.
- Employer’s full details
- Employee’s job title or job description
- Place of work
- Start date
- Working hours and overtime arrangements
- Remuneration and payment intervals
- Leave entitlements
- Notice periods
- Disciplinary or grievance procedures (where applicable)
- Any applicable sectoral determination or collective agreement
If these particulars are missing, the employer is already non-compliant, even if the employment relationship is otherwise healthy.
What should be in writing (but often isn’t)
The BCEA sets out the minimum requirements, but in practice, the minimum is rarely enough. These are the clauses that should always be included in a written contract because they are the clauses that most frequently give rise to litigation:
- Probation terms, including duration, evaluation criteria, and extension provisions
- Fixed-term employment justification. This is required under section 198B of the LRA. Employers must tread carefully here. As highlighted by the Labour Appeal Court in Dladla v Motor Industries Bargaining Council (2026), if workplace conduct creates a reasonable expectation that a fixed-term contract will be renewed, simply relying on the contract’s expiry date will not protect the employer from an unfair dismissal claim.
- Confidentiality obligations
- Restraint of trade provisions. In early 2026, the Labour Appeal Court in the Backsports (Pty) Ltd matter clarified an important point for employers, confirming that a dismissed employee remains bound by a valid restraint of trade, even where the dismissal resulted from misconduct.
- Intellectual property ownership
- Remote working arrangements, including working hours, availability, equipment, and data security
- Performance standards
- Tools of trade, including laptops, mobile phones, vehicles, and data allowances
- Commission structures, including calculation methods, payment timing, and clawback provisions
- Overtime arrangements, including consent, rates of pay, and statutory limits
- Retirement age
If it can affect the employment relationship, it should be recorded in writing. Silence is where disputes usually begin.
The mistakes employers make
In my litigation practice, I see the same mistakes repeatedly:
- Copying and pasting contracts from the internet
- Contracts that contradict company policies
- Contracts that contradict the BCEA
- Contracts that do not reflect the employee’s actual role
- Contracts that are never updated
- Contracts that rely on “common sense”. Common sense is not a legal principle. If you want it enforced, write it down.
- What happens when it is not in the contract?
When a contract does not address an issue, the law fills the gap. If an employer applies unwritten policies unfairly, they may face significant legal exposure. In the 2026 Constitutional Court decision in Maleka v Boyce N.O., South Africa’s highest court re-examined the boundaries of constructive dismissal, illustrating how contractual ambiguity, coupled with hostile workplace management, can lead directly to costly litigation.
Courts and commissioners will generally default to the BCEA, the LRA, applicable sectoral determinations, principles of fairness, and the version of events that can be proved. Where ambiguity exists, it is usually interpreted against the party that drafted the contract—typically the employer.
A well-drafted contract is not a mere formality—it is the framework that protects both parties. A good contract:
- Protects employees by clearly defining their rights and entitlements
- Protects employers by clearly defining expectations and obligations
- Reduces disputes
- Supports HR processes
- Provides evidence when conflict arises
- Ensures compliance with the BCEA
- Creates stability and predictability
Checklist for employers
Employment contracts should answer the following questions:
- Who is being employed?
- To do what?
- For how long?
- At what rate of pay?
- Under what conditions?
- With what expectations?
- What happens if things go wrong?
If any of these questions cannot be answered from the contract, it is incomplete.
Conclusion
Employment relationships rarely break down because the law is unclear. More often, they break down because the contract is. The more precise the contract, the fewer the disputes and the stronger the employment relationship.
If you need to consult or have a question on these matters, email ann-suhet@vdm.law or phone 011 394 1606 Ext 105. Questions may also be sent to expert@conviction.co.za
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