Taryn Strugnell of Labour Watch says before you even begin to draft a contract of employment, ask yourself these four important questions:
For the purposes of this article, we're going to explore the last question on statutory rights. And the bottom line is:
You SHOULD NOT repeat statutory rights in employment contracts
The Labour Law for Managers Loose Leaf Service explains that your employee has certain statutory rights arising from, for example, the Labour Relations Act (LRA) and the Employment Equity Act (EEA), irrespective of the terms of your employment contract with him.
And you need to be careful not to give your employee contractual rights on issues for which he already has statutory rights.
The danger with this is that, if, for example, the law changes, you won't be able to take advantage of changes in the law because you'll be bound by the contract.
You'll also be giving your employee an additional basis on which to sue you. In other words, he'll be able to sue you for breach of contract as well as on the basis of his statutory rights, warns the Loose Leaf Service. And it could give him the right to sue you in different courts too.
Here's a practical example of why you must avoid repeating statutory rights in employment contracts
The LRA provides that termination of an employee's services must be fair. So there's no need to insert a clause in your contract of employment that says the termination of the contract will be fair, as the LRA has already covered this.
If you include such a provision, you'll be giving your employee an additional contractual right to fairness over and above his statutory rights.
Knowing whether or not to repeat statutory rights in employment contracts will help ensure you draft watertight employment contracts.
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