Ivan Israelstam | Chief Executive | Labour Law Management Consulting | mail me |
In Bithrey vs Department of Health, Gauteng (Lex Info, 7 October 2024, Case number JR1478/22, Labour Court), Bithrey worked as a registrar. The employer appointed her to perform clinical work at one of its hospitals. It also required her to enroll at Pretoria University for a period of five years.
After four years, the employer informed Bithrey that her post was ending. They claimed the Health Professions Act prohibited employment beyond four years unless an approved extension was granted. In response, Bithrey filed an unfair dismissal dispute with the public health bargaining council.
The arbitrator ruled that a registrar’s post is temporary and intended for training purposes. The arbitrator also found Bithrey failed to prove dismissal because her appointment was not permanent. Furthermore, registrars must leave the post if they fail to complete their academic course within four years. By 31 December 2021, Bithrey had not finished her five-year course.
On review, the Labour Court rejected the employer’s claim that Bithrey’s employment ended by operation of law.
The court held that the employer created the issue by failing to draft a clear employment contract. It found the dismissal procedurally and substantively unfair. Consequently, the court ordered the employer to compensate Bithrey with eight months’ pay.
This case emphasises the importance of drafting clear and unambiguous employment contracts. It also highlights the risks of relying on legal technicalities like terminations based on operation of law.
The misuse of legal technicalities in employment disputes can lead to unfair outcomes, highlighting the importance of clear agreements. Employers are urged to provide their managers with very inexpensive training that allows the managers to achieve the necessary knowhow at times suitable to their very busy schedules.
Related FAQs: Employment contracts
Q: What is an employment contract?
A: An employment contract is a written agreement between an employer and an employee that outlines the terms and conditions of employment, including roles, responsibilities and rights.
Q: What are the essential clauses in South African employment contracts?
A: Essential clauses typically include terms of employment, work hours, notice period, confidentiality clause, dispute resolution processes and intellectual property rights.
Q: How can I resolve a dispute related to my employment contract?
A: Dispute resolution can be handled through mediation, arbitration, or through the Labour Court under the Labour Relations Act. It’s advisable to seek legal advice for guidance.
Q: What should I do if I want to terminate my employment contract?
A: If you wish to terminate your employment, you must provide notice as stipulated in your contract of employment. Ensure you understand the terms of termination to avoid legal consequences.
Q: Are confidentiality clauses important in employment contracts?
A: Yes, confidentiality clauses are crucial as they protect sensitive information related to the employer’s business and ensure that the employee does not disclose confidential information to third parties.
Q: What are the basic conditions of employment in South Africa?
A: The Basic Conditions of Employment Act outlines the minimum standards for working conditions, including working hours, overtime pay, leave entitlements and termination procedures.
Q: Can employment contracts include a clause about intellectual property?
A: Yes, an employment contract can include a clause regarding intellectual property, which ensures that any inventions or creations made during the course of employment are owned by the employer.
Q: What are the legal requirements for an employment agreement in South Africa?
A: An employment agreement must be in writing and must clearly define the terms and conditions of employment as per the legal requirements set out in the Basic Conditions of Employment Act.
Q: How do I ensure my employment contract is comprehensive?
A: To ensure your employment contract is comprehensive, include all relevant clauses such as confidentiality, dispute resolution, rights and obligations and other particulars of employment that protect both the employer and the employee.
