LLexiSA

Recruitment & Appointing

Writing a Compliant Employment Contract

Section 29 of the Basic Conditions of Employment Act 75 of 1997 (BCEA) requires employers to give employees written particulars of employment — in practice, a full contract is the safer route, since a missing or vague term becomes the employee's word against yours in a dispute. A well-drafted contract is also your strongest procedural-fairness evidence later: notice periods, probation terms and disciplinary rules only bind an employee if they were actually communicated.

Key facts

  • BCEA s 29 sets a minimum list of written particulars — parties, start date, job title/duties, remuneration, hours, leave, notice period — that must be given no later than the first day of employment.
  • A contract cannot validly waive statutory minimums (BCEA leave, notice, overtime pay) — such clauses are void even if the employee signs them.
  • Probation must be for a reasonable period stated in the contract; open-ended or excessively long probation is itself unfair (Code of Good Practice: Dismissal, item 8).
  • Restraint of trade, confidentiality and IP-assignment clauses are enforceable if reasonable, but must be specific — vague or overly broad restraints are often struck down or narrowed by a court.
  • Keep a signed copy on file — in a later CCMA dispute, the employer carries the onus of proving the terms that applied (LRA s 192(2)).

The law that applies

  • Basic Conditions of Employment Act 75 of 1997 — s 29 (written particulars), ss 9–19 (hours), ss 20–27 (leave), ss 37–41 (notice)
  • LRA Code of Good Practice: Dismissal (Schedule 8) — item 8 (probation)

Leading cases

Pretoria Society for the Care of the Retarded v Loots (1997) 18 ILJ 981 (LAC)

Terms an employer wants to rely on — including probation and notice terms — must actually have been communicated to the employee, not merely exist in an unsigned document.

Practical steps

  1. Use a written contract for every employee, signed before or on the first day of work.
  2. Include all BCEA s 29 particulars — don't rely on a verbal understanding for pay, hours or leave.
  3. State a specific, reasonable probation period and how it will be assessed.
  4. Keep signed copies on file for the duration of employment plus at least three years after termination.
  5. Review template contracts periodically — labour legislation and sectoral determinations change.

Frequently asked questions

Do I have to give every employee a full written contract, or just the BCEA particulars?

The BCEA only requires the listed particulars, but a full signed contract is strongly recommended — it's your primary evidence in any later dispute over what was agreed, and lets you set out disciplinary rules, probation terms and restraints properly.

Can I put a clause in the contract saying I can dismiss without notice for any reason?

No. Notice periods are a BCEA minimum (s 37) and dismissal must still be substantively and procedurally fair under the LRA regardless of what the contract says — you cannot contract out of these protections.

How long can a probation period be?

The BCEA doesn't fix a maximum, but the Code of Good Practice requires it be reasonable given the role's seniority and the time needed to assess performance — three to six months is typical for most roles; open-ended probation is itself a red flag in a dispute.

Have a specific employee situation?

Ask Chat to Lex. It will take your specific facts and give you a cited assessment — not just the general position above — free.

Ask about writing a compliant employment contract

This guide is legal information, not legal advice, and may not reflect amendments after its last review. For advice on your specific circumstances, consult a practising attorney or labour law specialist.