There is a general principle in law – you cannot contract outside of the law. This applies equally to employment contracts, with the exception of a few items that can be agreed by collective agreement.
Even I, from time to time, am shocked with what I find in employment contracts. Shocked that the employee is happy to sign it, but more shocked with what the employer puts into these contracts to start with. And then the employer is upset to find that a particularly “dodgy” clause cannot be enforced!
I will elaborate by way of a few examples…
– the contract states “the employee will wear a uniform at all times, the cost of which will be deducted from the employee’s wages”.
==> The clause is illegal, because the employer must provide the uniform free of charge (under most circumstances)
– the contract states “the employee agrees that he/she is an independent contractor and that this agreement does not constitute an employment contract”.
==> The clause is pointless and often cannot be enforced. Employment status is determined by a set of rules contained in the LRA, regardless of what the contract says.
– the contract states “as a Manager, you are not entitled to be paid extra for overtime, public holidays or Sundays worked”.
==> The clause may be problematic. Just because an employee has the word “Manager” in his/her job title, does not automatically exempt him/her from those benefits. There are other factors that will determine those exemptions. Bottom line: each case will be judged on its own merit.
– the contract states “the employee acknowledges that any act of fraud or violence will result in immediate dismissal”.
==> Be careful. Not only can this not be enforced, but it could also, should a dispute go to CCMA, turn the Commissioner against the employer from the start.
There are endless examples like these.
The most important thing to remember is: just because the employee signs the contract, doesn’t mean that he/she will be bound by all the clauses in it.
Do it the right way. Get an expert to draft your contracts.