Jan Truter
Generally, an employee may not be dismissed for refusing to sign a contract of employment.
The reasons are, firstly, that it is not a legal requirement for employees to sign a contract of employment and, secondly, the absence of a contract does not nullify the verbal agreement of employment. But, are there circumstances where the employer can take stronger action? The case of Johannes Kgotso Mocheko vs Powa Props (Pty) Ltd dealt with the principles that would normally apply in a case where an employee refuses to sign a contract.
Here, the employee, Mr Mocheko was presented with a contract of employment after seven years’ employment as a cleaner. He refused to sign it for reasons that were not clear.
After having ignored two subsequent written warnings to sign the contract of employment, he was dismissed. In the dismissal letter, the employer expressed the view that Mr Mocheko had been employed illegally.
The CCMA Commissioner pointed out that the absence of a written agreement did not nullify the verbal agreement of employment and that the relationship existing between them was not illegal.
As the dismissal had been for an invalid reason, it was substantively unfair. Mr Mocheko was awarded 12 months’ remuneration as compensation.
In a more recent CCMA case of Mahlangu vs Footballers for Life (Pty)Ltd the outcome was different.
After concerns expressed by a sponsor for funding a private company, it was decided to convert the organisation to an NGO. New contracts between the NGO and all coaches were drafted. Mr Mahlangu refused to sign despite various requests and failed to respond to an invitation to raise any concerns. He was given notice of a disciplinary hearing for refusing to carry out an instruction, but failed to arrive without giving reasons.
Mr Mahlangu was found guilty and dismissed in his absence. In this case the Commissioner did not hesitate to find that the dismissal had been procedural and substantively fair.
What distinguishes the latter case from the former is that the signing of new contracts became an operational necessity for the employer in order to meet the needs of a sponsor. It was therefore not unreasonable to expect the employee to sign a new contract.
If the employee had any legitimate concerns, he could have engaged with the employer in order to resolve such concerns. He chose to repeatedly ignore the employer’s requests to sign the contract.
According to the Commissioner, this amounted to an act of insubordination which justified dismissal in this case.The Footballers for Life case involves a rather unusual set of circumstances. However, it does not negate the principles confirmed in the Powa Props case. So, if disciplinary action is inappropriate, what should an employer do in this instance?
It could be useful to make a point of discussing the terms and explaining to the employee that both the employer and employee benefit from the certainty provided by a written contract of employment.
If there are no areas of disagreement and the employee still refuses to sign the contract, it serves little purpose to attempt to compel the employee to sign unless there is a good operational reason.
The Basic Conditions of Employment Act does not require the parties to enter into a written contract of employment, but rather that written particulars of employment be provided.
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