Employers often ask questions regarding the guidelines to be followed when employees refuse to acknowledge receipt of any labour related document.
A labour related document can be regarded as contracts of employment, disciplinary code, company rules and policies, disciplinary procedure documents, retrenchment documents, incapacity procedure documents etc.
The most common practices will be discussed below:
- Contracts of employment
In normal circumstances, a contract of employment should be undersigned by both parties before the newly appointed employee commences work. When the employee refuses to sign the employment contract, the employer then should not appoint the employee whereby this refusal to sign raises a question regarding the employee’s commitment and integrity.
Note: It’s advisable to state in the Letter of Appointment that the appointment will only be finalized on condition that the employee undersigns the contract of employment.
Contracts of employment are also concluded when an employee already has some length of service without an existing written contract. It is usually in the last mentioned matter whereby an employee refuses to sign their employment contract when it’s suddenly introduced/handed to them after some period that the working relationship commenced.
In such instances, the employer must have an attendance register signed by the employee while the contents of the contract were explained to the employee, an opportunity was given to the employee to raise some questions and to scrutinize the employment contract (if they do not want to sign immediately).
Keep in mind that the verbal terms and conditions set between employer and employee when the employment relationship commenced, must be similar to those terms and conditions introduced in writing to avoid an issue of unilateral change of terms and conditions.
If the employee refuses to sign the employment contract in last mentioned example, a certificate of implementation must be issued confirming the implementation conducted in the employee’s mother tongue as well as the refusal for undersigning by the employee. The refusal to sign can also be brought under the attention of the Department of Labour.
- Disciplinary Code, Company Rules and Policies
The disciplinary code together with company rules and policies are not conditions of employment and therefore need not to be agreed upon. Such rules and policies can be unilaterally enforced by the employer if the employees were aware of such rules or could reasonably have been expected to be aware of such rules when the latter are contravened.
Therefore, the employee’s signature is not required for the company’s disciplinary code, rules and policies. The employer’s only burden of proof is the employee’s awareness of the rules (i.e. attendance register where the code, rules and policies were explained to the employee and copies of these documents were handed to him/her).
- Disciplinary procedure, Retrenchment and Incapacity documents
Disciplinary procedure documents include any type of warning, Notice of Disciplinary Hearing, Suspension (Pre-suspension and Suspension), as well as any sanction related document issued during the disciplinary hearing process.
When an employee refuses to sign any of above-mentioned documents, a witness must always be present, explaining the contents of the document to the employee and noting the following on the document itself: “The contents of this document were explained to the employee and he/she indicated that he/she understood. Furthermore, he/she refuses to sign/acknowledge receipt hereof. A copy of this document was handed to the employee.” The witness must then also sign the applicable document.
Above mentioned guidelines also applies to Retrenchment and Incapacity documents.
Frikkie van Tonder obtained a Bachelor of Commerce (B.Comm Law) degree in 2009 from the University of the Free State. In 2011, he obtained a Bachelor of Laws (LLB) degree from the University of the Free State and completed his articles of clerkship in 2012. In April 2012, he was admitted as an Attorney in die Free State High Court, Bloemfontein. After admission, he practised as an attorney for 2.5 years before joining SEESA Bloemfontein in June 2015 as a Labour legal advisor.