Employment Agreements: Agree Before you Disagree
As with many (almost all) legal documents, the following adage rings true: A contract is written when everybody agrees, but a contract is read when everybody disagrees. This is why it is so important to have a discussion with any new employer or employee before work of any nature commences. You want to have at least the basic terms of employment set down and agreed to before work starts. Employment agreements are vital.
There are many ways of recording agreements and most of them, if they are legible, understandable, reasonable and both parties have indicated their consent, will stand up in court as proof of the intentions of the parties.
What does legible and understandable mean?
This means that an average person with average reading comprehension should be able to discern the basic terms agreed to, with a measure of ease and certainty. It sounds strange to mention this but take into account that many documents, particularly those used in outdoor, construction or manufacture centred industries could easily be damaged by the elements, or through exposure to different substances. Having only one signed hard copy of a document is not a clever move. The best option is to create an electronic version immediately after both parties have signed.
Get the Tools
There are various handy smartphone apps to do this, and we love using the free app, Camscanner to instantly create PDF or JPEG versions of important documents. Camscanner can share your document directly to either email or WhatsApp.
If you don’t have a hard copy of the full agreement and the negotiations have been taking place mostly on the phone, we suggest that you take a minute to confirm all the terms of the agreement and the deliverables in some tangible form before work commences. This can be as simple as taking a moment and drafting an email or a WhatsApp message, stating all the terms you’ve agreed to verbally and asking the prospective employee or employer to confirm receipt of the message as well as indicate consent to its content.
This way of recording the terms of the agreement allows you to go back and confirm your various roles, responsibilities and what each party hope to get out of the agreement.
This is an informal way of doing business, and not sufficient for the long run, but it is better than having no record at all and can help you get started. It is important to understand that this isn’t technically the right way to do it. Think of this as a stopgap until a properly drafted employment contract can be signed.
There are different ways to create such an agreement and the best option would be to approach a legal professional to draft an agreement covering all the necessary terms of employment.
A basic employment agreement should at least make mention of the following:
- A description of the parties to the agreement.
- A full list of what type of work will be done. There should be a clear “job description” with a detailed list of tasks and responsibilities that both parties agree upon, as well as describing the process of how additional tasks should be added to this list (should they be written in and co-signed, is a WhatsApp message requesting certain once-off tasks enough, or even just verbally?)
- A detailed discussion of how and when (as well as how much) remuneration should be paid to the employee. (Here it is important to mention any agreements around performance bonusses, commission or even annual increases.)
- Working hours and overtime.
- Leave. (Annual leave, unpaid leave, sick leave, and family responsibility leave should be mentioned.)
- Notice period (should the employee choose to terminate his or her employment.)
The employment agreement for an administrative worker will differ greatly from one for a heavy machinery operator, so it is important to know what role the employee and employer each play, and to understand that each contract is different and should cater for the needs of the specific job that is to be done!
