[Question] At will employment - What is this and is it legal in SA?

[Mark15]

Hi,

I have received the following wording in an employment contract and would like to know if this is legal and also what it means in simple terms:

I agree that unless specifically stated in writing and signed by both me and an authorized officer of the Company, subject to controlling law, any employment granted to me is at will and has commenced on <date>. In accepting employment by Company, I have not relied and will not rely on any statements or representations, whether oral or in writing, by any officers, employees or agents of Company concerning the duration or term of employment, grounds and procedures for discharge or termination of employment, or any other terms and conditions of employment except those specifically stated in writing and signed by both me and an authorized officer of Company. I further understand that the provisions of any employee handbooks, personnel manuals and any and all other written statements of or regarding personnel policies, practices or procedures that are or may be issued by Company or any official or department thereof from time to time do not and shall not constitute a contract of employment and create no vested rights; that any such provisions may be changed, revised, modified, suspended, cancelled, or eliminated by Company at any time without notice; and that they constitute guidelines only and may be disregarded either in individual or Company-wide situations when in the sole opinion and judgment of Company circumstances so require.

Thank you so kindly!

Mark

[Citizen X]

Hi Mark,

One of the requirements for any contract is that the conclusion, performance and object of the contract must be lawful. The at 'will,' part, I interpret it as meaning by consent of both parties and not by duress. I stand to be corrected..

[Mark15]

Thank you Vanash.

I get your point.

However, towards the end of the first line it states "is at will"... at will of whom?

By implication I would imagine that it would be the person offering the contract. If that is true, the employee is agreeing to accepting the employers "will" as it were, and in so doing waives a mutual agreement.

Also the employee is waiving rights contained in BCEA as they consent to employer disregarding those regulations or policies and procedures. I'm pretty sure this is inherently illegal?

Thoughts and comments?

Thanks again!

Regards,

Mark

[HR Solutions]

I would also like to find out a bit more about this "at will" - we have also just encountered it.

Below is a US version from wiipedia ........ Is this the case here as well and what really does it mean ?

At-will employment is a term used in U.S. labor law for contractual relationships in which an employee can be dismissed by an employer for any reason (that is, without having to establish "just cause" for termination), and without warning.[1] When an employee is acknowledged as being hired "at will", courts deny the employee any claim for loss resulting from the dismissal. The rule is justified by its proponents on the basis that an employee may be similarly entitled to leave his or her job without reason or warning.[2] In contrast, the practice is seen as unjust by those who view the employment relationship as characterized by inequality of bargaining power.[3]

[Citizen X]

I would also like to find out a bit more about this "at will" - we have also just encountered it.

Below is a US version from wiipedia ........ Is this the case here as well and what really does it mean ?

If this is the case, then there's no doubt whatsoever that the contract is an unlawful one which cannot be enforced in any court of law.

[HR Solutions]

If this is the case, then there's no doubt whatsoever that the contract is an unlawful one which cannot be enforced in any court of law.

Then why would a SA company be putting it in a contract ?

[Mark15]

Then why would a SA company be putting it in a contract ?

This is as I thought illegal.

Any labour lawyers on the forum prepared to look at this case for me, redraft the contract and represent (obviously I will pay) kindly inbox me.

Thanks to all for the research and advice!

Regards,

Mark

[Citizen X]

Then why would a SA company be putting it in a contract ?

It's beyond me HR Solutions, your guess is as good as mine. On the given facts, the conclusion, object and purpose of the contract is unlawful.

[Blurock]

Then why would a SA company be putting it in a contract ?

It appears as if the contract was copied from the web and applies to the loose labour laws in the US where people can get fired for no reason. Downloading contracts from the internet can be very dangerous as it may not apply in your country.

Downloading may be done because of ignorance or maybe they do not want to pay a professional to do their contracts. In the end the money saved can come back to bite you ...

[Mike C]

It might be interesting to ask the employer what it means and see if he/she even understands it. If it has just been copied from the web, then there is a good chance that they also don't have the foggiest idea and you can refuse to sign it until it has been changed.

[Dave A]

subject to controlling law, any employment granted to me is at will and has commenced on <date>.

The "at will" part is unenforceable in SA due to our labour legislation, and effectively the contract recognises this - not so much that it is unenforceable in SA per se, but universally that where there is law that prevents (this clause) from being of force and effect, the legislation takes precedence.

[HR Solutions]

Some great answers thanks guys