The sixteen written particulars
The permanent, or indefinite, contract is the default. It is what the law assumes whenever a person is an employee and nothing else has been validly agreed, and it is what a non-compliant fixed-term contract becomes by operation of law. The BCEA does not prescribe a form of contract, but it does prescribe what you must put in writing and hand over on the first day:
An employer must supply an employee, when the employee commences employment, with the following particulars in writing— (a) the full name and address of the employer; (b) the name and occupation of the employee, or a brief description of the work for which the employee is employed; (c) the place of work, and, where the employee is required or permitted to work at various places, an indication of this; (d) the date on which the employment began; (e) the employee's ordinary hours of work and days of work; (f) the employee's wage or the rate and method of calculating wages; (g) the rate of pay for overtime work; (h) any other cash payments that the employee is entitled to; (i) any payment in kind that the employee is entitled to and the value of the payment in kind; (j) how frequently remuneration will be paid; (k) any deductions to be made from the employee's remuneration; (l) the leave to which the employee is entitled; (m) the period of notice required to terminate employment, or if employment is for a specified period, the date when employment is to terminate; (n) a description of any council or sectoral determination which covers the employer's business; (o) any period of employment with a previous employer that counts towards the employees period of employment; (p) a list of any other documents that form part of the contract of employment, indicating a place that is reasonably accessible to the employee where a copy of each may be obtained.
In plain terms, the contract must record:
- (a)Your full name and address as the employer
- (b)The employee’s name and occupation, or a short description of the work
- (c)The place of work, and a note if they work at various places
- (d)The date employment began
- (e)Ordinary hours and days of work
- (f)The wage, or the rate and method of calculating it
- (g)The rate of pay for overtime
- (h)Any other cash payments they are entitled to
- (i)Any payment in kind, and its value
- (j)How often they are paid
- (k)Any deductions to be made from pay
- (l)The leave they are entitled to
- (m)The notice period, or, for a fixed term, the date employment ends
- (n)Any bargaining council or sectoral determination that covers the businessfrom 5 employees
- (o)Any previous service that counts towards their period of employmentfrom 5 employees
- (p)A list of other documents that form part of the contract, and where to find themfrom 5 employees
Three follow-on duties are easy to miss. Every change must be put in writing and a copy given to the employee; if they cannot understand the document you must explain it in a language and manner they do; and the particulars must be kept for three years after the employment ends:
(2) When any matter listed in subsection (1) changes— (a) the written particulars must be revised to reflect the change; and (b) the employee must be supplied with a copy of the document reflecting the change. (3) If an employee is not able to understand the written particulars, the employer must ensure that they are explained to the employee in a language and in a manner that the employee understands. (4) Written particulars in terms of this section must be kept by the employer for a period of three years after the termination of employment.
The relief for very small employers is narrow. If you employ fewer than 5 people you are excused from items (n), (o) and (p) only, together with the display of the rights statement, the wage and time records and the payslip rule. Items (a) to (m) apply from your first employee:
(1) This Chapter does not apply to an employee who works less than 24 hours a month for an employer. (2) Sections 29(1)(n), (o) and (p), 30, 31 and 33 do not apply to— (a) an employer who employs fewer than five employees;
Probation under the 2025 Code
Probation is lawful, and it is useful, but it is not a period of no rights. The rules moved on 4 September 2025, when the new Code of Good Practice: Dismissal replaced Schedule 8 to the LRA. The Code exists only as a scanned Gazette; the passages below were read from the scan and then checked against the Gazette page itself. Two things changed in substance.
First, the standard for a probation dismissal is now stated plainly: a tribunal ought to accept reasons that may be less compelling than for a confirmed employee. Second, and in the other direction, you may only decide to dismiss or to extend probation after the employee has been given the opportunity to make representations and you have considered them. The Code starts with what probation is for:
The purpose of probation is to give the employer an opportunity to evaluate the employee's performance and suitability for employment before confirming the appointment.
Probation should not be used for purposes not contemplated by this Code, to deprive employees of the status of permanent employment. For example, a practice of dismissing employees at the end of their probation periods for reasons unrelated to their performance or suitability for employment and replacing them with newly hired employees is inconsistent with the purpose of probation and may constitute an unfair dismissal.
The period must be fixed in advance and be reasonable for the job — three months is common for most roles, longer only where suitability genuinely takes longer to judge — and during it you must give real guidance:
The period of probation should be determined in advance and be of a reasonable duration. The length of the probationary period should be determined with reference to the nature of the job and the time it takes to determine the employee's suitability for continued employment.
During probation an employer should give an employee reasonable guidance, appropriate to the nature and size of the employer and the job, which may include instruction, training or counselling, in order to allow the employee an opportunity to render a satisfactory service.
An employer may only decide to dismiss an employee or extend the probationary period after the employer has given the employee the opportunity to make representations and the employer has considered any representations made.
Any person deciding about the fairness of a dismissal of an employee related to the employee's conduct or capacity, including poor work performance, during or on expiry of the probationary period, ought to accept, taking into account the purpose of probation, reasons for dismissal that may be less compelling than would be the case in dismissals effected after the completion of the probationary period.
A probation clause that works, then, says how long the period is, what will be evaluated, that guidance will be given, that a meeting will be held before any decision, and that the period may be extended once for a stated reason after that meeting.
Hours and overtime
For employees earning at or below R269 600,90 a year, ordinary hours and overtime are statutory floors. You may agree fewer hours; you may not agree more:
Subject to this Chapter, an employer may not require or permit an employee to work more than— (a) 45 hours in any week; and (b) nine hours in any day if the employee works for five days or fewer in a week; or (c) eight hours in any day if the employee works on more than five days in a week.
Subject to this Chapter, an employer may not require or permit an employee to work— (a) overtime except in accordance with an agreement; (b) more than ten hours' overtime a week.
Overtime needs an agreement, so put one in the contract — but know that an overtime agreement signed at the start of employment lapses after a year and must be renewed, and that overtime is paid at a premium to the ordinary rate. Above the threshold, sections 9 and 10 no longer apply by law; the contract is then the only source of the employee’s hours and of any overtime pay, which is why an above-threshold contract must deal with both in terms. The threshold guide lists every section that switches off.
Leave
Leave is a floor in Chapter Three of the BCEA, and the contract may improve on it but not reduce it. The minimums are:
- Annual leave: 21 consecutive days on full pay in each 12-month cycle, or by agreement one day for every 17 days worked. No pay in place of leave except on termination.
- Sick leave: in each three-year cycle, the number of days the employee would normally work in six weeks; in the first six months, one day for every 26 days worked. A medical certificate can be required after more than two consecutive days.
- Family responsibility leave: three days a year, for employees who have worked for you for more than four months and at least four days a week.
- Maternity leave: at least four consecutive months, with no work for six weeks after the birth.
- Parental, adoption and commissioning parental leave: ten consecutive days, ten weeks and ten weeks respectively in the Act as printed — now subject to the Constitutional Court’s interim reading in Van Wyk.
Van Wyk is the change most contracts have not caught up with. On 3 October 2025 the Constitutional Court held the maternity and parental leave scheme unconstitutional for treating parents differently, and read in an interim regime until Parliament fixes it:
The practical effect is that a couple may share the combined period between them as they choose, so a father may take far more than ten days if the mother takes less. A leave clause should refer to the BCEA “as read with the order in Van Wyk” rather than hard-code ten days.
Notice and severance
Notice periods scale with length of service. The contract may agree longer notice, but never shorter, and never longer for the employee than for you:
Subject to section 38, a contract of employment terminable at the instance of a party to the contract may be terminated only on notice of not less than— (a) one week, if the employee has been employed for six months or less; (b) two weeks, if the employee has been employed for more than six months but not more than one year; (c) four weeks, if the employee— (i) has been employed for one year or more; or (ii) is a farm worker or domestic worker who has been employed for more than six months.
No agreement may require or permit an employee to give a period of notice longer than that required of the employer.
Notice must be given in writing, cannot run concurrently with annual leave, and can be replaced by payment in lieu. Remember, too, that giving notice is not the same as dismissing fairly: an employer who gives contractual notice still needs a fair reason and a fair procedure under the LRA.
Severance pay is due only on a retrenchment (or an insolvency), not on a resignation or a dismissal for misconduct, and the floor is one week per completed year:
An employer must pay an employee who is dismissed for reasons based on the employer's operational requirements or whose contract of employment terminates or is terminated in terms of section 38 of the Insolvency Act, 1936 (Act No. 24 of 1936), severance pay equal to at least one week's remuneration for each completed year of continuous service with that employer, calculated in accordance with section 35.
The Labour Law Amendment Bill published for comment in February 2026 proposes two weeks per year. It is not law; the Department expects promulgation in 2028.
Deductions, payslips and the ancillary clauses
Two rules about money belong in every contract. You may not deduct anything from pay without either a written agreement for a specified debt or a law, order or award that requires it — so a general “we may deduct losses” clause does not work:
An employer may not make any deduction from an employee's remuneration unless— (a) subject to subsection (2), the employee in writing agrees to the deduction in respect of a debt specified in the agreement; or (b) the deduction is required or permitted in terms of a law, collective agreement, court order or arbitration award.
And every pay day needs a payslip. Section 28(2) lifts this for employers with fewer than 5 employees, but the National Minimum Wage Act applies the same payslip provisions to every worker without a headcount carve-out, so the safe course is a payslip from the first employee:
An employer must give an employee the following information in writing on each day the employee is paid: (a) The employer's name and address; (b) the employee's name and occupation; (c) the period for which the payment is made; (d) the employee's remuneration in money; (e) the amount and purpose of any deduction made from the remuneration; (f) the actual amount paid to the employee;
The wage itself may never be below the national minimum of R30,23 an hour for each ordinary hour; that floor cannot be waived by contract.
Beyond the statutory particulars, a permanent contract for anyone with access to clients, pricing or know-how should carry a confidentiality and intellectual property clause and, where there is a real interest to protect, a restraint of trade. Employee-made work belongs to you under the Copyright Act, but the clause removes argument; a contractor’s work does not, which is one more reason to get the status right first. The disciplinary code, grievance procedure and workplace policies should be listed under item (p) and kept where the employee can read them — see the minimum policies guide.
The employment agreement explainer sets out how the firm drafts each clause. If you are not sure the person should be permanent at all, the which contract do I need tool routes you from the statutory facts to the right instrument.
Figures last reviewed 9 September 2026.
Frequently asked questions
No. An oral contract of employment is still a contract. What section 29 of the BCEA requires is that you give the employee the written particulars when they start; that is a duty on you, not a condition of the contract existing. Have the contract signed anyway: it is the only reliable proof of what was agreed, and the particulars must be kept for three years after the employment ends.
Yes. Section 28(2) relieves employers with fewer than 5 employees of only three of the sixteen particulars (items n, o and p), the display of the rights statement, the wage and time records and the payslip rule. The core particulars in items (a) to (m) apply from the first employee, and the minimum wage Act separately applies the payslip rules to every worker.
Yes, but only after giving the employee an opportunity to make representations and considering them, and only for a reason connected to evaluating their performance and suitability. The 2025 Code says the period should be set in advance and be reasonable for the job. Extending probation repeatedly to avoid confirming the appointment is the kind of use the Code says may be an unfair dismissal.
No. Section 37(3) of the BCEA says no agreement may require an employee to give a longer period of notice than the employer must give. You may agree a longer period than the statutory minimum, but it must be the same both ways.
You need more of it, not less. Above the threshold the BCEA rules on ordinary hours and overtime no longer apply by law, so the contract is the only place those terms exist. The written particulars, leave, notice, severance and unfair-dismissal protection all continue to apply regardless of earnings. See the earnings threshold.