In South African labour law, few phrases are thrown around with as much misplaced confidence as: “He never signed a contract, so he’s just a casual.” It’s a common misconception and one that continues to trip up employers long after an employee has been appointed, trained, and trusted with company property, all without ever putting pen to paper.

So, what happens when there’s no signed employment contract? Does the employment relationship exist? Is the employee considered “casual”? And perhaps most importantly, how vulnerable is the employer in this scenario? Let’s unpack it.

An Employment Contract Exists, Whether You Signed It or Not

In law, a contract of employment does not have to be in writing to be valid. Section 29 of the Basic Conditions of Employment Act (BCEA) requires employers to provide written particulars of employment, but the absence of a signed document doesn’t negate the relationship. If an employee is rendering services in return for remuneration, there is already a binding contract, and many of its terms are filled in by legislation, collective agreements, and custom.

That’s where implied terms come in:

Working hours? See the BCEA.

Leave? BCEA again.

Minimum wage? The National Minimum Wage Act.

Notice Period? Section 37 of the BCEA.

So, even if nothing was signed, the law fills in the blanks.

But What About “Casual” Employment

Some employers mistakenly assume that if there is no contract, the employee must automatically be a “casual”. This couldn’t be further from the truth. “Casual” work has a specific meaning: it usually refers to work that is genuinely irregular or done on an ad hoc basis, often to meet short-term or seasonal demands. It’s not defined by the absence of a written contract; the nature of the work itself defines it.

If an employee is reporting to work on a consistent schedule, using your equipment, wearing your uniform, and answering to your managers, they are not a casual worker. They are an employee, full stop. And they enjoy the complete protection of labour legislation.

The Risk for Employers

When there is no signed contract, employers lose the opportunity to define the terms clearly, things like probation, restraint of trade, working hours, disciplinary procedures, and even which Bargaining Council applies. If a dispute arises, the employer may find themselves relying on implied terms and conduct, rather than a clear, written record of agreement.

That means the Commission for Conciliation, Mediation and Arbitration (CCMA) will look at how the parties behaved, not just what they say they “understood.” Did you pay monthly? Then it’s not casual. Did you expect the person to work indefinitely, without a precise end date? Then it’s probably not a fixed-term contract. You get the picture.

Takeaway for Employers

An unsigned contract is not a loophole; it’s a liability.

If someone is working for you, the employment relationship has already begun, and their rights are protected, regardless of the paperwork (or lack thereof).

So don’t rely on assumptions. Issue contracts, follow up, and ensure they’re signed before the first shift begins. You’ll thank yourself later.

Written by Wesley Field, Provincial Manager, CEO SA