Eswatini

In Eswatini, the Employment Act of 1980 governs the various types of employment agreements that can be established between employers and employees.

Indefinite Term Contracts

Indefinite term contracts are the most common type of employment agreement. They offer ongoing employment with no predetermined end date. These contracts provide stability for both the employer and the employee. Termination of these contracts usually follows specific procedures outlined in the Employment Act.

Fixed-Term Contracts

Fixed-term contracts specify a predetermined duration for the employment relationship. These contracts are suitable for project-based work, temporary positions, or seasonal needs. The Employment Act governs the renewal or termination of such contracts.

Part-Time Employment Contracts

Part-time employment agreements cater to employees working less than the standard full-time hours. These contracts should clearly define the working hours, schedule, and any benefits applicable to part-time employees.

Collective Agreements

Collective agreements are a unique type of employment contract negotiated between a group of employers (or an employer's association) and a trade union or staff association. These agreements establish terms and conditions of employment, grievance procedures, and other aspects of mutual interest for a particular industry or workplace.

Eswatini's labor laws also address specific employment categories, such as young workers and domestic employees. Employers should ensure their agreements comply with the relevant provisions of the Employment Act for these categories.

Eswatini law emphasizes the importance of clear and comprehensive employment agreements. These agreements protect both employers and employees by outlining expectations and obligations. Here's a breakdown of essential clauses to consider including in an Eswatini employment agreement:

Basic Information

• Parties to the Agreement: Clearly identify the employer and employee involved.
• Commencement Date: Specify the date the employment relationship begins.

Job Description

• Job Title: Mention the specific job title and a brief description of the employee's duties and responsibilities.

Remuneration and Benefits

• Salary/Wages: Outline the employee's base salary or wages, including the mode of payment and frequency.
• Benefits: Detail any benefits offered, such as health insurance, provident fund contributions, or leave entitlements.

Working Hours and Conditions

• Work Schedule: Specify the standard working hours, including start and end times, any breaks, and whether overtime work is expected.
• Location of Work: Indicate the primary place of work. This gains significance when discussing remote work arrangements.

Leave Entitlements

• Annual Leave: Outline the annual leave entitlement.
• Sick Leave: Detail the policy on sick leave, including eligibility and documentation requirements.
• Other Leave: Specify any additional leave provisions, such as maternity leave or compassionate leave.

Termination

• Notice Periods: Establish the required notice period for termination by either employer or employee.
• Termination Clauses: Outline the grounds for termination and the procedures to be followed.

Dispute Resolution

• Grievance Procedures: A mechanism for addressing employee grievances within the organization should be outlined.
• Alternative Dispute Resolution: Consider including a clause encouraging alternative dispute resolution to settle disputes amicably before resorting to litigation.

The Employment Act, 1980 (Swaziland) recognizes the probationary period as an essential phase in the commencement of employment. This period allows employers to evaluate an employee's suitability for the role and the company culture. Simultaneously, it provides employees with a chance to showcase their skills and adapt to the work environment.

Key Features of Probationary Periods

Purpose: The primary objective of the probationary period is to assess the employee's compatibility within the organization based on their performance, skills, and adherence to company policies.

Maximum Duration: The Employment Act stipulates a standard maximum probationary period of three months for most positions.

Exceptions: For roles that are supervisory, technical, or confidential, the probation period can exceed three months. However, the exact duration must be mutually agreed upon in writing by the employer and the employee at the time of hiring.

Termination During Probation: During a validly established probationary period, either party (employer or employee) can terminate the employment relationship without notice.

Considerations During Probationary Periods

Fairness: Employers should ensure that termination during probation is based on objective criteria related to job performance or conduct, and not on discriminatory reasons.

Documentation: Employers are advised to clearly define the terms and conditions of the probationary period in a written document provided to the employee at the beginning. This can help manage expectations and prevent misunderstandings.

Performance Management: The probationary period is an excellent time to implement a structured performance management process. This allows for regular feedback and guidance to support the employee's development and success in the role.

In Eswatini's employment landscape, confidentiality and non-compete clauses play a crucial role in protecting sensitive business information and mitigating potential competition from former employees.

Confidentiality Clauses

Confidentiality clauses are designed to protect an employer's confidential information, such as trade secrets, client lists, or marketing strategies. These clauses prevent employees from disclosing such information to unauthorized third parties during and after their employment.

To be enforceable, confidentiality clauses should be:

• Clearly Defined: The specific confidential information protected by the clause needs to be clearly defined to avoid ambiguity.
• Reasonable in Scope: The scope of confidential information should be reasonable and not encompass general knowledge or skills acquired through employment.
• Time-Bound: The clause can specify a duration for which the confidentiality obligation applies after employment ends. This duration needs to be reasonable and not restrict an employee's future career prospects indefinitely.

Non-Compete Clauses

Non-compete clauses aim to limit an employee's ability to work for a competitor or start a competing business after leaving the employer. However, Eswatini law enforces non-compete clauses with stricter limitations compared to confidentiality clauses.

Employers in Eswatini should consider the following regarding non-compete clauses:

• Restraint of Trade: Eswatini courts generally view non-compete clauses as a form of restraint of trade, and their enforceability depends on whether they are deemed reasonable.
• Reasonableness Test: For a non-compete clause to be enforceable, it must be reasonable in terms of its geographic scope, duration, and the roles restricted. An overly broad clause restricting an employee's ability to find work in their field might be deemed unreasonable by the court.
• Seniority and Sensitive Roles: Non-compete clauses are more likely to be upheld for senior employees or those with access to highly sensitive information.