LABOUR LAW ARR 214 Theme 2
THEME 2 T H E I N D I V I D U A L C O N T R A C T O F T H E I N D I V I D U A L C O N T R A C T O F E M P L O Y M E N T A N D O T H E R R E L AT E D C O N T R A C T S . C O M M O N L AW C O N T R A C T O F E M P L O Y M E N T: D U T I E S O F E M P L O Y E R S P G L ( 2 0 0 6 : 9 - 1 8 , 2 5 - 2 8 ) ; W L ( 2 0 0 9 : 1 5 - 4 7 ; 5 3 - 5 7 ) P L L ( 2 0 0 5 : 3 5 - 7 8 ) ; C O D E O F G O O D P R A C T I C E O N W H O I S A N E M P L O Y E E ; V A N D E V E N T E R A N D V E N T U R E S A ( P T Y ) LT D [ 2 0 0 7 ] 2 8 I L J 2 6 8 ( C C M A ) , K Y L I E V C C M A ( 2 0 1 0 ) 3 1 I L J ( L A C )
THEME 2 (LEARNING OUTCOMES) • Explain the meaning of a common law contract of employment. • Discuss the conclusion of the contract of employment. • Discuss the essentials of a contract of employment. • Distinguish the contract of employment from similar contracts. Also include a discussion of sect 200A of the LRA. • • Apply the Code of Good practice on who is an Apply the Code of Good practice on who is an employee. • Appreciate the effect of collective labour provisions on contracts of employment. • Know the duties of employers, the remedies of employees and also the sources from which they emanate. • Comprehensively discuss the delictual liability of the employer. • Discuss the principle of ‘restraint of trade’.
THEME 2 (DEFINITIONS) • Contract of Employment Agreement between two parties in terms of which one party places labour potential at disposal and under control of other party, in exchange for some form of remuneration. OR A mutual agreement in terms of which employee makes his services available for determined period and remuneration under for determined period and remuneration under authority of employer. • Employer Pay remuneration for services and exercises authority over employee. • Employee Receives remuneration for rendering of services (excluding independent contractor) or assist in promotion of business (see sect 200A).
������� ������� ������� ������� ��������������������� ���������������� • locatio conductio operarum - according to Roman law a person could lease his services to another person. • locatio conductio operis - compensation was paid for the result of services • locatio conductio rei – I.t.o. Roman-Dutch • locatio conductio rei – I.t.o. Roman-Dutch law the principles regulating the lease of things were also applicable to delivery of services.
THEME 2 (COMMON LAW CONTRACT OF EMPLOYMENT II) • Vacation leave – a privilege • Sick leave – no paid sick leave in terms of common law of common law
THEME 2 (CONTRACT OF EMPLOYMENT) • The contract of employment being a contract, is also governed by general legal principles regarding its validity, these being: 1.consensus; 1.consensus; 2.contractual capacity; 3.legality and 4.physical possibility; 5.and the compliance with formalities if so required
THEME 2 (ESSENTIALS OF A CONTRACT OF EMPLOYMENT) The essentials of a contract of employment are: • a contract / agreement • services are rendered • under authority of employer • remuneration • Term oFixed oOpen ended
THEME 2 (CONTRACT OF EMPLOYMENT AND SIMILAR CONTRACTS I) • It is important to distinguish the contract of employment from similar contracts with a view to inter alia determining: determining: 1. the applicability of certain provisions of e.g. – the Labour Relations Act, the Compensation for Occupational Injuries and Diseases Act; 2. the applicability of certain wage regulating measures and 3. the determination of the vicarious liability of an employer.
THEME 2 (CONTRACT OF EMPLOYMENT AND SIMILAR CONTRACTS II) • Our courts have relied on certain criteria: othe relationship of authority; o“organisation test”; othe intention of the parties; othe nature of the legal relationship; othe nature of the legal relationship; o“dominant impression” test/mixed or multiple test. • Labour Relations Act osection 213 definition oSection 200A statutory presumption • Code for Good Practice as to who is an employee
THEME 2 (CONTRACT OF EMPLOYMENT AND SIMILAR CONTRACTS III) Sect 213 'employee' means- • (a) any person, excluding an independent contractor, who works for another person or contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and • (b) any other person who in any manner assists in carrying on or conducting the business of an employer.
THEME 2 (CONTRACT OF EMPLOYMENT AND SIMILAR CONTRACTS IV) Sect 200A (Statutory presumption as to who is an employee) Until the contrary is proved, a person who works for, or renders services to, any other person is presumed, regardless of the form of the contract, to be an employee, if any one or more of the following factors are present: following factors are present: • the manner in which the person works is subject to the control or direction of another person; • the person's hours of work are subject to the control or direction of another person; • in the case of a person who works for an organisation, the person forms part of that organisation; • the person has worked for that other person for an average of at least 40 hours per month over the last three months; • the person is economically dependent on the other person for whom he or she works or renders services; • the person is provided with tools of trade or work equipment by the other person; or • the person only works for or renders services to one person.
THEME 2 (CONTRACT OF EMPLOYMENT AND SIMILAR CONTRACTS V) • Code issued i.t.o. section 200A of LRA • Government Gazette no 29445 of 1 December 2006 • Guidelines and explanations • • Application of Legislation Application of Legislation
THEME 2 (CONTRACT OF EMPLOYMENT AND SIMILAR CONTRACTS VI) Van Deventer and Venture SA (Pty) Ltd [2007] 28 ILJ 268 (CCMA) • Dismissal prior to the employee commencing work • • Procedure Procedure • Referral to Wyeth SA v Mangele (LAC) – date of contract date of employment
THEME 2 (CONTRACT OF EMPLOYMENT AND SIMILAR CONTRACTS VI) Criteria to distinguish the contract of employment from related contracts Contract of Mandate – see par 128 PLL • Applies where a person undertakes to render personal services to another for example an advocate or attorney Agency – see par 130 PLL • A person is endowed with authority to represent a principal in executing any legal transactions for the principal ( Note: An employee can also represent his employer) represent his employer) Contract of work – see par 132 PLL • A contractor who accepts work as a result of such a contract is under an obligation to make an article, build or repair – without direct supervision for example road construction contractors. Partnership agreement – see par 134 PLL • Partners contribute towards the partnership – this could be in the form of a service, but the partner will not be under the authority of his co- partners. Contract of Lease – see par 136 PLL • Note differences - lease is the “hiring of objects”. Employment “hiring of services”
THEME 2 (DUTIES OF EMPLOYER I) • To accept the employee into his service Service - remuneration. • To provide the employee with work if: o Remuneration based on amount of work o Reduction of status of employee o Reduction of status of employee o Training o Publicity (Other than above no duty!)
THEME 2 (DUTIES OF EMPLOYER II) • To pay the agreed remuneration o Money o End of service To pay quantum meruit • o Abandoning before completion of work o Bona fide – reasonable remuneration
THEME 2 (DUTIES OF EMPLOYER III) • To provide safe working conditions o Reasonable steps • To comply with statutory duties o LRA, BCEA, OHASA, COIDA, UIF. o Statutory duties include: � Fair labour practices – specific fundamental rights � Work – implies that employee can expect: 1- 6 (see par 153 in PLL) � Rights to organise and associate – may join a trade union � Provide job and subsistence security – personal security � Avoid discrimination – race, gender, culture etc. Protection against discrimination – When? � When applying for a job � When applying for a job � When in the employment of an employer and rendering services � When his services are terminated Permissible discrimination: � inherent requirements, � affirmative action, � retirement age
THEME 2 (DUTIES OF EMPLOYER IV) • Fair treatment of employee.
THEME 2 (EMPLOYEE’S REMEDIES) 1.Cancellation of the employment contract 2.Claiming specific performance 3.Claiming damages 3.Claiming damages 4.Refusal to work 5.Statutory remedies
THEME 2 (DELICTUAL/VICARIOUS LIABILITY) • contract of employment • unlawful conduct • acted in scope of employment
THEME 2 (RESTRAINT OF TRADE) • Competition with employer prohibited for certain period i.r.o. certain region. • REASONABLE • PUBLIC INTEREST
NEXT LECTURE • Duties of Employees • Termination of contract of employment employment
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