Chapter 3 Flashcards
The employment relationship is regulated by three sources of law. What are they?
- The Constitution
- Labour legislation
- The law of contract
What is the definition of an employee, as found in s213 of the LRA?
Any person, excluding an independent contractor, who works for another person or for the State, and who receives, or is entitled to receive, any remuneration and any other person who in any manner assists in carrying on or conducting the business of an employer
Why is it important to establish whether a person is an employee or an independent contractor?
Because independent contractors are not protected by the Labour Relations Act
Name the tests used to determine whether a person is an employee of an independent contractor. Give a brief explanation of each
- The control test (employment relationship characterized by element of control)
- The organization test (whether person for part of employer’s organization- dress code, etc)
- The dominant impression test (looks at main impression of relationship)
In 2002 a rebuttable presumption regarding who is an employee was added to the LRA. S200A states:
Pg27
What was the importance of the rebuttable presumption?
It incorporates the elements of control, organization, and dominant impression tests and reverses the onus of proof
When do the rebuttable presumption apply?
When employees earn less than the prescribed threshold amount
Recent court decisions have stated that the true test to determine the nature of the relationship between parties is the …..?
Reality test
What is the criteria for the reality test?
- The employer has a right to supervise or control the employee
- The employee forms an integral part of the organization of the employer; and
- The employee is economically dependent on the employer
Must all the criteria of the reality test be met in order to determine the nature of the relationship?
No, any one of the factors is sufficient
True or false: the existence of an employment relationship is determined by the conclusion of a written contract of employment
False. It is not determined by a written employment contract, despite a provision in the BECA requiring a written contract
Written employment contracts can reveal a lot about the nature of the relationship; but the are not conclusive, especially where it is abused by the employer to escape legal obligations. Name cases that demonstrate this
- Denel v Gerber
- Building Bargaining Council v Melmons Cabinets CC
- Dyokhwe v De Kock
- Murray v Minister of Defense
True or false: the existence of an employment relationship is determined by the conclusion of a written contract of employment
False. It is not determined by a written employment contract, despite a provision in the BECA requiring a written contract
Written employment contracts can reveal a lot about the nature of the relationship; but the are not conclusive, especially where it is abused by the employer to escape legal obligations. Name cases that demonstrate this
- Denel v Gerber
- Building Bargaining Council v Melmons Cabinets CC
- Dyokhwe v De Kock
- Murray v Minister of Defense
What is the definition of an employer?
An employer is any person that employs or provides work to an employee and that remunerates the employee for such services, or permits such employee to assist it in the carrying on or conducting of its business
Why do Temporary Employment Services (TES) or labour-brokering agreements make identification of the employer problematic?
- Because the traditional “methods” for determining the employer do not apply to TES agreements. Such as:
1. The dominant impression test
2. The control test
3. The organization test,
4. The rebuttable presumptions, and - The above would indicate that the client is the employer; however the TES is in fact the employer
5. The reality test
The employment contract between a TES and its employees usually contains a ….. clause
Automatic termination
Why have automatic termination clauses been regarded as being contrary to the LRA and to public policy?
- Because it allows for the cancellation of the employment contract if the client cancels the service contract for any reason.
- And because in theses circumstances the client does not have to conduct disciplinary enquiries, or comply with the requirements for unfair dismissal.
- As such employees are left vulnerable
Name a case that pertains to the impermissibility of automatic termination clauses. What was the justification for the impermissibility?
SATAWU v Fidelity Supercare Cleaning Services Group (Pty) Ltd.
Justification: these clauses limit an employee’s right to fair labour practices
Why was the Labour Relations Amendment Act 6 of 2014 introduced?
In order to address the abuses that were occurring
Define temporary employment in terms of s198A
Work by an employee for a client:
- For a period not more than 3 months
- Irrespective of the length of the contract, as a substitute for an employee of the client that is temporarily absent for, eg maternity leave
- In a type of work that is classified as a temporary service by a bargaining council agreement, sectoral agreement or ministerial notice
True of false: the new s198A applies only to employees earning below the prescribed threshold
True
What is the result of employees not fitting into the s198A definition of temporary employment?
The are deemed to be employees of the client and to be employed on an indefinite basis by the client. They are to be treated no worse (in terms of pay, benefits, ect) than a permanent employee performing the same/similar work
Are workers that are engaged in illegal contracts of employment entitled to protection by the LRA? Why?
Yes they are. Because a valid contract of employment is not required for workers to be classified as employees and protected by the LRA. The substance of the relationship is more dominant than the legal form it takes
Which two cases resolved the uncertainty of whether workers engaged in illegal contracts should be entitled to protection
- Discovery Health Ltd v CCMA
2. Kylie v CCMA
What are the common-law duties of employees?
- The duty to enter and remain in service
- The duty to maintain reasonable competence
- The duty to further the employer’s business interests
- The duty to be respectful and obedient
- The duty to behave appropriately
What consequence arises should an employee fail to act in accordance with any one of his/her common-law duties?
Failure to comply can give rise to the fair dismissal of the employee
What are the common-law duties of employers?
- They duty to receive the employee into service
- The duty to pay the agreed remuneration
- The duty to provide safe working conditions
- The duty to be vicariously liable to third parties for acts of employees (onus on 3rd party)
Define the contract of employment
An employment contract is an agreement between two parties in terms of which on party, the employee, undertakes to places his/her services at the disposal of the other party for an indefinite or agreed period of time in exchange for remuneration
What does the BCEA require the written contract of employment to contain?
- The name and address of the employer
- The name and occupation of the employee
- The place of work
- The date of commencement of employment
- The employee’s ordinary hours and days of work
- The employee’s remuneration and how often it will be paid
- The rate of payment for overtime work
- Cash payments or benefits payable and deductions that can be made from salary
- The leave the employee may take
- The notice period
What are the other requirements (besides information) for valid contract of employment?
- Employer must ensure that the employee is able to understand the written terms and that it is explained in a language the employee understands
- Any changes to the contract must be in writing
- Failure to record the contract in writing does not make it void
- Employees earning less than the threshold and employed in terms of fixed-term contracts are required to be in writing and to state the reason for the contract
What are the rules regarding disciplinary rules and procedures?
- They may be included in the contract of employment
- If the rules are contained in the contract, the employee is presumed to be aware of the rules
- If a rule is breached, it may lead to the employee’s dismissal
- An employer may set any rule and sanction provided that it is reasonable and not contrary to public policy
What does a restraint of trade clause do?
Prevents the employee from competing with an employer’s business interests after the employment ends
May a restraint of trade clause be included in a contract of employment?
Yes if it is reasonable
Give an example when a restraint of trade clause would be contrary to public policy
When it prevents an employee from earning a livelihood
What will a court consider in determining whether a restraint of trade clause is lawful and reasonable?
- Whether the employer has a legitimate interest that ought to be protected
- Whether that interest is being negativity affected
- The court will then weigh up the conflicting interests of the employer and employee and decide whether to enforce the clause
Name two cases that pertain to restraint of trade clauses
- David Crouch Marketing v Du Plessis
2. SPP Pumps (Pty) Ltd v Stoop
In terms of unlawful terms; a contract of employment may not contain:
- Terms that are unlawful or contrary to public policy
- Terms whereby an employee agrees to waive/give up the right to statutory protection
- Terms that give the employer power to contract out of legislative protections
- Terms that set working hours in excess of the maximum working hours set by the BCEA
- Terms that allow the employer to pay employees less than the minimum wage in terms of the LRA
May terms that assign decision-making to the discretion of the employer be included in a contract? If so under what condition?
Yes. Provided that they are fair and reasonable. If not, the considerations of fairness and reasonableness will be implied into the contract and override the express term
Where an implied term is alleged, courts apply what test to determine the subjective intention of the parties? What are the requirements for an implied term?
The officious bystander test.
Requirements:
1. The term must be necessary to make the contract work
2. The term must reflect the presumed intention of the parties, and
3. Must be obvious and capable of precise formulation
What is a term implied by law?
An unexpressed provision that the law imports into the contract irrespective of the intention or knowledge of the parties
Where an implied term is alleged, courts apply what test to determine the subjective intention of the parties? What are the requirements for an implied term?
The officious bystander test.
Requirements:
1. The term must be necessary to make the contract work
2. The term must reflect the presumed intention of the parties, and
3. Must be obvious and capable of precise formulation
What is a term implied by law?
An unexpressed provision that the law imports into the contract irrespective of the intention or knowledge of the parties
