Chapter 5 - Common Law and Statutory Conditions of Employment Flashcards
What does the BCEA state about deductions from an employee’s remuneration ?
The BCEA limits deductions for reimbursements due to an employee’s negligence. Employers cannot deduct unless:
- The employee consents in writing to a specific debt.
- The loss occurred in the course of employment and was due to the employee’s fault.
- The employee is given a reasonable opportunity to dispute the deduction.
- The deduction does not exceed the actual loss or a quarter of the employee’s monthly remuneration.
When can an employer deduct wages without consent ?
If required or permitted by law, collective agreement, court order, or arbitration award.
What is vicarious liability in employment law ?
It is a legal principle where an employer is held liable for wrongful acts committed by an employee in the course of employment.
Can a third party choose to sue the employer or the employee ?
Yes, the third-party claimant has the choice to sue either the employer or the employee.
When does vicarious liability not apply ?
If an employee deviates from their duties, the employer may not be held liable.
What is a restraint of trade clause ?
A clause in an employment contract preventing an employee from working for a competitor within a specific area and period after termination.
What did the court rule in Magna Alloys & Research SA (Pty) Ltd v Ellis ?
Restraint of trade agreements are valid and enforceable unless they contradict public policy.
What factors did was established for evaluating restraint of trade ?
- Does it protect a legitimate interest of the
employer ? - Does the employee’s new job prejudice that interest ?
- Does the employer’s interest outweigh the employee’s right to work ?
- Are there public policy considerations ?
Basson case.
What additional factor did Reddy v Siemens add ?
Whether the restraint goes further than necessary to protect the employer’s interest.
What was the ruling in Sadan v Workforce Staffing ?
The restraint of trade was enforceable, but the 2-year restriction was reduced to 1 year because it was excessive.
What are the main duties of an employer ?
- To remunerate the employee.
- To provide safe working conditions (common law duty).
- To treat employees with respect and dignity.
How is employee safety protected under COIDA ?
- COIDA (Compensation for Occupational Injuries and Diseases Act) provides insurance to employees for workplace injuries.
- Section 35(1) prevents employees from suing employers directly for injuries.
What is the minimum maternity leave an employee is entitled to ?
At least 4 months.
Can an employee work immediately after giving birth ?
No, they cannot work for 6 weeks after childbirth or a third-trimester miscarriage/stillbirth.
What changes did the Labour Laws Amendment Act introduce ?
- Parental Leave: 10 consecutive days.
- Adoption Leave: 10 weeks.
- Commissioning Parental Leave: 10 weeks.
What did Van Wyk v Minister of Employment and Labour decide ?
- The court found that the BCEA’s parental leave provisions were unconstitutional because they unfairly discriminated against parents who did not give birth.
- It ordered that parents collectively receive 4 months of parental leave.
What was the issue in Quantum Foods v Commissioner Jacobs ?
Whether monthly bonuses counted toward the minimum wage.
What payments are excluded from minimum wage calculations ?
- Transport, equipment, tools, and food allowances.
- Payments in kind (e.g., accommodation).
- Bonuses, tips, or gifts.
- Any other prescribed exclusions.
