Duties and remedies for employees' Flashcards
1) Making Services Available
Employees must make their services available to the employer and are not entitled to wages if their services are unavailable, regardless of the reason.
The principle “no work, no pay” applies, treating employees absent due to uncontrollable factors (e.g., illness) the same as those refusing to work (e.g., striking).
The employer may not force the employee to perform work other than agreed upon, unless the parties have agreed to the performing of other work.
Employees must begin work on the appointed day and follow all lawful instructions. Absence without reason is a breach of contract and can lead to dismissal, especially if persistent despite warnings
2) Warranting Competence:
The employee must obviously be able to do the work for which he was appointed because, at conclusion of the contract, he tacitly guarantees that he is suitable for the work
If found incompetent, they breach this warranty, but a single act of incompetence is not enough for dismissal without giving a chance to improve.
Probationary periods allow termination if performance is unsatisfactory, provided a fair process is followed, including regular evaluations and the opportunity to defend against dismissal.
The standard of competence that the employer is entitled to expect will depend on factors such as the capacity in which the employee is engaged, his level of skills and training and any promises made by the employee concerning his skills and abilities.
3) Obeying the Employer:
Employees must obey reasonable and lawful instructions; disobedience is a breach of contract but not always grounds for dismissal.
Refusing unlawful or unreasonable orders is within the employee’s rights.
4) Subordination:
Employees must respect the employer’s authority. Insubordination, ranging from refusal to obey lawful instructions to using rude language, is a breach of contract.
5) Maintaining Bona Fides
Employees must act in good faith, not harming the trust relationship with the employer. Misconduct, such as disclosing trade secrets or dishonesty, can justify dismissal.
Employers often include restraint of trade clauses to prevent employees from competing post-employment. The effect of a restraint of trade is that the employee may not start a business similar to that of the employer or work for the competition after leaving his employer’s service for a specified period and in a specified area. If, however, the employee is conducting a private business in his free time, causing the employer no damage whatsoever, he is acting within his rights and may not be dismissed.
Employees must dedicate work hours to the employer’s business and avoid conflicting interests with other employment.
6) Reasonable Care of Employer’s Property
Employees must use employer’s property carefully; negligence or misuse for personal ends is a breach of contract.
7) Refraining from Misconduct
Employees must follow acceptable practices and avoid misconduct like dishonesty, drunkenness, negligence, incompetence, rudeness, and assault.
Previous misconduct need not be disclosed unless it constitutes fraud under new working conditions, (directly affects their ability to perform the new job or violates trust)
1) Cancellation
When there’s a material breach of contract by the employer, the employee can terminate the contract.
This termination is immediate and is known as summary termination, not requiring notice.
If the breach isn’t material (reduction in status or non-payment of the agreed remuneration), cancellation typically isn’t an option, and the employee may pursue damages instead.
2) Specific Performance
It follows then that specific performance, specifically in the form of reinstatement, is in fact available to the employee.
Reinstatement as a form of specific performance refers to the legal remedy where a court orders that an employee who has been unfairly dismissed or subjected to wrongful termination be restored to their previous position within the company (requires the employer to treat the employment contract as if it had never been terminated)
3) Damages
If an employee suffers financial losses due to an employer’s breach of contract, they can claim damages.
Damages are calculated based on what the employee would have earned if the breach hadn’t occurred.
The employee must mitigate their losses reasonably
4) Refusal to Work
Employees can refuse to work if the employer breaches the contract, such as failing to pay wages.
“No work, no pay” rule.
5) Statutory Remedies
Labour legislation, however, provides for remedies in a variety of instances where an employee does not have to prove breach of contract on the part of the employer, but only that the employer had acted unfairly. The most common of these are unfair dismissals and unfair labour practices for which the LRA prescribes particular remedies, namely reinstatement, re-employment or compensation.
Employees can approach bodies like the Department of Labour or the CCMA (Commission for Conciliation, Mediation and Arbitration) for assistance with claims under the BCEA (Basic Conditions of Employment Act).
