Topic 2 : Contract of Employment

Question 1

What is the basis for the employment contract?

Answer 1

Even though labour law is mostly regulated by legislation the employee contract is still important for various reasons.
1. It is the foundation of the employee-employer relationship.
No relationship, rules of legislation do not apply.
3. Mostly rely on breach of rights in legislation but can also be breach of contract.

Question 2

Why is the employment contract still important today?

Answer 2

1. Defined as employee for the purpose of the contract as well as for legislation purposes.
2. Important source for terms and conditions (however limited by legislation).
   3.Can elect to either enforce the contractual right, the statutory right or both.

Question 3

Why would you not rely on contractual breach?

Answer 3

The contractual right needs to exist and be breached and this is not always the case. The statutory procedures are also quick and inexpensive.

Question 4

Definition of an employment contract.

Answer 4

1. Voluntary agreement
2. between 2 parties
3. in terms of which the employee places their personal services or labour potential to perform a certain task/s
4. at the disposal and under the control of the employer
5. in exchange for some form of remuneration - money or payments in kind

Question 5

What do we mean by terms and conditions of employment?

Answer 5

1. Terms agreed to by the parties - express terms
2. Common law implied terms - naturalia
3. Statute
4. Applicable collective agreement

Question 6

What terms are included in a contract?

Answer 6

Essentialia - agreed upon by parties to render a employment contract
Naturalia - implied by law
Implied duties from the common law

Question 7

What are the naturalia of a contract under the common law for the employee? Duties of employee

Answer 7

1. To enter into and remain in service (tender service)
2. To work diligently and competently
3. Duty of respect and to obey lawful instructions
4. To render services in good faith and promote the interests of the employer

Question 8

What are the implied duties of the employer under the common law?

Answer 8

1. To remunerate the employee
2. To provide safe working conditions
3. To treat the employee with respect and dignity
4. In general, no duty to prove work
5. General duty of fair dealing? (See above)

Question 9

2 avenues for employer to follow to amend terms and conditions if employees do not consent:

Answer 9

Lock-out to force employees to consent
Lawfully and fairly terminate their contracts of employment and then require new employees to consent to those new terms and conditions

Question 10

S187(1)(c) LRA

Answer 10

It is an automatically unfair dismissal to dismiss an employee where the reason for the dismissal is the ‘employee’s refusal to accept a demand in respect of any matter of mutual interest’

Question 11

What is a restraint of trade?

Answer 11

Applies where employment has terminated;
Prohibits ex-employee from doing something (activity - typically working in same field), in a certain area for a certain time;

Question 12

How is reasonableness determined in a restraint of trade?

Answer 12

Interest to be protected
Is the interest prejudiced by the other party
Look at public policy
Wider than necessary

Question 13

Protectable interest?

Answer 13

Confidential information, trade secrets, trade connection, sensitive information, customer information

Question 14

What is vicarious liability?

Answer 14

Employer can be held liable in delict for the wrongs committed by an employee in the course and scope of their duties = faultless delictual liability.

Question 15

Test for vicarious liability and case it was set out in?

Answer 15

NK v Minister of Safety & Security
Even where act committed solely in the employee’s interests, employer could be liable if there is a sufficiently close link to the employer’s interests or business - policemen who raped a woman

Question 16

What are the remedies for breach of contract?

Answer 16

Accept the repudiation and cancelling the contract summarily or claim specific performance.

Question 16

What are the forms of breach of contract?

Answer 16

Less serious and serious which will be a material term of the contract - goes to the heart of the contract. Employer does not pay or employee refuse to work.