LABOUR LAW LECTURE 4:

EMPLOYER / EMPLOYEE DUTIES & TERMINATION OF

EMPLOYMENT
 DUTIES OF THE EMPLOYER
• The Employer has duties that he/she has to comply with, failure of which
will constitute breach of contract. viz
•To accept the employee into his service:
• Meaning Ee must be provided with work/instructions.
•To provide the employee with work:
• No general obligation to provide work as long as Ee is paid agreed
remuneration; however…
• There is obligation where remuneration is based on amount of work,
where non provision of work will result in reduced status of Ee &
where EE’s earning capacity is linked to amount of work given.
•To provide employee with remuneration for services rendered:
• Er must pay Ee agreed remuneration where Ee has already rendered
services; and
• Er must still pay Ee even if no work is done due to either vis major or
suspension of Ee.
 EMPLOYER DUTIES
• To pay quantum meruit - which is reasonable remuneration for work not
completed:
• Applicable where Ee was bona fide in not completing work or due to
repudiation by Er;
• Based on unjustified enrichment (work already done, therefore Er cannot
unjustly benefit by not paying).
• To provide safe working conditions:
• Includes provision of training, equipment and safe systems which Er is
under obligation to provide;
• @ CL, failure by Er to provide SWC which leads to injury or death of Ee
will mean liability for Er, except in cases where the doctrine of volenti non
fit injuria applies;
• CL changed by Legislation, Er no longer liable (except in specific
circumstances) & Ee can claim from a compensation fund established
through COIDA).
• To comply with statutory duties:
• Er must comply with duties in terms of LRA, BCEA, NMWA, OHASA,
COIDA, UIF, EEA.
 EE REMEDIES FOR BREACH
• Where employer fails to fulfil his duties alternatively comply with statutory
duties, an employee has the following remedies available to him, either
through the Common Law or as statutory remedies:
• Cancellation of the employment contract:
• Only in case of material breach, such as non-payment of remuneration or
reduction in status;
• Cancellation is a summary termination of the contract, without giving due
notice.
• Claiming specific performance:
• @ CL specific performance in the form of reinstatement of a dismissed
employee never order;
• However, LRA provides for reinstatement as a remedy, which is often
granted by the courts;
 EE REMEDIES FOR BREACH
• Claiming damages:
•Ee can claim damages where breach causes ‘actual’ damages, meaning it
must be quantifiable;
•The quantification is done in accordance to the amount the Ee would have
been entitled to had breach not occurred, however, Ee must also mitigate
his/her loses.
• Refusal to work:
• Just as an Er is not obligated to pay Ees where no work has been done,
the same principle is applicable where Er fails to pay Ees – they may
refuse to work until they are paid. (NB! This is not a strike!)
• Statutory remedies:
• Legislation provides remedies where Er violates provisions of legislation,
which provide Ees with alternative to claiming breach of contract;
• Reinstatement/Re-employment or Compensation in terms of LRA, &
approaching the Dpt of Labour alternatively the CCMA in terms of BCEA
where Er has failed to pay wages.
 EMPLOYEE DUTIES
i. To enter into the service of employer/make services available:
• Personal services to be available, as opposed not being utilised;
• No work no pay, unless for illness/death (BCEA applies);
• AWOL/AWOR = breach of contract, may entitle Er to terminate employment;
• Deliberate refusal to work – dismissal (provided it is fair in circumstances).

ii.To warrant his competence and reasonable efficiency:

• Ability tacitly guaranteed = reasonable efficiency/competence;
• Competence depends on capacity engaged in, level of skills, training and
promises made by employee;
• Unsuitable = breach of contract BUT grant opportunity to improve (training);
• Probationary period (fair procedure = continuous evaluation, assistance, guidance
and training);
• Non-disclosure (driver/alcoholic) = breach.
 EMPLOYEE DUTIES
iii. Obey all reasonable and lawful commands:
• Employer exercises authority over employee;
• Ee must obey reasonable instructions punctually;
• Disobedience = breach of contract, which may lead to termination.

iv. Be subordinate:
• Employer has authority over employee;
• Employee must show due respect;
• Disrespect = breach of contract.

v. Work with reasonable care and without negligence:

• Negligent behaviour = breach of contract;
• Personal use of company property = breach of contract;
• Ee must not lose information (which may be of benefit to competitors);
• Keeping safe of trade secrets (Coke).
 EMPLOYEE DUTIES
vi. Act in good faith:
• Non-disclosure of confidential information;
 Of use to competition or use info for personal gain.
• May not compete with Er;
 Restraint of trade (Public interest v freedom of trade).
• Act honestly;
 With employer and employer’s clients.
• Promote business of Er;
 Dedicate normal working hours to employer;
 Not even after hours if interests in conflict with employer.

vii.Refrain from misconduct:

• Ee must work according to acceptable practices, standards & policies & ccomply
with company’s code of conduct, which must be furnished to Ee upon
assumption of duties;
• Must disclose misconduct at previous Er if it may disqualify Ee from new
employment.
 EMPLOYER REMEDIES
i. vi. Summary Dismissal:
• Termination of employment without notice in the case of a material breach of
contract;
• Study and know the common law grounds for summary dismissal (p23);
• Dismissal must still comply with procedural fairness in terms of s188 of the LRA;
• Employee entitled to outstanding remuneration and any statutory entitlements
(leave etc).

ii. Specific performance:

• Force Ee to perform work - Highly unlikely e.g. deserting employee;
• Likely e.g. striking employee.

iii.Claim for damages:

• If employee’s behaviour/negligence causes damages;
• For example - abandoning employment (quantifiable) based on unjustified
enrichment.

iv.Statutory remedies:
• i.t.o BCEA, LRA, EEA e.g. dispute resolution procedures.
 EMPLOYER / EMPLOYEE LIABILITY

DELICTUAL / VICARIOUS LIABILITY:

• A delict is the act/ommission of a person that in a wrongful & culpable
way causes harm to another.
• The wrongdoer has a duty to make compensation for the damage suffered.
While the person prejudiced has a right to claim compensation. As a result,
an obligation between the 2 parties is created.
• What then happens where an employee causes damage to a 3rd
party? Who is liable for that damage?
• Where the above scenario occurs, then we have to turn to the doctrine of
vicarious liability to find which party liability would fall on.
 VICARIOUS LIABILITY
• Common Law doctrine where employer is held liable for the unlawful or
delictual acts of an employee performed during the course and scope of
business & in the furtherance of employer’s interests.
• Based on the principle that the employer, who by its profitable operation
creates a risk of harm to others, has to compensate those who suffer
injury as a result of the wrongful conduct of an employee.
• Doctrine does not mean the employer will have no recourse, depending
on the circumstances; the employer can discipline the employee for
misconduct and even claim repayment in this regard.
Requirements:
i. There must be a valid contract of employment at the time in question;
ii. Ee must acted in course & scope of employment or in furtherance of Er’s
business;
iii. Employee must have committed a delict / caused harm to 3rd party.
 VICARIOUS LIABILITY
Hendrickz v Cutting
 Employee was a lorry driver who stopped at filling station for fuel while
performing his duties.He lit a cigarette which caused a fire resulting in
injuries to the petrol attendant.
 Employer held liable because damage / harm caused while Ee was in the
course and scope of employment.
Bezuidenhout NO v Eskom
 Driver of Eskom truck gave unauthorized lift to passenger (which was
specifically prohibited by the employer).
 Collision occurred and passenger injured, sued employer through vicarious
liability,
 Employer not liable because employee not in the furtherance of employer’s
interests, acted beyond what was authorized.
 VICARIOUS LIABILITY
PE v Ikwezi Municipality & Another
 PE molested by her superior during working hours (X). Where after X was
summoned to a disciplinary hearing and put on unpaid suspension + written warning.
 PE sued both X and municipality arguing that the municipality was vicariously liable.
 Municipality contended that the molestation had nothing to do with X’s duties as an
employee of the municipality. Furthermore, PE had been protected from further harm
as X had been subjected to a disciplinary procedure and punished accordingly by the
municipality.
 Court concurred with municipality that X in molesting PE had been acting for his own
purpose and objectives. However, X was in a position of trust as he was a senior Ee
and PE’s superior. (had control & authority over PE).
 The trust inherent between him and the municipality established a causal link
between his employment and the wrongful conduct. Municipality therefore vicariously
liable.
 ACTIVITY QUESTION
 Mr X works as a driver for a haulage truck company [Master Trucking] which specializes in
delivery of controlled & hazardous substances via the use of tankers. On a trip from JHB to CPT,
X makes a detour via Kimberly to visit his mother. While there, he is involved in a collision, the
tanker overturns, breaks and spills acid onto Mr Y who suffers intense chemical burns.
 Mr Y approaches You as his attorney and wants to know if he has a viable cause of action and
how he should proceed with the matter. Advise Mr Y with particular reference to vicarious
liability [8]

 Step 1: Identify the legal question from set of facts;

 Step 2: Identify the law applicable to legal question & define key terms;

 Step 3: Discuss the relevant law (case law &/or legislation);

 Step 4: Demonstrate a nexus between applicable law and facts;

 Step 5: Apply the law to your facts and reach a conclusion;

 Step 6: Answer the question.

 TERMINATION OF EMPLOYMENT
Common law: Ees could be summarily dismissed/ contract cancelled in
case of a serious breach of contract; or Er concerned could terminate
contracts of by giving required notice (no reason).
Current law: LRA (Chp 8 and Sch 8) – Er has to comply with both
substantive & procedural fairness.

Termination may thus come to being through:

 Effluxion of time:

• Fixed-term contract – no notice;

• Remaining in service after specified period = tacit renewal.
 Agreement:
• Mutual agreement (mutual termination agreement).
 Death of a party:
• Employer = no termination (company still in existence);
• Employee = termination (due to personal nature of services).
 TERMINATION OF EMPLOYMENT
 Insolvency of party:
• Employee = normally not except if insolvency disqualifies employee;
• Employer = sect 38 of Insolvency Act;
 Suspension of contract, Notice to employees;

 Consultations (liquidator/trustee, trade union/employee);

 Ee has preferential claim + severance pay.

 Illness of employee:
• Normally not reason enough, except non-competence = dismissal.
 Impossibility of performance:
• Objectively impossible = no breach of contract.
 Cancellation:
• One party material breach = other party may cancel.
 Redundancy of post:
• No duties from post remain;
• Valid reason but must give sufficient notice.
Completing specific task:

• Akin to a fixed-term contract.
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FRAMEWORK (DU PLESSIS - PART 3 - CH 10)