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CL Statute Conditions of Employment
CL Statute Conditions of Employment
statutory conditions of
employment
Chapter 5
WEEK 2
1. Intro
Background
• One of the main purposes of new labour laws was to streamline dispute
resolution
• Concurrent remedies in statute law, contract and admin law (sometimes also
constitutional law) has led to so-called ‘forum-shopping’
• Jurisdictional issues therefore complex
• If the EE does not act in this way, and their incompetence / inefficiency
causes financial loss, the ER may claim from the EE ito contract or delict.
Vicarious liability
The EE had to be acting within the course and scope of their employment, even
if they were totally at fault, the 3rd party may still claim VL.
Vicarious liability is great because (a) gives 3rd parties the option to claim against
a person (the er) who has more money and (b) it incentivizes the ER to take
positive steps to prevent damage caused by their EEs.
K v Min of S & S (Constitutional Court)
• Facts: K needed help, found 3 policemen, the 3 policemen raped her. She
wanted to claim from the Minister of Safety and Security (vicarious liability) but
the question then became whether or not the policemen were acting in the
course and scope of their duties??
Second test looks
• Scope of vicarious liability under our common law the court adapted the at objectivity ito
common law approach (s39(2)) so that it better encumbered our BOR. the constitutional
norms and
• “an unfaithful servant, instead of devoting time to his master’s service, follows a reasonableness in
society
pursuit of his own, a variety of situations may arise with different legal
consequences”
• Looked at a 2 fold test: (a) what were the employees SUBJECTIVELY
thinking (intent to rape) and (b) OBJECTIVE test as to whether or not their
actions were sufficiently connected to their occupation (the employer’s
concern) Minister of Police v Rabie
• Policemen were on duty - General duty to ensure safety and to prevent crime
• The court found that although the policemen were acting on their own with
dangerous intent, there was a sufficiently close link between their conduct and
their employment as policemen. Requirement (b) is thus thee most
important
Flows from a traditional idea of an employment relationship where the ER
has power and authority over the EE, the EE has a duty to respect this
power and authority.
The ER is entitled to set lawful times and places and particulars of how
work should be done.
Employers, for various reasons, still make use of a contract of employment as foundations for
claims against employees. As a result of this contract, a fiduciary relationship of trust and
confidence arises. This duty is known as the duty of good faith/fiduciary duty and contains the
prohibition of secret profits and conflict of interests. (restraint of trade = 1 e.g.)
This prohibition forms part of the implied terms of the contract of employment. This has the
effect that these terms form part of every contract of employment even in the absence of an
express agreement. A transgression of these terms would usually be treated as misconduct and
the employer then has the option of dismissing the employee or claiming damages.
Phillips v Fieldstone Africa (Pty) Ltd & another (2004) 25 ILJ 1005 (SCA) breach of
a fiduciary duty
A restraint of trade agreement usually provides that upon termination of the contract of
employment (on any grounds), the employee is prohibited from performing similar work in
competition with his former employer within a defined area for a specific period of time.
In Magna alloys v Ellis it was held that such agreements are valid and prima facie
enforceable provided that it is not contrary to public policy. The court further stated
that the central criterion for determining whether such clause is consistent with public
policy is reasonableness.
All rights can be
Restraint of trade clauses limited ito s 36, thus
restraint of trade
needs to meet the s
Contractual agreement 36 criteria
• Proprietary interests (employer’s goodwill and customer connections)
protected by providing that after termination, for certain area, for certain time,
prohibition on competing services in competition with old employer
Basson (1993 A) the court noted that the legitimate interests of an employer
needs protection, however, these interests should be balanced against the
interests of the employee in not being economically active.
– reasonableness 4 factors to consider
• Legitimate interest that needs protection?
• Is the interest being prejudiced?
• Outweighing economic activity
• Public policy on whether the restraint should be applicable
• Reddy (2007 SCA) – reasonableness entails value judgment & 5th factor – does
the restraint go further than necessary to protect the interest?
What is the effect of unfair/unlawful termination of employment on restraint of
trade agreements?
AKA if you were wrongfully terminated, can you get out of your restraint of trade
clause?
This particular question is not settled law as yet. In Info DB Computers the HC relied
on English law and found that in such an instance, the employer could then not rely
on such restraint. In the Reeves case the court doubted the approach of the court in
Info DB Computers but nonetheless considered the circumstances surrounding the
termination of employment as one of the factors. A contract may have been
breached only on a technical level in which case that breach might not outweigh
the ER’s rights ito their proprietary interests.
Always a
Reasonableness will be determined with reference to the interest of both the
balancing
employer and the employee, public policy and surrounding circumstances of interests
Common law
1. Remunerate
2. safe working environment
3. Dignity and respect
1. To remunerate
• Primary obligation
• There is no general statutory minimum wage – leaves room to bargain ito
salary / wage (collective bargaining main tool by the LRA to balance process)
• The BCEA and the Minister of Labour set minimum wage amounts for sectors
not covered by sectoral agreements of bargaining council minimums (i.e.
domestic and farm workers)
• The ER being declared insolvent means all his business contracts (and
employment contracts) are suspended – the Ees don’t have to work and
aren’t entitled to pay – unless the trustee has arranged for them to continue
working.
2. Provide safe working conditions
• Is acting in good faith a reciprocal duty? Implied duty on ers not to ruin the ee – er
relationship.
• Easier to claim breach of reciprocal duties under contract than to find a labour law
remedy
• Impairment of personality ( respect or dignity is denied ) claim ito the actio
iniuriarum.
• Section 23 of the constitution grants this right of fair dealings to every employee.
4. termination, breach of
contract and remedies
Ito the common law
Termination of
employment
The BCEA only requires written particulars of employment; however, the contract may even
be oral or implied. Some terms are brought in by reference (i.e. a contract will state: the
BCEA is applicable to this section)
In this regard, it is important to distinguish between terms and conditions of work and work
practices (i.e. a Christmas function).
The latter may be varied without prior consent.
Employer’s cant unilaterally vary terms and conditions within the contract.
It is NB to note that the remedies for breach of contract may be less advantageous to
employees than statutory ones.
NB homework on the National
Minimum Wage Act
6. Statutory conditions of
employment (BCEA)
THE BCEA 75 OF 1997
There is a wide scope of the application of the Act, however, the Act
does provide some express exclusions.
• Independent contractors,
The minimum rate to be paid for overtime is one and a half times the
normal wage, unless the employee agrees to time off for overtime
worked.
o Rest period – an employee is entitled to a daily rest period of
at least 12 consecutive hours and a weekly rest period of 36
hours
CONDITIONS
the employee does not work more than 45 hours in any week,
more than 10 hours overtime in any week, or
more than five days in a week
Chapter 3 – leave
https://www.news24.com/SouthAfrica/News/working-dads
-can-now-take-paternity-leave-for-10-days-20181127
Exceptions:
Employees who work less than 24 hours a month for an employer
–s19
Such workers will be entitled to leave agreed upon between
employer and employee
The BCEA and wages:
exception re domestic
workers and farm workers
(Sectoral determinations)
• Ee receives a certificate of
service after being
terminated (the ee can
select whether or not they
want the certificate to state
the reason for terminations)
SEVERANCE PAY:
Severance equal to at least one week’s pay for each completed year of
continuous service with the employer
The Labour Court has exclusive jurisdiction in respect of all matters concerning
the BCEA.
Concurrent jurisdiction with the high court to grant civil relief in some cases.
Variations of the BCEA
Can’t be varied:
1.maximum working hours
2.provisions relating to night work
3.provisions relating to sick leave
4.4 months maternity leave
5.not less than 2 weeks annual leave
A collective agreement between trade unions and employers may change conditions
of work, provided such collective agreement is consistent with the purposes of the
Act. It may replace or exclude basic conditions of employment only to the extent
permitted by the Act or a sectoral determination
VARIATION BY WAY OF A MINISTERIAL DETERMINATION:
Application for leave to appeal against an order of the SCA. The applicant
had instituted an action for damages in delict against the Minister,
seeking to hold him vicariously liable for her rape at the hands of three
policemen, employees of the respondent. O'Regan J, for the Court, held
that the common law of vicarious liability must be applied by the courts
in such a way that it is consistent with the terms of the Constitution as
well as the spirit, purport and objects of the Bill of Rights. She concluded
that although the rape was a deviation from the employment duties of
the policemen, there was a sufficiently close connection between their
employment and the wrongful conduct. The Minister was found to be
vicariously liable. The matter was referred back to the Johannesburg High
Court for determination of quantum of damages