Download Theme 4 Common Law Contract of Employment

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A contract of employment is
◦ a reciprocal contract in terms of which an
◦ employee places his services at the disposal of
another person or organisation, as employer,
◦ at a determined or determinable remuneration in
such a way that the
◦ employer is clothed with authority over the
employee and exercises supervision regarding the
rendering of the employee’s services.
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Employment contract must be distinguished
from a contract of letting and hiring of work
from an independent contractor and a
contract of mandate.
Important feature is that the employee is
subject to the authority and supervision of
the employer.
◦ Dominant impression test is applied.
◦ Factors indicating the existence of an employment
relationship:
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Services must be rendered personally.
Fixed hours and wage/salary.
Entitled to benefits.
Degree of control by the employer.
Why do we need to determine who is an
employee?
◦ Legislative protection
◦ Social security benefits
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s83 Basic Conditions of Employment Act
s200A Labour Relations Act
A person who works for, or renders services
to, any other person is presumed, until the
contrary is proved to be an employee,
regardless of the form of the contract, if any
or more of the factors are present.....
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Must comply with the basic requirements for
a valid contract.
Essentialia:
◦ Specified work
 Agreement must be reached on the work the employee
will be required to perform.
 Employee required to perform a different task which
constitutes a reduction in status - Employee can resile
from the contract and claim damages.
◦ Remuneration
 Payable remuneration must be
payment is in cash or kind.
agreed, as well as if
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To accept the employee into his service.
◦ Results in material breach if employer fails to take
employee into his service as rendering of services is a
prerequisite for payment.
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To provide the employee with work.
◦ Work must be provided if the employee’s income is
based on the amount of work he does.
◦ If failure to work brings about reduction in the status of
the employee.
◦ Where the employee has made an undertaking to train
the employee in a certain profession.
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Pay the agreed remuneration.
◦ Law states payment will take place at the end of the
period of service, or on a regular basis if employee is
working for an undetermined period. Trade usage will be
an indicator.
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Pay a quantum meruit.
◦ Non completion or abandoning of work before
completion – no remuneration payable.
◦ Pro rata payment if the employee was bona fide in not
completing the work.
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Provide safe working conditions.
◦ Employer must take reasonable steps to ensure the
safety of its employees. Should failure to do so lead to
the injury of the employee, the employer will be held
liable delictually.
◦ Volenti non fit iniuria
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Comply with statutory duties.
◦ Obligations in terms of legislation.
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Cancellation of the employment contract
Claiming specific performance
Claiming damages
Refusal to work
Statutory remedies
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To make services available.
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To warrant his competence/reasonable efficiency.
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To obey the employer.
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To be subordinate to the employer.
◦ Personal services are made available.
◦ “No work No Pay”
◦ Absence without reason or consent = breach of contract.
◦ Tacit agreement that he is suitable for work = implied warranty of
reasonable efficiency or competence.
◦ Probation period.
◦ Employer is in a position of authority in relation to the employee.
◦ Obey all reasonable instructions punctually. Disobedience =
breach of contract.
◦ Employee is obliged to be subordinate to the employer and show
him due respect.
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To maintain bona fides.
◦ Employee must act in good faith towards the
employer.
◦ Duty of good faith.
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To exercise reasonable care when using the
employer’s property.
◦ Negligent
behaviour
resulting
constitutes breach of contract.
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To refrain from misconduct.
in
damage
◦ Employee must act in accordance with acceptable
practices and standards and policies of his
employer.
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Summary dismissal.
◦ Termination of employee’s services without giving
the prescribed notice.
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Specific performance.
Damages.
Statutory remedies.
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By notice
By effluxion of time
By agreement
Death of the parties
Insolvency of the parties
Illness of the employee
Impossibility of performance
Cancellation
Redundancy of a post
Completing of specific task.
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Employer is held liable for the delicts of the
employee.
Requirements:
◦ Employment relationship
◦ Scope of employment
 Employee occupied with the execution of his duties.
 Acting in scope of employment within or after working
hours.
 Even if employee is committing an illegal act.
 Act committed was prohibited by employer.
 Only partially occupied with interests of employer.
◦ Delict – 5 elements
• Restraint of Trade.....
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Liability of delicts of an independent
contractor:
◦ Where the employer gave incomplete instructions.
◦ Where the employer gave instructions which he
himself was not authorised to do.
◦ Employer gave an unlawful instruction or ratified
such an act.
◦ Where acts are potentially dangerous and employee
neglects to take precautionary steps.