EMPLOYMENT LAW
B COM HRM
UNIT OUTCOMES
• See page 149
WHY LABOUR LAW?
THE TWO TYPES OF CONTRACT
• Letting and hiring of services
• Locatio Conductio Operarum
• Letting and hiring of work
• Locatio Conductio Operis
EMPLOYEE OR INDEPENDENT CONTRACTOR
Locatio Conductio Operarum
Locatio Conductio Operis
• The letting and hiring of services
(employee)
• The letting and hiring of work
(contractor)
• Puts services at the disposal of the
employer
• Performs a certain piece of work
• Authority, control and supervision of
the employer
• Usually paid per hour, day, week or
month
• Employer vicariously liable for
delicts of employee
• Not under the control or authority
of the employer
• Usually paid per job or per result
• Contractor personally liable for
delicts
SOME CHARACTERISTICS
EMPLOYEE
• Services at employers
disposal
• Can be unpaid
• Employer provides tools
• Services rendered on
permanent basis
• Employer vicariously liable
CONTRACTOR
• No control &
supervision
• Uses own tools
• Work of a physical
nature
• Contractor personally
liable
EMPLOYEES AND CONTRACTORS
• Presumptions created by BCEA (83A) and the LRA
• the manner in which the person works is subject to the control or direction of
another person
• the person's hours of work are subject to the control or direction of another person
• in the case of a person who works for an organisation, the person forms part of that
organisation'
• the person has worked for that other person for an average of at least 40 hours per
month over the last three months
• the person is economically dependent on the other person for whom he or she
works or renders services
• the person is provided with the tools of trade or work equipment by the other person
• the person only works for or renders services to one person
TEST
• Control test
• Organisation test
• Dominant impression
WHY DOES IT MATTER?
• Labour law protects employees
• Independent contractors have to fend for
themselves
THE EMPLOYMENT CONTRACT
• At common law – no formalities
• Section 29 of BCEA prescribes 16 pieces of
information to be provided in writing on
commencement of employment
THE TYPICAL EMPLOYMENT CONTRACT
• Employer details
• Job description
• Rate of pay, overtime etc
• Duration
• Benefits
• Leave
• Working hours
• Deductions
• Policies
• Rules
COMMON LAW DUTIES OF THE EMPLOYER
• To pay the employee (if agreed)
• To provide work (if necessary)
• Not to require employee to do work junior to their status
• Not to force employee to different work than agreed upon
• Not to contract the employee to someone else without
employee consent
COMMON LAW DUTIES OF THE EMPLOYEE
• Make personal services available
• Work faithfully and diligently
• Obey reasonable orders
NOTE:
• A violation of the duty of good faith or any action
which breaks the relationship of trust between
employer and employee could lead to dismissal
• Examples:
• Competing with employer (weekend jobs)
• Criticising the employer on social media
THE CONCEPT OF VICARIOUS LIABILITY
• Generally – no one liable for the delicts of
another, however;
• Employers (and the employee) are liable for the
delicts committed by their employees while
acting in the course and scope of their duties
and in furtherance of the employers interests
REQUIREMENTS FOR LIABILITY
• There must be an employment relationship
• Delict committed in the course of
performance of duties, within scope of
employment and towards furtherance of
employers interests
• Employee must not have been on a frolic of his
own
EMPLOYER LIABILITY FOR I/C DELICTS
• Generally no liability, but employer can be jointly
liable with I/C if:
• Employer negligent
• Employer instructs or ratifies delictual action
• Delict is a result of incomplete instruction by
employer
• Employer fails to take necessary safety measures
LABOUR LEGISLATION
• Basic Conditions of Employment Act
• Labour Relations Act
• Employment Equity Act
• Unemployment Insurance Act
• Occupational Health & Safety Act
• Compensation for Occupational Injuries & Diseases Act
• Etc ……..
BCEA
• Minimum conditions of employment
• Applies to all employees except members of SANDF & intelligence services
• Persons earning over R205 433 exempted from working hours, overtime etc
• Sets maximum working time – 45 hour week
• Provides for overtime – 1 ½ times pay or paid time off
• Overtime is by agreement
• Compressed work week and shift work
• Meal intervals
• Rest periods
• Sunday work
• Night work
BCEA
• Leave
• Maternity, sick leave, family responsibility, annual
• Inform workers of rights – posters
• Record keeping
• Payslips
• Deductions
• Notice period
• 1 week, 2 weeks, 4 weeks
• Certificate of service
• Labour inspectors
LABOUR RELATIONS ACT
• To provide for the prevention and settlement of
disputes between employers and employees and for
the regulation of terms and conditions of
employment by agreement & arbitration
LRA
• Allows for registration of trade unions and employers
organisations
• Allows for collective bargaining councils, industrial
councils etc
• Allows for conciliation boards and mediation &
arbitration
• Establishes the CCMA
LRA
• Provides for collective bargaining – trade unions have
organisational rights
• Attempts to create order in the workplace through
negotiation and process of dispute resolution
• Strikes & lock-outs are a tool to achieve this
• Regulates strikes & lock-outs
STRIKES & LOCK-OUTS
LRA
• Outlaws discrimination in the workplace
• Regulates dismissals
• Fair dismissals
• Only 3 – misconduct, incapacity & operational
requirements
• Unfair dismissals
• See Code of Good Practice (Schedule 8)
• Automatically unfair dismissals
DISMISSALS
• Substantive fairness
• Procedural fairness
Chomp Supermarket fires
Jake for stealing a can of
baked beans.
Is this a fair dismissal?
THE CCMA
• Dispute resolution mechanism
• Conciliation
• Mediation
• Arbitration
BARGAINING COUNCILS
• Industry wide application
• Equal representation of employers and employees
through representative bodies
• Negotiation
• Dispute resolution