EMPLOYMENT LAWB COM HRM

UNIT OUTCOMES

• See page 149

WHY LABOUR LAW?

THE UNEVEN RELATIONSHIP

THE TWO TYPES OF CONTRACT

• Letting and hiring of services• Locatio Conductio Operarum

• Letting and hiring of work• Locatio Conductio Operis

EMPLOYEE OR INDEPENDENT CONTRACTORLocatio Conductio

Operarum

• The letting and hiring of services (employee)

• Puts services at the disposal of the employer

• Authority, control and supervision of the employer

• Usually paid per hour, day, week or month

• Employer vicariously liable for delicts of employee

Locatio Conductio Operis

• The letting and hiring of work (contractor)

• Performs a certain piece of work

• 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