MRL3702 NOTES:
Learning unit 2:
Development of the employment contract:
locatio conductio rei: letting and hiring of some physical object or thing
locatio conductio operis related to the letting and hiring of a specific piece of work, for
example, the contract for an independent contractor engaged to do a specific piece of
work.
locatio conductio operarum: related to the letting and hiring of someone’s personal
services in exchange for remuneration, for example a contract of employment.
The continued importance of the employment contract:
(Section 23 of Constitution) Regardless of the shape that the employment relationship
takes, the contract of employment binds the employer and the employee. The
implementation of all labour law regulations begins with the existence of an
employment connection. The labour laws do not apply to a relationship in which there
is no employment link between the parties.
1. If a contract of employment exists, the person who renders service to the
employer in terms of that agreement will be an ‘employee’, not only in
contractual terms, but also for purposes of the application of labour legislation.
2. The contract of employment is an important source of the terms and conditions
of employment of any employee.
3. In cases where a statutory right coincides with an employee’s contractual right
the employee will usually be entitled to elect to enforce either the statutory right
or the contractual right.
Definition of the employee contract:
• an agreement between two parties in terms of which one party (the employee)
works for another (the employer) in exchange for remuneration .
• key elements: voluntary agreement; to work; for remuneration
• the contract of employment has a reciprocal nature: employee works for the
employer willingly for remuneration.
, • Work can be defined as to place one’s labour potential at the disposal, and
under the control, of another.
Element of control:
Certain contemporary employment contracts may provide the employer relatively little
influence over how the worker completes duties, particularly if the worker is highly
qualified or experienced and has a significant amount of responsibility, it’s not
necessary for control on a day-to-day basis or an hour-to-hour basis.
Concluding employment contracts:
Requirements for a valid contract:
• The conclusion and objectives of the contract must be lawful
• There must be consensus between the parties: parties must agree on the same
thing
• Parties must have legal capacity to act
• Performance must be legally possible
• Performance must be physically possible
• If there are formalities, they must be complied with
Negotiation and formalities:
However, the power disparity between the employer and employees is not
acknowledged by the common law employment contract. After all, the common law
emphasizes the establishment of mutually beneficial agreements between employers
and employees as well as the provision of remedies in the event that any side fails to
fulfill its responsibilities. The foundation of common law is the freedom of contract,
which allows both the employer and the employee to agree on terms and
circumstances of employment that work for them. Naturally, in practice, the business
will often give the worker a formal employment contract that has been meticulously
crafted by its legal counsel, and the worker will have no option but to sign it.
Must the contract be in writing:
Not all contracts have to be in wiritng, however in some instances the law requires the
contract to deduced in writing for example for merchant seaman and learnerships.
,Section 29 of the BCEA is a major source of this misunderstanding. According to this
provision, an employer is required to give a worker specific information in writing.
However, it is crucial to remember that the employer is required to furnish information
under section 29 of the BCEA. A written contract is not required to be signed by the
employer and the employee. Of course, it is always wise to sign a written employment
contract for the purpose of clarity and certainty regarding contractual rights and duties.
A verbal employment contract has the same legal force and effect as a written one.
The common law contractual duties of the parties:
• To tender their services to their employer as and when required by their
contracts.
• To work with competence and diligence and not negligently.
• To obey the lawful and reasonable instructions of the of the employer.
• To serve the employer’s interests and act in good faith
The common law contractual duties of the employer:
• To remunerate the employee
• To provide work
• To provide safe working conditions
• To deal fairly with employees
Other terms and conditions of employment:
Freedom to contract and basic conditions of employment
The BCEA and the National Minimum Wage Act 9 of 2018 (NMWA) have an impact on
the parties' ability to freely negotiate terms and conditions of employment. While the
BCEA offers several additional minimum criteria to safeguard workers, the NMWA
establishes a general minimum wage to which all workers are entitled. During the
collective bargaining process, terms and conditions of employment may also be
discussed. Individual employment contracts may differ from collective agreements
reached via this procedure.
, Terms and conditions of employment
A legislation, a collective agreement, common law implied terms, or the terms agreed
upon by the parties (verbally, in writing, or via their actions) are some of the sources
from which an employee's terms and conditions of employment are formed.
The job description, working hours, leave, sick leave, notice period for termination,
compensation, the method and timing of payment, and other responsibilities of both
the employer and the employee are all included in the terms and conditions of
employment. There are only a few methods to alter the terms and conditions stated in
an employment contract: individually with an employee; collectively; or by operation of
law, such as when the Minister of Labor makes a sectoral finding under section 50 of
the BCEA.
Restraint of trade:
A clause in restraint of trade is one that, for a certain amount of time and within a
predetermined region after leaving employment, prohibits an employee from practicing
their trade, profession, or calling, or from participating in the same commercial
endeavour as the employer.
The public policy standard must be applied when evaluating the restraint of trade
provision. The nature, extent, and duration of the restraint, as well as factors specific
to the parties and their respective bargaining powers and interests, are among the
many factors a court should consider when determining whether or not a trade
restriction or restraint amounts to an unreasonable limitation on an individual's
freedom to trade.
It should be noted that a court will not enforce a restriction of commerce provision just
to ban competition or to stop an employee from applying their own expertise; an
employee cannot be stopped from utilizing their own brains. Even if they are
specialized, the talents an employee gains while honing their craft do not represent a
previous employer's protectable interest.
Learning unit 2:
Development of the employment contract:
locatio conductio rei: letting and hiring of some physical object or thing
locatio conductio operis related to the letting and hiring of a specific piece of work, for
example, the contract for an independent contractor engaged to do a specific piece of
work.
locatio conductio operarum: related to the letting and hiring of someone’s personal
services in exchange for remuneration, for example a contract of employment.
The continued importance of the employment contract:
(Section 23 of Constitution) Regardless of the shape that the employment relationship
takes, the contract of employment binds the employer and the employee. The
implementation of all labour law regulations begins with the existence of an
employment connection. The labour laws do not apply to a relationship in which there
is no employment link between the parties.
1. If a contract of employment exists, the person who renders service to the
employer in terms of that agreement will be an ‘employee’, not only in
contractual terms, but also for purposes of the application of labour legislation.
2. The contract of employment is an important source of the terms and conditions
of employment of any employee.
3. In cases where a statutory right coincides with an employee’s contractual right
the employee will usually be entitled to elect to enforce either the statutory right
or the contractual right.
Definition of the employee contract:
• an agreement between two parties in terms of which one party (the employee)
works for another (the employer) in exchange for remuneration .
• key elements: voluntary agreement; to work; for remuneration
• the contract of employment has a reciprocal nature: employee works for the
employer willingly for remuneration.
, • Work can be defined as to place one’s labour potential at the disposal, and
under the control, of another.
Element of control:
Certain contemporary employment contracts may provide the employer relatively little
influence over how the worker completes duties, particularly if the worker is highly
qualified or experienced and has a significant amount of responsibility, it’s not
necessary for control on a day-to-day basis or an hour-to-hour basis.
Concluding employment contracts:
Requirements for a valid contract:
• The conclusion and objectives of the contract must be lawful
• There must be consensus between the parties: parties must agree on the same
thing
• Parties must have legal capacity to act
• Performance must be legally possible
• Performance must be physically possible
• If there are formalities, they must be complied with
Negotiation and formalities:
However, the power disparity between the employer and employees is not
acknowledged by the common law employment contract. After all, the common law
emphasizes the establishment of mutually beneficial agreements between employers
and employees as well as the provision of remedies in the event that any side fails to
fulfill its responsibilities. The foundation of common law is the freedom of contract,
which allows both the employer and the employee to agree on terms and
circumstances of employment that work for them. Naturally, in practice, the business
will often give the worker a formal employment contract that has been meticulously
crafted by its legal counsel, and the worker will have no option but to sign it.
Must the contract be in writing:
Not all contracts have to be in wiritng, however in some instances the law requires the
contract to deduced in writing for example for merchant seaman and learnerships.
,Section 29 of the BCEA is a major source of this misunderstanding. According to this
provision, an employer is required to give a worker specific information in writing.
However, it is crucial to remember that the employer is required to furnish information
under section 29 of the BCEA. A written contract is not required to be signed by the
employer and the employee. Of course, it is always wise to sign a written employment
contract for the purpose of clarity and certainty regarding contractual rights and duties.
A verbal employment contract has the same legal force and effect as a written one.
The common law contractual duties of the parties:
• To tender their services to their employer as and when required by their
contracts.
• To work with competence and diligence and not negligently.
• To obey the lawful and reasonable instructions of the of the employer.
• To serve the employer’s interests and act in good faith
The common law contractual duties of the employer:
• To remunerate the employee
• To provide work
• To provide safe working conditions
• To deal fairly with employees
Other terms and conditions of employment:
Freedom to contract and basic conditions of employment
The BCEA and the National Minimum Wage Act 9 of 2018 (NMWA) have an impact on
the parties' ability to freely negotiate terms and conditions of employment. While the
BCEA offers several additional minimum criteria to safeguard workers, the NMWA
establishes a general minimum wage to which all workers are entitled. During the
collective bargaining process, terms and conditions of employment may also be
discussed. Individual employment contracts may differ from collective agreements
reached via this procedure.
, Terms and conditions of employment
A legislation, a collective agreement, common law implied terms, or the terms agreed
upon by the parties (verbally, in writing, or via their actions) are some of the sources
from which an employee's terms and conditions of employment are formed.
The job description, working hours, leave, sick leave, notice period for termination,
compensation, the method and timing of payment, and other responsibilities of both
the employer and the employee are all included in the terms and conditions of
employment. There are only a few methods to alter the terms and conditions stated in
an employment contract: individually with an employee; collectively; or by operation of
law, such as when the Minister of Labor makes a sectoral finding under section 50 of
the BCEA.
Restraint of trade:
A clause in restraint of trade is one that, for a certain amount of time and within a
predetermined region after leaving employment, prohibits an employee from practicing
their trade, profession, or calling, or from participating in the same commercial
endeavour as the employer.
The public policy standard must be applied when evaluating the restraint of trade
provision. The nature, extent, and duration of the restraint, as well as factors specific
to the parties and their respective bargaining powers and interests, are among the
many factors a court should consider when determining whether or not a trade
restriction or restraint amounts to an unreasonable limitation on an individual's
freedom to trade.
It should be noted that a court will not enforce a restriction of commerce provision just
to ban competition or to stop an employee from applying their own expertise; an
employee cannot be stopped from utilizing their own brains. Even if they are
specialized, the talents an employee gains while honing their craft do not represent a
previous employer's protectable interest.
