MRL3702 STUDY UNIT 2 - THE IMPACT OF COMMON LAW ON CONTRACTS OF EMPLOYMENT 100% CORRECTLY ANSWERED.

MRL3702 STUDY UNIT 2 - THE IMPACT OF COMMON LAW ON CONTRACTS OF EMPLOYMENT 100% CORRECTLY ANSWERED. REQUIREMENTS FOR VALID CONTRACT OF EMPLOYMENT - CORRECT ANSWER-1 Both parties mus agree 2 they must have capacity to enter into the contract 3 the contract must be lawful and possible to perform 4 where there are formalities that were agreed upon by parties all formalities must have been satisfied. DUTIES OF EMPLOYERS - CORRECT ANSWER-- to remunerate the employee (common law does not provide for paid leave) - does not prescribe form remuneration must take. - to provide employee with work - provide safe working conditions -to deal fairly with the employee - DUTIES OF EMPLOYEES - CORRECT ANSWER-- to render services to the employer - to work competently and diligently - to obey lawful and reasonable instructions - to serve the employer's interests and act in good faith DOCTRINE OF VICARIOUS LIABILITY - CORRECT ANSWER-An employer is liable for the unlawful and delictual acts of an employee performed during the course of business. Operation of this doctrine is regulated by the common law and not by labour legislation. Vicarious liability thus protects third parties IN ORDER FOR THE EMPLOYER TO BE HELD LIABLE THE FOLLOWING THREE REQUIREMENTS MUST BE MET - CORRECT ANSWER-1. there must be a contract of employment 2. the employee must have acted in the course and scope of employment 3. the employee must have committed a delict BEZUIDENHOUT NO v ESKOM - CORRECT ANSWER-1. employee provided with a trust, marked as Eskom property for purpose of carrying out his duties 2. Employee had been expressly prohibited from giving lifts to any person without the permission of his superiors 3. Employee offered a lift to hitchhiker and cause negligent accident during which passenger suffered severe head injuries. 4. SCA held that the instruction not to carry passengers place a limitation on the scope of employment. 5. Employer was not vicariously liable for the injuries sustained by the unauthorized passenger because: "the driver knew perfectly well that he was prohibited from giving a lift and had no intention of furthering him aster's affairs by doing so, and the reality was that the passengers presence added nothing to the interest of the employer in the proper administration of its service." GENERAL CONTRACT PRINCIPLES - CORRECT ANSWER-1. Consensus between the parties 2. parties to the contract must have capacity to act 3. the agreement must be legally possible 4. performance under the agreement must be physically possible 5. if there are formalities in terms of the contract they must be met INFORMATION WHICH MUST BE GIVEN TO THE EMPLOYEE IN WRITING INCLUDES - CORRECT ANSWER-1. full name and address of the employer 2. name and occupation of employee 3. place of work 4. date on which employment began 5. employees ordinary days and hours of work 6. employees wages 7. rate of pay for overtime work 8. frequency of remuneration 9. any deductions to me made from the employee's remuneration 10. the leave to which the employee is entitled these written particulars must be kept for three years after the termination of the employment contract REMEDIES FOR BREACH OF CONTRACT - CORRECT ANSWER-In terms of LRA a breach by employer would probably amount to an unfair labour practice, unfair discrimination or an unfair dismissal. If the employee breaches the contract, it would probably amount to misconduct An employee who chooses to claim common law damages based on breach of contract will approach the High Court. An employee who's claim is based on unfair dismissal will approach the CCMA. . A Claim based on a breach of section 23(1) of the Constitution will be brought before the High Court or Constutional Court. RESTRAINT OF TRADE - CORRECT ANSWER-The purpose of a restraint of trade agreement is to protect the employer's trade secrets, goodwill and business connections. WHEN DETERMINING IF A RESTRAINT OF TRADE IS ENFORCEABLE A COURT WILL BALANCE THE FOLLOWING - CORRECT ANSWER-Public interest which requires parties to comply with contractual obligations even these are unreasonable or unfair VERSUS The right of all persons to be permitted as far as possible to engage in commerce or the professions of their own choice. MAGNA ALLOYS & RESEARCH SA PTY LTD v ELLIS - CORRECT ANSWER-Court held that a restraint of trade agreement was valid and enforceable unless it was contrary to public policy, which it would be if it is unreasonable. QUESTIONS IN DETERMINING REASONABLESS ARE OF RESTRAINT OF TRADE ARE: - CORRECT ANSWER-1. Is there an interest deserving of protection at the termination of the agreement 2. is the interest being prejudiced 3. if so, how does the interest weigh up against the interests of the other party 4. is there another facet of public policy apart from the relationship between the parties which requires that the restraint should either be enforced or dissalowed 5. Is the restraint wider than necessary to protect the protect able interest? IMPORTANT FACTORS TO CONSIDER (restraint of trade) - CORRECT ANSWER-1. the area within which the restraint of trade applies 2. the period of the restraint and whether the employer is not merely trying to prohibit the ex-employee form using his/her skills and/or experience to earn a living. An employer who unfairly dismisses and employee who is subjected to a restraint clause will not be allowed to benefit from that restraint. CHANGES TO TERMS AND CONDITIONS OF EMPLOYMENT - CORRECT ANSWER-An employer may not unilaterally change terms and conditions of employment as that would amount to breach of contract. T&C OF EMPLOYMENT CONTRACT CAN BE LAWFULLY CHANGED IN THE FOLLOWING WAYS: - CORRECT ANSWER-1. by agreement between the employer and employee or in line with the method prescribed in the contract of employment 2. by means of a collective agreement between the employer and a trade union 3. by operation of law, for example, the BCEA and 4. through a sectoral determination issued by the MoL. WHAT ARE THE REQUIREMENTS FOR A VALID CONTRACT OF EMPLOYMENT - CORRECT ANSWER-a) The parties to the contract must have an agreement about the work the employee is employed to do and remuneration for that work. b) The parties to the contract must have capacity to act c) The agreement must be legally possible d) Performance under the agreement must be physically possible e) if any formalities are prescribed by the law for the formation of the contract or if the parties themselves have agreed about certain formalities, then those formalities must be satisfied.