Labour law MRL 3702 Examination notes

Labour law MRL3702 Examination notes Adri is employed by Beauty Salon as hair stylist. In terms of her contract of employment, if she resigns, she will not be allowed to start a similar businesswithin a distance of 50 km radius from Beauty Salon for a period of two years.Discuss whether this will qualify as a restraint of trade agreement. Yes, this will qualify as a restraint of trade agreement. The purpose of a restraint of trade agreement is to protect the employer’s trade secrets, goodwill and business connections. A restraint of trade agreement usually lasts a certain period and covers a certain geographical area. Adri may still make business after two years. Thando is a porter at Bophelo Hospital in Tembisa. Rhoda is admitted to thehospital due to an injury on her left leg. Rhoda falls and injures her right legwhile Thando tries to help her into a wheelchair. Discuss whether Bophelo Hospital will be held vicariously liable for Rhoda’sinjuries. The doctrine of vicarious liability is based on the principle that an employer has to compensate those who suffer damages as a result of the wrongful conduct of its employees. Vicarious liability protects third parties. Yes, Bophelo Hospital will be held liable for Rhoda’s injuries. Give the definition of an employment contract. Voluntary Agreement Between two parties (employer and employees) In terms of which the employee places Labour potential at the disposal and under the control of their employer In exchange for some form of remuneration by the employer Based on agreement - voluntary (no slavery) Has to comply with law for valid contract - Else not binding and enforceable Remuneration can be in any form Contract of employment is a reciprocal contract. The common law contract of employment has often been described as a recipefor exploitation. What view is this based on? Early employment contracts and statutes were referred to as “Master and Servant’ laws, and although they imposed legal obligations on both employer and employee, with criminal penalties for default, they were heavily weighted in favour of the employer. The very nature of the terms, ‘Master’ and ‘Servant,’ gives credence to this. Worldwide labour law transpired as both common law, and the law of contract, had shortcomings in that the playing field and balance of power was too in favour of the employer. Additionally there was a need to incorporate certain human rights that came into effect as countries developed constitutions. This unbalanced situation meant that employers could exploit the employee in a number of areas and thus the shortcomings of common law and contract law meant that employees could be exploited in a number of ways, the following of which would be the most evident:  In the absence of minimum wage agreements, employers would be able to grossly under pay and exploit this, as the prospective employee, who in desperate need for work, would be “forced” to accept the rates on offer. The desperate need for employment affects the very core of supply and demand economic principles, thus favouring the employer rather dramatically.  The common law simply infers rights and obligations on the employee, the manner of discharging these obligations, very much controlled by the employer. With no regulation ofworking hours the employee would literally be a ‘slave.’ And exploitation would be rife.  The common law fails to give employees legal rights to demand better working conditions and the very nature of freedom to contract rights, does not discourage exploitation.  Most significantly, the common law provides no effective protection against termination ofservices and thus job security is essentially obliterated. The very nature of the law of contract would allow an employer to terminate the contract immediately for just about any breach, and the employee would have no recourse to a remedy. Given that most aspects of the employment relationship (e.g. hours of work,sick leave, protection against unfair dismissal etc.) are now regulated by statute, is there any point to entering into a detailed written contract of employment? Although there is a plethora of statutes and legislation governing or determining the employment relationship, the very nature of the workplace environment requires flexibility. Hence legislation protects the employee from exploitation, by entrenching basic rights and obligations, but by the same token offers the employer the option to structure the workplace terms and conditions in order to have an effective and productive business. Thus a contractof employment avoids vagueness, ambiguity and confusion by addressing issues that are not defined or set in stone by legislation. This in turn attempts to avoid parties from being in a continual state of dispute, which would be disruptive to the work environment. Importantly, the very rights inferred by the various statutes and legislation, only apply to the parties to an employment contract, that being the employee and employer. Name three kinds of dispute in which the terms of the individual contract ofservice may be legally relevant.  Restraint of trade  Share Options  Relocation costs In what respects has the BCEA limited the contractual freedom of employersand employees? The BCEA sets forth a minimum standard on a number of key issues relating to the employment relationship. The contractual freedom is impeded in that only terms or conditions that is more favourable than those laid down in the BCEA can supersede the BCEA. So although an employee or potential employee might be willing to accept terms or conditions that are less favourable than those laid down in the BCEA, it is not permissible to contract outside of the law and this may render the contract void. May an employer make an applicant’s undertaking that he will not claim pay ifhe is off sick a condition of appointment? No. The pay for sick leave may however be reduced by agreement provided that the number of days allowed is increased commensurately. In addition the days wage must be at least 75% of the wage ordinarily payable had the employee worked on that day. Not withstanding the above the employee is bound by the BCEA as well as individual companies Policies and Procedures whereby the failure to observe certain procedures would effectively mean the forfeiting of the right to payment, e.g., where the employee fails to provide a sick certificate after two days absence. What remedies are available to an applicant for employment if an employer insists that he should work hours longer than those permitted by the BCEA? The first issue is if an applicant for employment is an employee and therefore entitled to rights under the act. Section 79(1) expressly widens the definition of “employee” to include applicants for employment, thus all rights inferred under Part C, relating to the protection of employees against discrimination, are applicable to applicants for employment. Where an employer is insisting an employee to work longer hours than those permitted by the BCEA, and the employee would probably refuse to take up employment, said employee could turn to the CCMA or a Council, if the parties are in the registered scope of that council. The employee would seek to exercise their rights as inferred by subsection 2(c) (i); Prejudice an employee because of a past, present or anticipatedFailure or refusal to do anything that an employer may not lawfully permit or require an employee to do; The employee can further invoke subsection 3, No person may favour, or promise to favour, an employee in exchange for the employee not exercising a right conferred by this part..............These two sections read together would give the employee the right to refer a dispute for conciliation, should the dispute remain unresolved it may be referred to the labour court for adjudication.