Chapter 3

Question 1

The employment relationship is regulated by three sources of law. What are they?

Answer 1

1. The Constitution
2. Labour legislation
3. The law of contract

Question 2

What is the definition of an employee, as found in s213 of the LRA?

Answer 2

Any person, excluding an independent contractor, who works for another person or for the State, and who receives, or is entitled to receive, any remuneration and any other person who in any manner assists in carrying on or conducting the business of an employer

Question 3

Why is it important to establish whether a person is an employee or an independent contractor?

Answer 3

Because independent contractors are not protected by the Labour Relations Act

Question 4

Name the tests used to determine whether a person is an employee of an independent contractor. Give a brief explanation of each

Answer 4

1. The control test (employment relationship characterized by element of control)
2. The organization test (whether person for part of employer’s organization- dress code, etc)
3. The dominant impression test (looks at main impression of relationship)

Question 5

In 2002 a rebuttable presumption regarding who is an employee was added to the LRA. S200A states:

Answer 5

Pg27

Question 6

What was the importance of the rebuttable presumption?

Answer 6

It incorporates the elements of control, organization, and dominant impression tests and reverses the onus of proof

Question 7

When do the rebuttable presumption apply?

Answer 7

When employees earn less than the prescribed threshold amount

Question 8

Recent court decisions have stated that the true test to determine the nature of the relationship between parties is the …..?

Answer 8

Reality test

Question 9

What is the criteria for the reality test?

Answer 9

1. The employer has a right to supervise or control the employee
2. The employee forms an integral part of the organization of the employer; and
3. The employee is economically dependent on the employer

Question 10

Must all the criteria of the reality test be met in order to determine the nature of the relationship?

Answer 10

No, any one of the factors is sufficient

Question 11

True or false: the existence of an employment relationship is determined by the conclusion of a written contract of employment

Answer 11

False. It is not determined by a written employment contract, despite a provision in the BECA requiring a written contract

Question 12

Written employment contracts can reveal a lot about the nature of the relationship; but the are not conclusive, especially where it is abused by the employer to escape legal obligations. Name cases that demonstrate this

Answer 12

1. Denel v Gerber
2. Building Bargaining Council v Melmons Cabinets CC
3. Dyokhwe v De Kock
4. Murray v Minister of Defense

Question 13

True or false: the existence of an employment relationship is determined by the conclusion of a written contract of employment

Answer 13

False. It is not determined by a written employment contract, despite a provision in the BECA requiring a written contract

Question 14

Written employment contracts can reveal a lot about the nature of the relationship; but the are not conclusive, especially where it is abused by the employer to escape legal obligations. Name cases that demonstrate this

Answer 14

1. Denel v Gerber
2. Building Bargaining Council v Melmons Cabinets CC
3. Dyokhwe v De Kock
4. Murray v Minister of Defense

Question 15

What is the definition of an employer?

Answer 15

An employer is any person that employs or provides work to an employee and that remunerates the employee for such services, or permits such employee to assist it in the carrying on or conducting of its business

Question 16

Why do Temporary Employment Services (TES) or labour-brokering agreements make identification of the employer problematic?

Answer 16

• Because the traditional “methods” for determining the employer do not apply to TES agreements. Such as:
  1. The dominant impression test
  2. The control test
  3. The organization test,
  4. The rebuttable presumptions, and
• The above would indicate that the client is the employer; however the TES is in fact the employer
  5. The reality test

Question 17

The employment contract between a TES and its employees usually contains a ….. clause

Answer 17

Automatic termination

Question 18

Why have automatic termination clauses been regarded as being contrary to the LRA and to public policy?

Answer 18

1. Because it allows for the cancellation of the employment contract if the client cancels the service contract for any reason.
2. And because in theses circumstances the client does not have to conduct disciplinary enquiries, or comply with the requirements for unfair dismissal.
3. As such employees are left vulnerable

Question 19

Name a case that pertains to the impermissibility of automatic termination clauses. What was the justification for the impermissibility?

Answer 19

SATAWU v Fidelity Supercare Cleaning Services Group (Pty) Ltd.

Justification: these clauses limit an employee’s right to fair labour practices

Question 20

Why was the Labour Relations Amendment Act 6 of 2014 introduced?

Answer 20

In order to address the abuses that were occurring

Question 21

Define temporary employment in terms of s198A

Answer 21

Work by an employee for a client:

1. For a period not more than 3 months
2. Irrespective of the length of the contract, as a substitute for an employee of the client that is temporarily absent for, eg maternity leave
3. In a type of work that is classified as a temporary service by a bargaining council agreement, sectoral agreement or ministerial notice

Question 22

True of false: the new s198A applies only to employees earning below the prescribed threshold

Answer 22

True

Question 23

What is the result of employees not fitting into the s198A definition of temporary employment?

Answer 23

The are deemed to be employees of the client and to be employed on an indefinite basis by the client. They are to be treated no worse (in terms of pay, benefits, ect) than a permanent employee performing the same/similar work

Question 24

Are workers that are engaged in illegal contracts of employment entitled to protection by the LRA? Why?

Answer 24

Yes they are. Because a valid contract of employment is not required for workers to be classified as employees and protected by the LRA. The substance of the relationship is more dominant than the legal form it takes

Question 25

Which two cases resolved the uncertainty of whether workers engaged in illegal contracts should be entitled to protection

Answer 25

1. Discovery Health Ltd v CCMA | 2. Kylie v CCMA

Question 26

What are the common-law duties of employees?

Answer 26

1. The duty to enter and remain in service 2. The duty to maintain reasonable competence 3. The duty to further the employer's business interests 4. The duty to be respectful and obedient 5. The duty to behave appropriately

Question 27

What consequence arises should an employee fail to act in accordance with any one of his/her common-law duties?

Answer 27

Failure to comply can give rise to the fair dismissal of the employee

Question 28

What are the common-law duties of employers?

Answer 28

1. They duty to receive the employee into service 2. The duty to pay the agreed remuneration 3. The duty to provide safe working conditions 4. The duty to be vicariously liable to third parties for acts of employees (onus on 3rd party)

Question 29

Define the contract of employment

Answer 29

An employment contract is an agreement between two parties in terms of which on party, the employee, undertakes to places his/her services at the disposal of the other party for an indefinite or agreed period of time in exchange for remuneration

Question 30

What does the BCEA require the written contract of employment to contain?

Answer 30

1. The name and address of the employer 2. The name and occupation of the employee 3. The place of work 4. The date of commencement of employment 5. The employee's ordinary hours and days of work 6. The employee's remuneration and how often it will be paid 7. The rate of payment for overtime work 8. Cash payments or benefits payable and deductions that can be made from salary 9. The leave the employee may take 10. The notice period

Question 31

What are the other requirements (besides information) for valid contract of employment?

Answer 31

1. Employer must ensure that the employee is able to understand the written terms and that it is explained in a language the employee understands 2. Any changes to the contract must be in writing 3. Failure to record the contract in writing does not make it void 4. Employees earning less than the threshold and employed in terms of fixed-term contracts are required to be in writing and to state the reason for the contract

Question 32

What are the rules regarding disciplinary rules and procedures?

Answer 32

1. They may be included in the contract of employment 2. If the rules are contained in the contract, the employee is presumed to be aware of the rules 3. If a rule is breached, it may lead to the employee's dismissal 4. An employer may set any rule and sanction provided that it is reasonable and not contrary to public policy

Question 33

What does a restraint of trade clause do?

Answer 33

Prevents the employee from competing with an employer's business interests after the employment ends

Question 34

May a restraint of trade clause be included in a contract of employment?

Answer 34

Yes if it is reasonable

Question 35

Give an example when a restraint of trade clause would be contrary to public policy

Answer 35

When it prevents an employee from earning a livelihood

Question 36

What will a court consider in determining whether a restraint of trade clause is lawful and reasonable?

Answer 36

1. Whether the employer has a legitimate interest that ought to be protected 2. Whether that interest is being negativity affected 3. The court will then weigh up the conflicting interests of the employer and employee and decide whether to enforce the clause

Question 37

Name two cases that pertain to restraint of trade clauses

Answer 37

1. David Crouch Marketing v Du Plessis | 2. SPP Pumps (Pty) Ltd v Stoop

Question 38

In terms of unlawful terms; a contract of employment may not contain:

Answer 38

1. Terms that are unlawful or contrary to public policy 2. Terms whereby an employee agrees to waive/give up the right to statutory protection 3. Terms that give the employer power to contract out of legislative protections 4. Terms that set working hours in excess of the maximum working hours set by the BCEA 5. Terms that allow the employer to pay employees less than the minimum wage in terms of the LRA

Question 39

May terms that assign decision-making to the discretion of the employer be included in a contract? If so under what condition?

Answer 39

Yes. Provided that they are fair and reasonable. If not, the considerations of fairness and reasonableness will be implied into the contract and override the express term

Question 40

Where an implied term is alleged, courts apply what test to determine the subjective intention of the parties? What are the requirements for an implied term?

Answer 40

The officious bystander test. Requirements: 1. The term must be necessary to make the contract work 2. The term must reflect the presumed intention of the parties, and 3. Must be obvious and capable of precise formulation

Question 41

What is a term implied by law?

Answer 41

An unexpressed provision that the law imports into the contract irrespective of the intention or knowledge of the parties

Question 42

Where an implied term is alleged, courts apply what test to determine the subjective intention of the parties? What are the requirements for an implied term?

Answer 42

The officious bystander test. Requirements: 1. The term must be necessary to make the contract work 2. The term must reflect the presumed intention of the parties, and 3. Must be obvious and capable of precise formulation

Question 43

What is a term implied by law?

Answer 43

An unexpressed provision that the law imports into the contract irrespective of the intention or knowledge of the parties