Employment Flashcards
Employment Definition:
Employment is a contract in terms of which one party (the employee), in return for payment of remuneration by the other party (the employer), puts his personal services at the disposal of the employer in such a way that the employer is entitled to define his duties and, at least to some extent, to control the manner in which he discharges them.
Hoffman v SAA
Refusal to employ H as H was HIV+
Stoje v UKZN
Male lecturer was unsuccessful in applying for a position.
Argued that it was discrimination based on race and language.
Court- university was justified as he could not speak English fluently and had insufficient teaching experience.
Employer Equity Act
Every designated employer must implement affirmative action for people from the designated groups:
- black people
- women
- disabled
Must be a citizen of SA by birth or descent
OR
Became a citizen by naturalisation before 27 April 1994
OR
apartheid policies had stopped someone from becoming a resident and as such they could only become a resident after 27 April 1994
Elements of employment
- contact
- remuneration
- personal services
- services defined and controlled by employer
- formalities
S213 of the LRA and s1 of the BCEA:
Employee is defined as:
(a) 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.
(b) any other person who in any manner assists the carrying on or conducting of business of an employer and employed and employment have meanings corresponding to that of employee.
Remuneration
All employees of the employer are entitled to be paid.
- can be in goods, in money or ie residential accommodation
- does not need to be fixed but must have an objective standard, ie. commission
- Common law: parties free to agree but do have minimum wages in terms of the statute.
- Also no discrimination or differential remuneration based on factors other than expertise or performance.
- no differential remuneration based on race or gender
Personal services
Object is the rendering of services between employer and employee.
- employee renders services personally.
- the employer may reach and agreement with the employee on what type of work it wishes to have the employee render.
- do not need to spell out the duties in detail.
Services defined and controlled by the employer:
Employer can prescribe to the employee:
- what to do
- when and where to do it
- how to do it
The courts use a ‘dominant impression test’ to prove whether it is a service contract or an employment contract.
Why would you rather be in an employment contract than that of a service contract?
- implied consequence
- statutory protection
- delict
Dominant impression test:
Considers factors such as:
- control
- supervision
- economic dependence
- role in the organisation
Factors include:
- paid annual sick leave
- work from the employer’s fixed premises
- have a staff number etc
Court case: particular degree of supervision and control over the employees activities indicated that there may be a relationship of employment
FPS Ltd v Trident Construction (Pty) Ltd
- no salary, only commission
- used own work vehicle and set their own working hours
- written contract: had to carry out assigned functions, obey reasonable directions, account for all amounts received by clients, medical aid, sickness and accident scheme.
Court ruled that there was employment.
Case Law: Written agreement - agent to canvass for insurance
Supervision and control over the employees is a determining factor of an employment relationship.
Niselow v Liberty Life Association of Africa Ltd
Features of the agreement:
full-time, all documents and applications for insurance belonged to L, N had to become a member of L’s death and retirement fund, agreement would terminate on L’s death or retirement.
Other features:
N had to have satisfactory knowledge and competence in L’s products, remuneration was commission-based, N could choose their own working hours.
Court held that the latter features were decisive. Parties did not intend to have an employment contract, lack of supervision was the decisive factor.
Case Law:
Were the foreign language interpreters employees or independent service providers?
Beya v General Public Service Sectoral Bargaining Council
Facts:
no written contract
no prescribed working hours
not required to report for work
worked only as and when required
no employment benefits, no deductions
not supervised or subject to discipline of the Department
Free to provide interpretation services to third parties
Dominant impression test:
Distinguish employment contracts from other contracts.
because if it is an employment contract, the employer can be held vicariously liable for delicts committed by the employee but not by an independent contractor.
