Unit 1 - Contract of Employment Flashcards
(47 cards)
1
Q
What is a contract of employment?
A
An agreement between 2 parties ito which one party places his/her potential at the disposal and under the control of the other party, in exchange for some form of remuneration.
2
Q
Define an ‘employer’
A
A person or institution, which, ito a contract of employment, exercises authority over an employee who was has made his/her services available to the employer for remuneration for a determined period
3
Q
Define an ‘employee’
A
A person who, ito a contract of employment for remuneration, makes available his/her services for a period, under authority, to an employer.
4
Q
What the requirements for an employment contract?
A
- Reciprocal contract
- Ito which services are rendered
- Under the authority of the employer
- For remuneration
- For a determined / determinable period
5
Q
Name the general legal principles of contract which are also applicable
A
- Consensus
- Contractual capacity
- Legality and physical possibility
- Formalities
6
Q
Discuss the general legal principle of CONSENSUS
A
- Only reached if there is a valid acceptance of a valid offer of employment
- The e/r and e/e must agree, either expressly, tacitly or impliedly on the contractual consequences which they wish to invoke.
- Consensus should be established wrt the services which will be rendered, as well as the remuneration.
7
Q
Discuss CONTRACTUAL CAPACITY
A
- Both e/r and e/e must have the capacity to enter into the contract
- If an e/e is a minor, parent or guardian should assist
- Mentally ill persons need assistance from their curator
8
Q
Discuss LEGALITY and LEGAL POSSIBILITY
A
- The contract must not be in conflict with any provisions of the common law or any other law or rules of fairness.
- Contract must be capable pf physical performance - the e/e must be able to render the agreed service
- Kylie v CCMA case (LAC especially)
9
Q
Discuss FORMALITIES
A
- No formalities by parties are required by law, unless the parties agree otherwise
10
Q
Which additional elements are applicable to an employment contract? (6)
A
- Intention of parties and interpretation of contract of employment
- Existence of relationship of authority
- Rendering of services in a subordinate capacity
- Control and supervision
- Guidance during performance of services
11
Q
Discuss ‘the intention of parties and interpretation of contract’
A
- In identifying and interpreting, the intention of the e/r and e/e must be established regarding the nature of the contract, the duties of the parties and the duration.
12
Q
Discuss ‘existence of relationship of authority’
A
- Encompasses 3 components:
a. In respect of a subordinate relationship
b. Under the control and supervision
c. Guidance of the employer
13
Q
Discuss ‘rendering of services in a subordinate capacity’
A
- The e/e has a duty to behave in a subordinate manner towards the e/r
- The e/e has a duty to carry out all reasonable instructions and commands. This is an essential consequence of the e/r-e/e relationship.
14
Q
Discuss ‘control and supervision’
A
- Means that control or supervision will be exercised to ascertain whether the duties concerned have been performed and the manner in which they have been carried out
- Control can be exercised in direct or indirect manner
15
Q
Discuss ‘guidance during performance of services’
A
- Subordinate relationship implies that an employer should give guidance to an e/e, if required, iro the manner in which work is to be performed.
- Not always required. Highly specialised persons are employed due to their skill and knowledge.
16
Q
Why is it important to distinguish the contract of employment from similar contracts?
A
- To determine the applicability of certain provisions (i.e. LRA and COIDA),
- The applicability of certain wage regulating measures, and
- The determination of the vicarious liability of an employer.
17
Q
On which criteria have our courts relied to distinguish between employment contracts from related contracts?
A
- The relationship of authority
- “Organisation test”
- Intention of the parties
- Nature of the legal relationship
- “Dominant impression” test
- Mixed/multiple test
18
Q
Which contracts are similar to employment contracts?
A
- Agency
- Location conductio operis
- Partnership
- Lease
19
Q
Is an independent contractor an employee?
A
No - section 213 of LRA
20
Q
Which statutory provision provides a presumption as to who is an employee?
A
Section 200A of the LRA
21
Q
What does s200A state?
A
- Until the contrary is proven, a person who works for, or renders services to, another person, is regarded as an employee, if any one or more of the following are present
a. The manner in which the person WORKS is subject to the CONTROL or direction of another person;
b. The person’s HOURS OF WORK are subject to the control or direction of another person
c. In the case of a person who works for an ORGANISATION, the person forms part of that org.
d. The person works for that person an AVERAGE of at least 40 HOURS per month over last 3 months
e. The person is economically dependent on the other person for whom her renders services
f. The person is PROVIDED WITH TOOLS of trade or work equipment
g. The person only works for ONE PERSON
22
Q
What are the criteria for ascertaining whether a specific contract is indeed a contract of employment?
A
The follow ESSENTIAL FEATURES must be identifiable
- The existence of a relationship of authority
- The remuneration of the employee
- The period of the contract of employment
- The rendering of personal services by the employee
- PAYE tax deductions
23
Q
How is ‘relationship authority’ determined?
A
The question is always whether the e/r exercises control and supervision over the employee while rendering services
24
Q
Discuss the organisation test
A
- It must be established whether or not the person in question is part of the business or company and whether or not his/her activities form an integral part of the business
- Related to 3 components of the subordinate relationship:
a. The permanent nature of the employment relationship
b. The provision of capital goods such as office tools, office equipment, apparatus, a vehicle, and so forth
c. Whether the person has been prohibited from doing similar work for personal gain
25
Which criteria (from case law) may be applied in borderline cases?
- Whether or not the intention of the parties indicates that a specific contract ma be deduced
- What the nature of the legal relationship is between the parties
- The nature and extent of the duties of the e/e
- If characteristics of more than one contract are apparent, what the "dominant impression" is
26
Name 4 contracts related to employment contracts
- Contract of mandate
- Agency
- Contract of work
- Contract of lease
27
Discuss 'contract of mandate'
- It is a reciprocal agreement between a mandatory and an agent (mandatary), ito which the latter executes a specific mandate for payment.
- Usually in the form of personal services (attorney, advocate, physician)
- There are 8 main differences:
a. A mandatary does not render his services under the authority of the mandatory
b. A mandatary does not render services under the control and supervision of the mandatory
c. The intention of the various parties differes wrt the ay in which services will be delivered as well as to the legal figure intended
d. An e/e is part of the e/r's business organisation, whereas the mandatary usually is not
e. An employee may be supplied with equipment, while a mandatary is not
f. An e/e renders his services on a more permanent basis, whereas the mandatary offers services on an ad hoc basis
g. A mandatary usually receives a global amount or is paid commission, and not a salary or wages
h. Certain services would only be associated with e/es or mandataries
28
Discuss 'agency'
- A person is endowed with authority to represent a principle in executing any legal transaction for the principal, unless legal restrictions apply, so that the principal and a 3rd party may acquire all the rights and duties resulting therefrom.
- The notions "employee" and "agent" can at times have the same meaning
- The agent that act obo a principle is not under the authority of his principal. He acts independently and uses his own discretion in the execution of his mandate.
- Differences are the same as that of a mandatary
29
Discuss 'contract of work'
- Locatio conductio operis
- A mutual agreement between an e/r and a contractor ito which the latter undertakes to make his services available wrt a physical material matter to an e/r, for payment
- A contractor who accepts work as a result of such a contract is under an obligation to make an article, produce or build, for payment, without working under the direct supervision of an e/r.
- The only difference between a contract for work and a contract of mandate is the fact that the services are made for different purposes (thus, all differences of mandatary apply)
30
What is the difference between 'contract of lease' and employment?
Contract of lease is the "hiring of objects" and employment is the "hiring of services".
31
What must be kept in mind when drafting an employment contract?
- It must address the SPECIFIC NEEDS of your client.
- You must act in their best interest.
- The BCEA should be the guideline
32
Name 3 specific clauses applicable to this module
1. Confidentiality - Aim is to protect the business during and after employment. Trade secrets, client databases, and patents can be covered in this clause.
2. Restraint of trade - Must be reasonable and justifiable
3. Relocation - Parties address who is responsible for paying for the relocation etc.
33
Discuss notice periods and termination of employment
Ito the BCEA, any party to an employment contract must give to the other WRITTEN NOTICE of termination as follows:
- 1 week, if employed for 4 weeks or less
- 2 weeks, if employed for more than 4 weeks but less than 1 year
- 4 weeks if employed for 1 year or more
34
Are transport allowances, onuses and increases regulated by the BCEA?
No, it is open to negotiation between the parties.
35
What are the normal hours of work?
An e/e may not be made to work more than
- 45 hours per week
- 9 hours per day in a 5-day-work week
- 8 hours per day in a 6-day-work week
36
What are the overtime limits?
An e/e may not work more than 3 hours of overtime per day or 10 hours per week.
- Must be paid at 1.5 x normal wage or may receive time off
37
What is the rest period requirement?
- A daily rest period of 12 consecutive hours
| - Weekly rest period of 36 consecutive hours, which must include Sunday, unless otherwise agreed
38
What is the meal interval requirement?
An e/e is entitled to a 1-hour break after not more than 5 hours work.
- May be reduced to 30 minutes, by agreement between parties.
- If required or permitted to work during this period, remuneration must be paid
39
Sunday work?
Sunday work is voluntary and an e/e cannot be forced to work.
- Double daily wage
- If ordinarily works on a Sunday, shall be paid 1.5 x normal wage
40
Discuss Public Holidays
- Days mentioned in Public Holidays Act must be granted
- Parties can agree to further public holidays
- These days can be exchanged for any other day by agreement.
- If work on Public Holiday, double normal wage
41
What is the annual leave requirement?
- May not be less than 21 consecutive days for full-tie works or by agreement, 1 day for every 17 days worked
- Must be granted not later than 6 months after completion of the period of 12 consecutive months of employment
- May not be granted concurrently with any period of sick leave, not with a period of notice of termination
42
What are the sick leave aspects?
- During sick leave cycle of 36 months, an e/e is entitled to an amount equal to number of days e/e would normally work during a period of 6 weeks.
- During first 6 months, e/e is entitled to 1 day's paid sick leave for every 26 days worked
43
What is the maternity leave requirement?
- E/e is entitled to at least 4 consecutive months' maternity leave
44
Family responsibility leave?
- E/e employed for longer than 4 months and for at least 4 days/week are entitled to take 3 days' FRL during each leave cycle
- When child is born, sick or spouse, parent, grandparent, child, or sibling died
45
Are deductions from remuneration allowed?
BCEA prohibits deducting monies from e/e wages without his written permission
46
Which issues are not regulated by the BCEA?
- Probationary periods
- Right of entry to the e/r's premises
- Afternoons off
- Weekends off
- Pension schemes
47
What is the age limit for employment?
BCEA prohibits any person under the age of 15 to be employed
