Labour Law

13 February 2024
Topic 1: Introduction to Labour law
Sexual harassment 15 marker in test!! How does the law go about this and why does it
keep on happening
Group assignment:
 Focus: Engage in process of collective bargaining, trade unions.
 Process trade union
 Write collective labour law
 Drives wages up and employment goes down
27 February 2024
1: APPROACH TO CHAPTER 2 (CONTRACT) AND CHAPTER 4 (MINIMUM
STANDARDS
LEGISLATION
Terms and Conditions of employment 5 marker in test any one can be asked
• Chapter 2 ( will be questions in test about chapter 2 )
Have a good understanding of what is a contract what makes an employment contract
unique, what makes an employment contract an employment contract.
• Labour law today largely legislative in nature, but contract still important –
see 2.1.2:
• contract makes you employee for purposes of legislation;
• it is an important source of terms and conditions of employment; and,
importantly,
• employee retains choice to challenge employer conduct on the basis of
common law (breach of contract) (in which case section 77(3) of the
BCEA gives concurrent jurisdiction to HC/ LC); and/ or legislation
(the unfairness of the employer’s conduct - as unfair labour practice,
unfair dismissal, or breach of other right in legislation).
• You have to understand the basics of contract law:
• Def of employment contract
• Content: Express terms, naturalia (implied terms) of employment
contract (esp duties of employee)
• Changes to contract
 • Breach of contract and remedies for breach
• Termination of contract and its relationship with unfair dismissal law
• Also vicarious liability
• Restraint of trade agreements ( this were employers reach agreement
with employee) ( valid as long as they are reasonable )
• And read Moyo, Baloyi and Ikwezi/ Beyers Naude cases
• Chapter 4
• Understand how minimum standards legislation (BCEA/ NMWA) works
• For purposes of test: self-study on topics contained in legislation (mentioned
below)
2: When reading the Baloyi case
• COO of Public Protector’s office employed on five year fixed term contract, subject
to six months’ probation.
• After probation, employee informed appointment will not be confirmed.
• Employee challenges dismissal not on basis of unfairness ito labour legislation, but,
among others on the basis of unlawfulness (breach of contract)
• High Court declines jurisdiction – says matter essentially a labour matter, only Labour
Court has jurisdiction – ruling on jurisdiction on appeal to CC
• Constitutional Court:
• Jurisdiction is based on applicant’s pleadings (par 33); should not get confused
between jurisdiction and ‘prospects of success’ (par 42)
• Part of applicant’s case clearly based on breach of contract (par 34)
• Same set of facts may give rise to different causes of action (par 38) – it
remains choice of applicant (par 40)
• Mere fact that it is an ‘employment dispute’ does not exclude jurisdiction of
High Court (par 45)
• Contractual rights exist independently of LRA (par 46)
• Concurrent jurisdiction between Labour Court and civil courts in contractual
disputes (par 47)
• Therefore: High Court erred – does have jurisdiction
• Court confirmed that it was the employees choice to go into labour or breach
of contract
3: When reading Moyo case ( example of employee brining a contractual case ) Also
gives very nice explanation of remedies available
- Big reason why he went on basis of contract entitled to more
compensation. Because in labour court limited to 12 months pay
• Headlines in the past years: Old Mutual vs their ex-CEO
• Bear in mind this was appeal in application for urgent interim interdict (application to
get job back) – Moyo was successful in original application.
• CEO (earning 35,5 million in 2018) also shareholder and director of another company
(NMT) that owes Old Mutual 65.9 million (as preference share funder). NMT then
receives payment, but does not pay Old Mutual, declares ordinary dividend (and
Moyo directly and indirectly pockets 28 million). Old Mutual suspends and terminates
Moyo’s services on 6 months’ notice as provided for by contract (but pays him for the
six months and informs him not to come to work).
• Case important for three reasons (chapters 1 and 2):
• employee used contractual remedy instead of ‘unfair dismissal’ in legislation
(see chapter 2);
• the influence of Constitution on contract law (par 59 to 62 – no self-standing
implied common law right to fairness)
• what the contractual remedies are (esp specific performance – paras 85-95)
(see chapter 2);
• Moyo loses
4: THE CONTRACT AS A SOURCE OF TERMS AND CONDITIONS OF
EMPLOYMENT
• What do we mean by ‘terms and conditions of employment’? (ELL 2.5.2, first two
paragraphs)
• Sources of terms and conditions and their interaction (ELL par 4.1):
• A) Contract (common law)
• Express terms
• Terms implied by the common law
• Terms of an individual employment contract can be varied by means
of a collective agreement concluded between a trade union and an
employer (section 23(3) LRA)
• B) Legislation – here we will focus on the BCEA and the NMWA
• Provides for a ‘floor of rights’ – no less favourable terms may be
included in an individual employment contract
 • Sec 49 BCEA – variation of BCEA rights (see later)
• Interaction between common law, legislation and collective bargaining in
setting terms and conditions – ELL 2.5.1
• [Constitution – note that the courts have to develop the common law in line
with the BoR (specifically sec 23 right to fair labour practices) to the extent
that the legislation does not give effect to the relevant right]
• May require the courts to recognise an implied term of fairness in the
common law employment contract in such cases?
• Murray, McKenzie, Moyo, Nganezi
5: A) CONTRACTUAL TERMS
• DEFINITION OF AN EMPLOYMENT CONTRACT (ELL 2.2):
• Essentialia:
• Rendering of personal services
• Payment of remuneration
• Element of control or supervision on the part of the employer
• Reciprocal contract – see e.g. ‘no work no pay’ in the context of strike action by
employees
• Basis of a contract is CONSENSUS – Read p 54-55 for examples where consensus
was lacking
• A contract is made up of express, tacit and implied terms
• NOTE that there is no requirement for written employment contract (see s 29 BCEA)
• Implied terms = naturalia, read into the contract through working of the law
(common law); no agreement (consensus) required between employer and employee
for these terms to apply
• A number of implied duties on employee and employer derived from the common law
(see next slide)
• Also certain doctrines and principles of the common law applicable
• E.g. doctrine of vicarious liability (employer liable for wrongful conduct by
employee committed in the scope of his or her employment)
• The Employment Equity Act has also introduced a statutory form of
vicarious liability for the employer i.r.o. unfair discrimination against
an employee by a fellow employee
• E.g. in sexual harassment cases
 • Restraint of trade doctrine
• Also, remember that the common law rules regarding termination of the contract and
breach of contract apply (including the remedies – specific performance or
cancellation and damages)
6: NATURALIA OF THE CONTRACT
Pod these rights and duties become part of the relationship
• Par 2.4 Ess Lab Law
• Implied duties of the employee under the common law: ( take note of these )
• To enter into and remain in service = go to work etc
• To work diligently and competently= (interesting one)
• Duty of respect and to obey lawful instructions
• To render services in good faith and promote the interests of the employer –
most important, breach (if intentional or negligent) usually justifies dismissal.
Note the difference between a fiduciary duty and the general duty to act in
good faith. ( holy grail of employment)
NB: If employee seriously breaches these duties, employer may terminate lawfully (at
common law), but such termination is also a ‘dismissal’ and has to be fair (in terms of
legislation). In practice these duties are enforced through steps taken by the employer based
on misconduct (see chapter 7) where breach is intentional or negligent; or incapacity (see
chapter 8) where breach is due to no fault, but incompetence or ill health.
• Implied duties of the employer under the common law:
• To remunerate the employee
• To provide safe working conditions
• To treat the employee with respect and dignity
• In general, no duty to prove work
• General duty of fair dealing? (See above)
7: VARIATION OF TERMS AND CONDITIONS OF EMPLOYMENT
Read p. 65-66
• Generally, employers may not unilaterally vary terms and conditions of employment
• Requires employees’ consent (consensus)
• Distinguish terms and conditions of employment from work practices
• Employers have broad discretion to unilaterally amend work practices
 • Terms and conditions for which provision for amendment is made in the
contract = employer must follow the terms of the contract in amending
(individual contract) or through collective bargaining
• Employer must seek employees’ consent to amend terms and conditions of
employment
• 2 avenues for employer to follow to amend terms and conditions if employees
do not consent:
• Lock-out to force employees to consent
• Lawfully and fairly terminate their contracts of employment and then
require new employees to consent to those new terms and conditions
• But see s 187(1)(c) LRA:
• It is an automatically unfair dismissal to dismiss an employee where
the reason for the dismissal is the ‘employee’s refusal to accept a
demand in respect of any matter of mutual interest’
• Where employer has a discretion to amend terms provided for in the contract, the
courts have held that such a discretion must be exercised reasonably
• Amendment of terms and conditions by means of collective agreement:
• LRA s 23(3)
• Terms of a collective agreement vary, where applicable, the terms of an
individual contract of employment
8: COMMON LAW PRINCIPLES APPLICABLE
• Restraint of trade – study the principles (pp 66-72) and see the problem set:
• Applies where employment has terminated;
• Prohibits ex-employee from doing something (activity - typically working in
same field), in a certain area for a certain time;
• There has to be protectable interest (confidential information/ trade secrets)
and has to be reasonable in all three respects (onus on employee to show
unreasonableness)
• Vicarious liability: ( NB ) Touches on test question of sexual harassment
• A sufficiently close connection
• Read p. 72-76
• Employer can be held liable in delict for the wrongs committed by an
employee in the course and scope of their duties
 • Tricky question whether delict committed in the course of duties (so-called
deviation cases)
• See NK v Minister of Safety & Security (2005)
• Even where act committed solely in the employee’s interests, employer
could be liable if there is a sufficiently close link to the employer’s
interests or business
• See also F and Von Benecke cases ELL p 51
• See application of doctrine in cases of sexual harassment
• Grobler v Naspers (2004); Erasmus ELL p 52-53
• Cases on next slides (prescribed)
• Also, see the statutory form of vicarious liability created in sec. 60 of the EEA
in respect of sexual harassment as form of unfair discrimination
A story too often encountered: ( test )
PE v Ikwezi Municipality & another (2016) 37 ILJ 1799 (ECG)
PE v Dr Beyers Naude Local Municipality (2021) 42 ILJ 1545 (ECG)
• Earlier remarks with sexual innuendo. Then…..
‘On Monday morning, 16 November [2009], plaintiff was alone in her office when second
defendant entered. After greeting her he walked directly to where she was sitting at her desk.
As she looked up he bent down with his head over hers and, putting his mouth over hers,
attempted to force his tongue into her mouth. She clenched her teeth and tried unsuccessfully
to push him away. After a minute or so he desisted, leaving her with a mouthful of his saliva.
She immediately wiped the saliva off her mouth. He then also tried to wipe her mouth with
his hand but she knocked it away. He then mumbled something which she could not hear and
then told her to make copies of certain items from a council agenda. Before leaving her office
he told her that he was going to get a cold sore the next day because he had kissed her.’
Municipality puts victim on special leave for couple of days
Does not suspend perpetrator (manager)
Only later – perpetrator charged with misconduct (“attempted to kiss her”) – found guilty, but
only suspension without pay for two weeks; then business as usual (including contact with
victim) – no assistance to victim
Victim resigns
Court (in second case):
“[31] The decision by the presiding officer not to impose a sanction of dismissal was
mindboggling given the character of the offence”
 [44] The conduct of the municipality was truly an illustration of how not to manage a
sexual assault in the workplace.”
• What legal remedies are available to the victim of sexual harassment? ( test )
• In order to answer the question need to look at book in areas haven’t spoken about
• Constructive dismissal chapter 5 ( s 168 one e )
• Discrimination dismissal
• Sexual harassment is sex discrimination
• Employment equity act chapter 12
• Section 60 employement equite act
• Common law liability and direct liability
• Media 24 vs globler
• Protection from harassment act