Employee / Employer Rights
Basic Employer and Employee Rights
Employer and employee rights stem from the existence of a contract of employment between an employer and an employee.
Basic Minimum Employee rights can be found in the BCEA, Sectoral Determinations and Council Agreements which regulates various entitlement, for instance, minimum remuneration, Leave entitlements, Working hour Regulations, Time off Regulations and various other rights.
The OHSA Act regulates requirements pertaining to save working environments and the EEA and SDA regulate equity and skills development requirements.
A contract of employment is defined as:
- Agreement between legal personae;
- Employee undertakes to place personal service at the disposal of the employer;
- For indefinite or determined period;
- For remuneration;
- Entitles the employer to define duties and control the manner in which the employee discharges them.
- Under both common law and by statute an employee who fails to tender services is not entitled to receive remuneration (except in statutory circumstances such as leave) – see Potchefstroom Municipal Council v Bouer
- Where employee tenders services but employer fail to allow – entitled to remuneration
- Failure to render services takes forms like desertion, absenteeism, and unpunctuality where employer may deduct payment
- In Mayer v Sieradzki 1910 TPD 869 – the period of absence that constitutes a legitimate ground for dismissal depends on the facts of each case
- In Strachan v Prinsloo 1025 TPD 709 – the essential issue was whether the employees’ conduct amounted to a breach of a vital part of his contract of employment
- The court will focus on certain factors in determining whether the employees’ absence constitutes a breach of a vital term of the contract:
- Nature of work (the more strategic the more justified a dismissal) –
- Did the absence disrupt the normal course of the business –
- Length of service
- Duration and frequency
- Disciplinary Code
- Employees poor work performance may manifest in gradual drop below standards or single act
- In Somoyo v Ross Poultry Breeders (Pty) Ltd where a manager of a chicken hatchery was dismissed for failure to vaccinate chickens against disease, the court held that although the employer had not adequately complied with the requirements of counseling and warnings which would generally be applicable to “ordinary” employees, Mr. Somoyo was not an ordinary employee. He was a manager; he was aware of the potential consequences for the company of failing to vaccinate and he failed to provide and expectable explanation for his omission – his dismissal was therefore fairTherefore, seniority and experience are amongst factors to consider whether an employees performance are lacking.
- The more senior and highly paid the employee, the higher standard of overall work that can be expected
- Such employee can as in Ross Poultry judge for themselves whether they are compliant with the employer’s standards of work or not
- Same in Forest Farming CC v Cachalia & Others (2003) 24 ILJ 1995 (LC) – Arbitrator in CCMA made wrong ruling overturned by court in saying “ what the arbitrator should have done was to ask whether the employee, holding the position he did, ought to have been able to judge for himself whether he was meeting the standards of the employer in stead of whether he possessed the skills required for the job
- Courts unsympathetic to senior employees – if found that manager has the knowledge and experience such that he was aware of the employer’s standards, and fails to satisfy them he can be dismissed without being given the opportunity to improve.
- Employees are obliged to devote their energy and skills to furthering the employers business
- Devote all working time to employers business and employers needs.
- Relationship of fiduciary nature – employees may not place themselves in a position where their own interest conflicts with that of the employer – therefore in employment relationship no benefits or interests without the knowledge of the employer as “agent of the employer”
- Phillips v Fieldstone Africa (Pty) Ltd & Another (2004) 25 ILJ 1005 (SCA)
- May not work for another where similar businesses or interests as the employer
- No conflict of interest
- May not divulge any information of employer if not mandated
- Any breach of this fiduciary duty = dismissible
- Fiduciary duty, therefore, a duty of good faith = care for the interest of another as if for own interest
- Implied duty of every employee if not relationship deemed intolerable as this denies and undermines the employers right to decide how employees will work
- Labour Courts require employees to show respect and courtesy to employers (insolence) and to obey reasonable and lawful instructions implied or direct (Gross insubordination)
- Imposes on the employee the duty to behave in a manner compatible with the subordinate position not therefore in defiance with the employer’s position of authority under which the employee falls.
- Disrespect and insubordination justifies termination when such of such manner as to repudiate the employer’s lawful authority
- Olsche v Haumann 1910 OFS 59
- Under authority of the employer
- The employee agrees to render certain duties at the behest of the employer in a subordinate relationship. (must obey lawful commands and carry out reasonable instructions within the bounds of the contract of employment)
5 To Refrain from Misconduct