1. Labour & employment law
B com

2. Why labour law?
Important – especially for students studying HR – if in business – generally an employer or an employee – know your rights and duties

3. The uneven relationship
There is an uneven relationship between employers and employees
Few employers and many employees
People want and need jobs
If no protection – opens door for abusive relationship
Always someone who is willing to do it for less
Govet needs to level playing field

4. The four mechanisms to introduce equality
Mechanisms designed to ensure ‘fairer’ terms and conditions of employment. These mechanisms may further be divided into:
legislation that lays down minimum terms and conditions of employment (eg: BCEA)
legislation that promotes collective bargaining to ensure a greater measure of equality (eg: LRA)
Protection against unfair dismissal (regulated by the LRA)
Protection against unfair labour practices (regulated by the LRA)
Protection against unfair discrimination (regulated by the EEA) (at the same time provision is made for training and skills development in the workplace which is regulated by the Skills

5. Individual – Employer and employee
Collective – Employer and group of employees

6. Sources of labour law in sa
Common law
Legislation
Collective agreements
International Labour Standards
Constitution

7. The two types of contract
Letting and hiring of services
Locatio Conductio Operarum
Letting and hiring of work
Locatio Conductio Operis

8. Employee or independent contractor
Locatio Conductio Operarum
Locatio Conductio Operis
The letting and hiring of services (employee)
Puts services at the disposal of the employer
Authority, control and supervision of the employer
Usually paid per hour, day, week or month
Employer vicariously liable for delicts of employee
The letting and hiring of work (contractor)
Performs a certain piece of work
Not under the control or authority of the employer
Usually paid per job or per result
Contractor personally liable for delicts

10. test
Control test
Organisation test
Dominant impression test

11. Factors to consider Must services be rendered personally?
Are their fixed hours & a regular wage?
Is employers disciplinary code applicable?
Are there any benefits; pension, medical aid etc?
Is there any control exercised by the employer?

12. Employees and contractors
Presumptions created by BCEA (83A) and the LRA
the manner in which the person works is subject to the control or direction of another person
the person's hours of work are subject to the control or direction of another person
in the case of a person who works for an organisation, the person forms part of that organisation'
the person has worked for that other person for an average of at least 40 hours per month over the last three months
the person is economically dependent on the other person for whom he or she works or renders services
the person is provided with the tools of trade or work equipment by the other person
the person only works for or renders services to one person

13. Why does it matter?
Labour law protects employees
Independent contractors have to fend for themselves

14. The employment contract
At common law – no formalities
Section 29 of BCEA prescribes 16 pieces of information to be provided in writing on commencement of employment

15. The essentials Voluntary agreement Between two parties
Agree to perform certain specified duties
For indefinite or specified period
In return for payment
And giving employer right to direct employee

16. The typical employment contract
Employer details
Job description
Rate of pay, overtime etc
Duration
Benefits
Leave
Working hours
Deductions
Policies
Rules

17. Common law duties of the employer
To pay the employee (if agreed)
To provide work (if necessary)
Not to require employee to do work junior to their status
Not to force employee to different work than agreed upon
Not to contract the employee to someone else without employee consent
To provide safe working conditions

18. Common law duties of the employee
Make personal services available
Work faithfully and diligently
Obey reasonable orders
Exercise reasonable care

19. Note:
A violation of the duty of good faith or any action which breaks the relationship of trust between employer and employee could lead to dismissal
Examples:
Competing with employer (weekend jobs)
Criticising the employer on social media

20. The concept of vicarious liability
Generally – no one liable for the delicts of another, however;
Employers (and the employee) are liable for the delicts committed by their employees while acting in the course and scope of their duties and in furtherance of the employers interests

21. Requirements for liability
There must be an employment relationship
Delict committed in the course of performance of duties, within scope of employment and towards furtherance of employers interests
Employee must not have been on a frolic of his own

22. Employer Liability for I/C delicts
Generally no liability, but employer can be jointly liable with I/C if:
Employer negligent
Employer instructs or ratifies delictual action
Delict is a result of incomplete instruction by employer
Employer fails to take necessary safety measures

23. Labour legislation Basic Conditions of Employment Act
Labour Relations Act
Employment Equity Act
Unemployment Insurance Act
Occupational Health & Safety Act
Compensation for Occupational Injuries & Diseases Act
Etc ……..

24. BCEA Minimum conditions of employment
Applies to all employees except members of SANDF & intelligence services
Persons earning over R exempted from working hours, overtime etc
Sets maximum working time – 45 hour week
Provides for overtime – 1 ½ times pay or paid time off
Overtime is by agreement
Compressed work week and shift work
Meal intervals
Rest periods
Sunday work
Night work

25. BCEA Leave Maternity, sick leave, family responsibility, annual
Inform workers of rights – posters
Record keeping
Payslips
Deductions
Notice period
1 week, 2 weeks, 4 weeks
Certificate of service
Labour inspectors

26. Labour relations act
To provide for the prevention and settlement of disputes between employers and employees and for the regulation of terms and conditions of employment by agreement & arbitration

27. LRA
Allows for registration of trade unions and employers organisations
Allows for collective bargaining councils, industrial councils etc
Allows for conciliation boards and mediation & arbitration
Establishes the CCMA

28. LRA
Provides for collective bargaining – trade unions have organisational rights
Attempts to create order in the workplace through negotiation and process of dispute resolution
Strikes & lock-outs are a tool to achieve this
Regulates strikes & lock-outs

29. Strikes & lock-outs

30. LRA Outlaws discrimination in the workplace Regulates dismissals
Fair dismissals
Only 3 – misconduct, incapacity & operational requirements
Unfair dismissals
See Code of Good Practice (Schedule 8)
Automatically unfair dismissals

31. dismissals
Substantive fairness
Procedural fairness

32. Retrenchment process
A written notice advising and inviting prior consultation
A joint consensus-seeking process over certain matters such as appropriate measures to avoid retrenchment or to minimize the number of dismissals
Written disclosure of all relevant information to allow for effective consultation
Allowing employees an opportunity to make representations during the consultation
Consideration of the representations
Selection of employees according to agreed selection criteria, such as LIFO
Payment of severance pay in terms of the BCEA – at least one week’s severance pay for every completed year of continuous service

33. Automatically unfair dismissals
The employer acts in contravention of freedom of association in dismissing an employee
The employee is dismissed for participating in a protected strike or protest action
The employee is dismissed for refusing to provide replacement labour where other employees are on a protected strike
The employee is dismissed to compel him or her to accept a demand made by the employer
The employee is dismissed for exercising his or her rights granted by the LRA against the employer
A female employee is dismissed for any reason related to her pregnancy
The dismissal constitutes unfair discrimination against an employee concern (in the ordinary course of business and in circumstances of insolvency) by one employer to another, or a reason related to such transfer
The employee is dismissed because he or she has ‘blown the whistle’ or had made a protected disclosure to certain people or institutions

34. Chomp Supermarket fires Jake for stealing a can of baked beans.
Is this a fair dismissal?

35. The ccma Dispute resolution mechanism Conciliation Mediation
Arbitration

36. Bargaining councils Industry wide application
Equal representation of employers and employees through representative bodies
Negotiation
Dispute resolution