Employment Contract Development

Development of the Employment Contract

• The origin of the modern employment contract has its roots in Roman law.
• Roman law distinguished between different forms of letting and hiring:
  • Locatio conductio rei: Letting and hiring of a physical object.
  • Locatio conductio operis: Letting and hiring of a specific piece of work, similar to a contract for an independent contractor.
  • Locatio conductio operarum: Letting and hiring of someone's personal services for remuneration, the forerunner of the employment contract.
• Locatio conductio operarum was not widely used in Roman times due to the extensive use of slaves.
• The modern employment contract developed rapidly during the industrial revolution with the rise of factories.
• The modern employment contract reflects both its origin in Roman law and the considerable influence of English law.

Continued Importance of the Employment Contract

• The contract of employment remains the foundation of the relationship between an employee and their employer.
• The existence of an employment relationship is the starting point for applying all labour law rules.
• Labour law has largely developed through legislation to enforce fairness in the contractual relationship.
• Labour law is now largely contained in legislation.
• Employees often rely on their rights in legislation when aggrieved by their employers' conduct.

Reasons for Studying Employment Contracts

• A contract's existence means that the person rendering service is an 'employee' in contractual terms and for labour legislation purposes.
• Labor legislation cannot make a true employee out of someone who is not under contract employment, but exceptional cases do exist.
• The employment agreement helps to define the working conditions and expectations from an employee (remuneration, leave, benefits).
• Labor laws establish boundaries with what an employer can and cannot control with the employee working terms through collective bargaining and the Basic Conditions of Employment Act 75 of 1997 (BCEA)
• Employees can enforce statutory or contractual rights but cannot rely on both at the same time (Fedlife Assurance Ltd v Wolfaardt (2001) 22 ILJ 2407 (SCA).
• Employees decide on the cause of action that suits them best, and Constitutional rights exist independently of the LRA.

Definition of the Employment Contract

• In essence, the employment agreement is a voluntary agreement between two parties, for labor in turn for renumeration.
• No forced labor should account under the contract (Subject to all Constitutional Guarantees.)
• Contract of employment must comply with the general requirements of law.
• 'To work' means to place one's labour potential at the disposal and under the control of another.
• Employer can indicate how the employee will carry out the work when issuing reasonable commands.
• 'Renumeration' Definition
• 'any payment in money or in kind, or both in money and in kind, made or owing to any person, in return for that person working for any other person, including the State'
• The contract is recipricol where an employment remumerates the employee, whilst the former places their labor potential at the disposal of the latter.

The element of control

• Modern employment contracts entail workers are highly skilled and bare fair ammounts of responsibility
• Not essential to monitor worker performance
• Element of control not pertinent in modern society
• Difficult to identify existence of employment contract when compared to an independent contractor

Requirements for a Valid Employment Contract

• Contracts , including employment ones must be legally binding.
• One requirement is the objectives of the contract must be lawful.
• Contract cannot contravene legislation
• Pivotal for a binding employment contract is parties must reach consensus.

Consensus and Intention

• Consensus means agreement.
• Parties must intend the same thing: to conclude an employment contract.
• Church of the Province of Southern Africa (Diocese of Cape Town) v CCMA (2001) 22 ILJ 2274 (LC): Relationship between a priest and the church was not an employment relationship because there was not an intention to create a legally binding agreement.

Negotiation and Formalities

• Employers and Employees have bargaining power when concluding work contracts, if skills and training are in demand.
• Inception of contract is a submission and can be an act of subordination
• Imbalance of power unrecognized by common law of contract of employment
• Written contract carefully drafted by employers with little choice other to sign

Terms of Agreements

• Common law offers protection apart from abitrariness with bigger bargaining power.
• It was reality that gave rise to adoption of labor laws discuss in chapter 3 and further
• Law does not require most work contracts be in writing, but exceptions to contracts like merchant agreement are required under statutes
• Common misconception stems from section 29 of the BCEA, which states that an employer must provide an employee with certain information in writing.
• Oral agreements are as binding as written ones, for clarity it is prudent to document contractual rights

Implied common law contractual duties of the parties

• Duties imposed by the contract of employment
• Duties implied into the contract of employment by common law principles, unless otherwise specified
• Many duties imposed in addition either by the parties or the employer, or labour laws
• Employees must act in good faith and promote the interests of the employer

Contractural Duties of Employees

• Firstly, duties is tendering to primary services
• If employee tender services to the employer, and in reverse was they are unable to do them they are intitled to remumeration and are not in breach of contract -Employees breaching duties who refuse work or desert employment are in breach of contract
• Smaller breaches such as late coming or poor communication account for simultanious misconduct.

Work Competencies of the Employeer

• Employees must perform their tasks competently and without neglience
• If employee can do agreed work but refuses the duties, it is possible to take three forms
• The duties of the employee come under control of employer even as the latter states them -Serious insubordination shows lack of compliance with the employers instructions, which causes employer to terminate contract/
• Employee must adhere to the agreed scope duties as said in contract, where that employer has complied to fair measures during dismissal

Implied Obligations

• Employees and Employer must maintain confidence and trust
• Parties need not state the building that is the contract, but can choose to do so
• The relationship entails to act in good faith and provide the interests of the employer, where the legal precent does not need an unilateral obligation
• Examples of duties being breached are; the falsification of documents or the breach of confidences where interdicts and judgements occur

Interests of the Employer

• Interest of the employer; being a fiduciary cannot avoid all conflicts, although must promote the employers business
• The consultant/ emplolyee can grasp buissness deals and make their own profits
• The senior the employer is, the great the benefit of being placed in the fiduciary/ key manager role
• The employer may not recieve benefits without the knowledge and benefit of the the party he works for

Other Terms and Conditions of Employment

• Labor law aims to be as little as possible with what employers can and cannot do.
• Agreements to make payments take form as bonuses and shifts away from paying for the payments only salary
• It can be difficult to shift away from only that salary and whether some can be part of payment remunerations.
• Employers have no duty if employees wish have those tasks if employees tender those services,

Duty to provide work

• Employees require working material to maintain or progress on any skill if applicable.
• Special and unique relationship can prove necessary for the employer to offer
• Duty is to provide as possible a safe facility, where the safety can be reasonably practicable.

General Duty

• Extent some duties above be Constitution, where duties be devolved further towards.
• General duty to deal fairly is introduced, that Military policeman be constructed dismissed
• LRA did not apply members of SA National Defence Force and purely contractual grounds to approach High Court
• LRA, which contains legislative protection against all cases.

Freedom to Contract

• From common law perspective, employment is contract between two equal parties for mutual benefit
• Employer and employee voluntarily negotiate their rights
• Common law may not concern itself with unequal bargaining
• Prospective contracts may have little choise, and can be accepted with prospectiive employer or employee
• NMWA + BCEA as collective bargaining regulated act 9 of 2018

Terms and Conditions - (2.5.2) notes

• Derived from - the terms derived by parties, common law and statutal.
• Issues for consideration include - job description, working hours, benefits, remuneration payment and working conditions.
• Contract may deal duration, name and basis.
• Employers may have a direction of future discretions

Terms of contract

• Provisions to agree on number of hours within period is the term, unless clearly unfettered contractual discretion
• An exercise of discretion must be reasonable, which is relevant to ensure that the parties must not be in bad-faith.
• Must use benefits to balance decision and or actions
• The use of incorporation is called the tecnique, amended to time which form over and above express terms included in the express

Contract of Employment Notes

• Terms and conditions can vary to be flexible with internal policies.
• A condition of collective agreement, prescribed by the terms of statute, is what cannot be changed unilaterally.
• If employed changes an agreement, it is in breach of term employment.
• Employer find agreements though individually or collectively through groups of the employee.
• If the employer find times of organizational needs, that employment practice must be met.
• Employee needs an agreed method of bargaining terms with union members. In that change the is possible change for refusal of those agreements.
• For instances the Minister of employements and Labour

Restraint of trade (2.5.3)

• Employers needs utilize information after the act of termination.
• Led to conclude as employers seeing restrain from trade
• Object to protect employer goodwill w customer
• Effective period after the employee leaves , needs protection independency of how work is handled

Clause of restraint

• Prevents a worker from exercising the art and skills in another venture
• Can be exampled as a hairdresser is prevented from working in a region that is so apecified in a time like one year , after termination
• They might reach so wide. with agreements in place with employee which are to preclud former employees from working with the same employees over several years which all seek to not gain access
• Most stances the employees have to be at best in terms of positions which they will not able to nagotiate.
• The employees are aware and from rule to handle and the leading decision, by most restraints and valid which do not enforce
• Contracts for restraint are unconstituional. All people must be entitled in commerce, which may not let any persons freedom go to trade

Terms and Conditions - In detail

• The Constitution allows for free occupation. This is a very detailed act that must uphold a balance of all the obligations that are imposed in the agreement.
• Various consideration to be included are the nature in detail regarding time and specific detail with the parties as well their power of intent An interest is deserving of protection at work if these is a breach
• Is such interest being perjudicial by another party
• If so, what does much weigh in that intrest so as to not affect another partys qualities/ Quantities
• Is there another policy aspect that has any thing to do with a connection/ relation, and must is it being done as maintained or in order to reject

Aspects of trade

• One aspect of exceeds one the next would be to reject if unreasnoable
• Wider restraint is a consideration can add
• Nature and scope of a period is in agreement or if it applies in a wide aspect to make relevant
• Protect from any benefit in those sectors of a employee or only ones who could tell of matters not meant to occur

Vicarious Notes (2.5.4)

• The scope of a duty that employees have within legal standpoints for employer based actions inside work
• As said, “Garage B” asks an employee, Employee A, to drive customer to his choice destination and ends up being at fault in crash, thus C comes in to be hurt seriously with the car.
• Garage B can said to be negligent with A. This is based on creating risk for conduct with employ, the need for claiming that the party is hollow, where the fact is that the company is willing to pay back with insurance and good products to assist
• Not withing the scope of the duties to determine if the person is performing well and it makes the act more difficult, so the employee must always further the buissness at all costs.
• The drivers are at the repair shop which causes detours to collect cells phones in accidents and such liability accured.

Vicarious Libilities - Legal Matters

• Two import cases are KN which are the key decisions for the constitution.
• Young Women is in the police care, on shift, before the act of the act taking place in order raping her.
• The officer, was found to be in act as an employer for the most part, though that employer was said to be the person to determine if and where that liability is to occur (Paragragh - 332)
• If the actions for an officer are soley for that of the employer, the connection does not have any rise which does not lead to an officer doing his daily buissness. And the power and intent is how there is no true bearing of all the objects.

Points to retain

• Manudates were said to act with the police sector to keep members feeling and being safe
• They do an import roll that is protected to facilitate in being able to assist there comitites.
• All the power that is given must not be used, due ti them being able to get hold of the power to violate as 1267 states. As well due to the harm has been so direct
• As well since other types of harm also took effect. A connection can also be made for actions and intent to say this is why they can liable from all which came about with the harm..

Breach And Remedies

• If Contract of employment cannot carry obligations for one party then they are said to have broken parts of contract Whereby the party at fault or in the wrong has a number of remedies at where for each party to atone them self to what had occurred. The LRA remedies as reinstate or to pay what the job has not payed can serve a point as well
• Not all have positions to be able to look over where the rights have been. Those will have to be addressed in civil or labour courts in some forms.
• And employees all with claims may seek one at payments, with out the court if they cannot take on such a cost, which can be slow to react

Termination forms of the Contract

• The contract of service for an unlimited can be terminated fairly is a form of the intention of the parties
• Or can come to an end, where you can view such information about cases in different parts This makes one understand that it has not been meant to use to make an issue that gives the right to the parties about if and when the contracts must take into affect with those laws
• A Key decision/ case to look upon is if and what all reasons can be stated towards when the work must be terminated where there is no reas on at all, for all circumstances must come to an end with a termination
• It must follow those said rules that the employer does as said to protect the reasources under a case.

Summarize - The Contract of Employment and its Relationship with Unfair dismissal

• What is more important has the law and a sense for what it needs where the contract has been given as a chance to act
• If all the parts of the rules which make it up, were made to be part of a summary is it, due to the most important reason which brought to it by another type with the party.
• When the given rules show they needed and will be set to take care, they are said to have a base as with legal binding.

Termination

• Method can be for the completion of the contract
• There after it will all end, unless you bring about more to it. It can be as if you want to bring about more than one chance to add to it

Exploitation and unfairness

• If an employer uses those steps/ acts to not give you some of the protection where you did not as all work as under, this is where they are not going to show much care for the employee. This was given if the employers gave no choice which to renew over what had not come with where they did not do proper perform.

Explore the evolution of employment contracts from Roman law's locatio conductio operarum to its modern form, influenced by the industrial revolution and English law. Discover how the contract of employment remains the cornerstone of employer-employee relationships.