MRL 3702- LABOUR LAW NOTES
STUDY UNIT 1- INTRODUCTION
- Labour law comprises:
1. Individual labour law – deals with the formation, content and termination of the employment relationship.
Employment relationship exists between two single entities eg. one single employer and one single worker
2. Collective labour law- focuses on relationships on a collective level. Ie. a number of people
acting together (collectively) to influence this relationship. looks at groups. Eg. May act collectively by way of
trade unions and employer’s organisations
- Labour law deals with relationships:
Between employer and worker is called employment relationship. Basis of relationship is contract of
employment
Between an employer and trade union called a collective bargaining relationship (collective bargaining can
also exist betw employers organisation and trade union)
Between trade unions and workers called a membership relationship. Worker becomes a member of the
trade union ito the union's constitution. Also a membership relationship between a single employer and an
employer's organisation
State has relationships with all its citizens
- Sources of labour law: Constitution, international labour standards set by the ILO (The International Labour
Organisation), labour legislation, (for example the Labour Relations Act, the Basic Conditions
of Employment Act, and the Employment Equity Act), collective agreements, the common law and the
contract of employment.
STUDY UNIT 2- CONTRACT OF EMPLOYMENT
- What is a contract of employment? is a voluntary agreement between two parties, in terms of which one
party (the employee) places his or her labour potential at the disposal and under the control of the other
party (the employer) in exchange for some form of remuneration
- definition of an employee is important because most protective labour legislation (such as LRA & BCEA)
apply only to employees (as opposed to independent contractors). An independent contractor is someone
who works for his own account for example a dentist with his own practice. If the dentist works at a hospital
and earns a salary from the hospital he will qualify as an employee.
- Definition of an employee ‘any person excluding an independent contractor who works for another person or
the State and receive or is entitled to receive remuneration & any other person who in any manner assists in
the carrying on or conducting the business of an employer’
- Know difference between an employee and an independent contractor. Courts have developed certain tests
to help to clarify the concept of ‘employee’
the control test,
the organisation test,
the dominant impression test
- Element of control has been reduced to the right of the employer to control the employee. Is one of the
elements which the court will use to decide whether the contract is, in fact, a contract of employment
Activity:
1. What is the purpose of the statutory presumption of section 200A of the Labour Relations Act,1995?
to protect vulnerable workers
2. List seven factors that will lead to the presumption that a worker is an employee.
• 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 tools of trade or work equipment by the other person; or
• the person only works for or renders services to one person.
3. Must all these factors be present before a worker will be presumed to be an employee?
No, only one or more of the factors must be present for the presumption to apply to the employment
relationship.
- What are the differences between an employee and an independent contractor?
Employee: Object of contract is to render personal services
IC: Object of contract is to perform a specified work or produce specified result
Employee: Must perform services personally
IC: Can perform through others
, Employer: may choose when to make use of services of employee
IC: Must perform work within a fixed period by contract
Employee: Contract terminates on death of employee
IC: Contract does not necessarily terminate on death
Employee: Contract also terminates on expiry of period of service in contract
IC: Contract terminates upon completion of work or production of a specified result
Who is an employer?
No statutory def for the word.
Generally accepted definition ‘person or body which employs any person in exchange for remuneration and
any person who permits a person to assist in the conducting of business’
Definition includes labour brokers or temp employment services.
A labour broker is the employer of a person whose services have been obtained or provided to a client for a
reward. Eg . recruitment agency
Difficulty in using a labour broker: difficult to identify who the employer is, employees salary is reduced
because labour broker deducts their fees
Categories of employees which qualify for protection under labour law:
Permanent employee- employed for indefinite period
Temporary/contract/fixed term employee- employed for specified period or specified project
Casual- person works for same employer on not more than 3 days a week. The employment can temp or
perm.
Part-time- works for employer at certain times of the day. Works on certain days, mostly limited to 3 days per
week. Can be temp or perm
Unprotected workers
Illegal workers- common law dictates that an unlawful contract is void or voidable. Under criminal law, an
unlawful contract is punishable by a court of law.
If for eg an illegal worker is not protected by the labour law, they may still be protected by the Constitution
Activ- African Importers CC appointed Andre as an independent agent to sell the products imported by the
corporation. African Importers trained Andre, but they were not entitled to instruct him about the way in
which he sold the product, or to whom he sold the product. Andre could engage other people to assist him
in marketing African Importers' products and, if he wished, he could sell other products as well. Andre
could take vacation leave without the consent of African Importers CC, and had no obligation to submit
medical certificates if he was ill. Do you think Andre was an employee or an independent contractor?
In terms of the dominant impression test, Andre was not an employee, but an independent agent who was
his own master, because he did not perform the services required of him under the control and supervision of
African Importers. However, in terms of the definition of employee, Andre did assist African Importers in the
carrying on of their business. That assistance arose out of his obligation as an agent in terms of an agency
agreement, not out of a contract of employment. Andre is therefore not an employee, but an independent
contractor.
Activ- P hires K, a builder, to build a flat for P's parents on P's property. K uses his own building equipment and
has a team of workers in his employment who will do the actual work. P will pay K when the flat is
completed. K is also involved in other building projects, so he uses S, his foreman, to supervise the work
on P's flat. Do you think that K is an employee of P? Will S be an employee of K?
K is an independent contractor. Using the control test as a criterion, S is an employee of K.
Susan is an accountant. She is employed at two businesses for which she audits their books. Every Friday
she works at Trustworthy Trustees and on Mondays she works at the Special Care Pharmacy. Susan is a
member of an independent pension fund, but makes use of a motor vehicle provided by Trustworthy
Trustees for tax benefits. Susan has her own office at the back of the Special Care Pharmacy, and she
makes her own decisions about her working hours. Trustworthy Trustees has provided a computer for
Susan, but usually Susan uses her own personal computer. Do you think Susan is an employee or an
independent contractor?
If we use the organisation test as our criterion, it may seem in light of the facts that Trustworthy Trustees has
provided Susan with a computer and a motor, that she is therefore an employee. The control test, however,
will probably indicate that neither Trustworthy Trustees nor Special Care Pharmacy has control over Susan's
working hours nor does either company control the way in which she does her work. The dominant
impression is that Susan is an independent contractor, even though it seems that she works for these two
companies every week. We will probably need more information before we can make a final decision. This is
, an example of a borderline case, and this example should help you to appreciate how difficult it is sometimes
for the court to gain a “dominant impression”.
Activ- Tambo, a builder by trade, does work for Entrepreneur CC. Entrepreneur CC has realised that education
is crucial to the development of the new democratic South Africa, and is establishing various educational
enterprises at both secondary and tertiary level. Tambo lives on the premises of the first educational
venture, is paid monthly, and has pension and medical-aid contributions deducted from his salary. Tambo
is consulted about building plans, and even designs some of the buildings himself. He is usually consulted
about the hiring of builder's assistants, some of whom are part-time and others are full-time. From time to
time, Tambo meets with one of the managers of Entrepreneur CC to discuss the current building projects,
the financing of building materials, the payment of the builder's assistants, labour-related problems and,
when necessary, future plans. Which of the following statements is the correct?
(1) A builder is an independent contractor, and therefore the contractual relationship between Tambo
and Entrepreneur CC is that of an independent contractor.
(2) Tambo is an independent contractor because he, and not Entrepreneur CC, hires builder's
assistants and orders building material.
(3) In terms of the multiple test, the dominant impression is that Entrepreneur CC is the employer and
Tambo is the employee.
(4) Because Entrepreneur CC can tell Tambo what to do, where to do it and how to do it,
Entrepreneur CC as the employer has control over all that Tambo does.
(3) is the correct answer. Although builders are usually independent contractors, in the case of Tambo
the dominant impression is that he is an employee of Entrepreneur CC. (1), (2) and (4) are incorrect.
Concluding employment contracts
- Requirements for the completion of the contract is that there must be consensus between the parties to the
contract about the terms and conditions of the contract. A term to be agreed upon is the period of
employment (can be fixed term or indefinite)
- LRA does not define diff types of employees but these types can be distinguished:
Permanent and temporary employees
Temporary and probationary employees
Temporary, casual and part-time employees
Full-time and part-time employees
Managerial and non-managerial employees
- Requirements for a valid contract of employment:
1. Must be agreement
2. conclusion of the contract has to be lawful
3. parties must have the necessary capacity to enter into the contract
4. performance by the parties
5. obligations must be possible and the required formalities have to be complied with
Activ- Which of the following would be valid contracts of employment?
1. Peter, aged 14, approaches RatRace CC. RatRace had advertised a post in the local newspaper for a
delivery boy. Peter agrees to the terms and conditions proposed by RatRace.
2. David is employed by Paint CC in order to paint a house. Unknown to either David or Paint CC, the
house had burnt to the ground six months before the contract was concluded.
3. Steven and Michael enter into a contract. Steven is under the impression that he has contracted to
build Michael a house, while Michael believes that Steven has offered him full-time employment as
manager of a building site.
4. John concludes an employment contract with Mark and, in terms of the contract, Mark is expected
to murder Mrs G.
5. Billy, aged 18, concludes an employment contract with RatRace. At the time the contract is
concluded, Billy's father is overseas on a business trip, and the father is totally unaware of what
Billy is doing.
6. Joyce concludes an employment contract with Mrs C. Because Joyce can barely read, they conclude an
oral employment contract.
7. Larry is employed as a merchant seaman. Because Larry can barely read, he and his employer enter
into an oral employment contract.
Only 6 and 7 constitute valid contracts of employment. An employment contract does not have to be in
writing, it can be concluded orally. Peter is too young to conclude a valid contract of employment. David
cannot conclude a valid contract to paint a house, because the house had burnt down, and the obligations
in terms of the contract will therefore be impossible. Steven and Michael clearly do not have consensus
about the obligations in terms of the contract. John cannot conclude an employment contract to murder
Mrs G because such an action is clearly unlawful. Billy is under the age of 21 and therefore can only
conclude a valid contract of employment with the assistance of his father.
, Activ- Jenny is appointed for one month to make sure that all the marks in the examination papers were correctly
added up. Jenny will be paid at the end of the month. However, after two weeks on the job, Jenny has not
received a single examination paper to check. Is Jenny entitled to be given examination papers to check?
Would your answer be different if Jenny was paid for each examination paper that she checked?
Anna is doing her apprenticeship at a large auditing firm. The firm has employed too many clerks and, as
a result, Anna often plays computer games on the computer to pass the time. Is Anna entitled to complain
to management about the lack of work?
Did you mention in your answers that there is, in general, no duty on an employer to provide an employee
with work, except where the employee's wage depends on the work provided by the employer or if the
employee requires work in order to maintain or develop skills?
Activ- The leading case in regard to restraint of trade is Magna Alloys & Research
Consider the following rules dealing with restraint of trade: Which of the above rules were formulated by the
court?
A) A restraint of trade clause which is contrary to public policy will be unenforceable.
B) If an employer seeks to enforce a restraint of trade clause, the employee bears the onus of proving
that the clause is contrary to public policy.
C) In deciding whether or not the restraint of trade clause is contrary to public policy, the court will
consider the circumstances prevailing when the contract was concluded.
D) The court may decide that part of the restraint of trade clause is enforceable and part of it is
unenforceable
Statement 1 is correct. A, B & D were rules formulated by the court. C is not correct. In deciding whether the
restraint if the restraint of trade clause is contrary to public policy, the court will consider the circumstances
that prevail when the enforcement of the clause is sought and not when the contract was concluded. All the
other statements are self-explanatory.
Activ- Carl works as a bartender at the Hotel Las Vegas in Gauteng. In terms of his contract of employment,
Carl works fourhour shifts on Monday, Wednesday and Saturday evenings and is paid R250 per shift.
One Saturday night a fight starts in the bar. Carl tells the people involved to leave the bar. As they leave,
one of the people involved in the fight – Barney - turns round and swears at Carl. Carl ignores the insult,
but a few minutes later, when he (Carl) fetches something in his car, he runs into Barney in the parking
lot just outside the premises of the hotel. They get into a fight and as a result, Barney gets injured and has
to spend a week in hospital and his medical expenses are R25 000.
Which one of the following statements is the most correct one?
1. Carl is not an employee of the Hotel Las Vegas and therefore Barney cannot sue the Hotel Las
Vegas on the basis of vicarious liability.
2. Because Carl did not act negligently, Barney will be unsuccessful in his efforts to sue the Hotel
Las Vegas on the basis of vicarious liability.
3. Barney can sue the Hotel Las Vegas on the basis of vicarious liability, but the success of his claim
will primarily depend on whether it is found that Carl acted in the course and scope of his
employment.
4. Because Carl reacted to the verbal abuse by Barney, neither he (Carl) nor the Hotel can be held
liable for Barney’s damages.
5. Because Carl acted unlawfully by assaulting Barney, it is neither fair nor legally possible to hold
the Hotel Las Vegas vicariously liable.
Statement 3 is correct as it contains the most correct statement. Statement 1 is incorrect. The facts
clearly state that Carl is an employee of Hotel Las Vegas and also mentions his contract of employment.
Statement 2 is incorrect. The act must have been culpable, in other words either wilful or negligent. It is
not clear from the facts whether Carl acted at all or showed some culpable behaviour. Statement 4 & 5
are incorrect. This will not constitute defences for a claim based on vicarious liability. If the
requirements for vicarious liability are met the employer can be held liable. These requirements are: (a)
there must be a contract of service between the employer and employee, (b) the conduct of the employee
must have constituted a delict, namely (c) there must have been an act or omission, (d) which is unlawful
(e) and culpable. (f) A third party must have suffered prejudice and (g) the act must have caused the
patrimonial damage to a third party.
Activ- F is employed by P. In terms of the written contract of employment between F and P, one month's notice
of termination must be given. F and P disagree about the results of a soccer match, and the disagreement
is of such a nature that P gives F one month's notice of termination of employment.
It is clear that in this case, the period of notice agreed to by the parties in the contract of employment has
been given. In other words, the termination is lawful. However, it should be clear that something is wrong
-an employer should not be in a position to terminate the employment of an employee because of a
disagreement about the results of a soccer match.
STUDY UNIT 1- INTRODUCTION
- Labour law comprises:
1. Individual labour law – deals with the formation, content and termination of the employment relationship.
Employment relationship exists between two single entities eg. one single employer and one single worker
2. Collective labour law- focuses on relationships on a collective level. Ie. a number of people
acting together (collectively) to influence this relationship. looks at groups. Eg. May act collectively by way of
trade unions and employer’s organisations
- Labour law deals with relationships:
Between employer and worker is called employment relationship. Basis of relationship is contract of
employment
Between an employer and trade union called a collective bargaining relationship (collective bargaining can
also exist betw employers organisation and trade union)
Between trade unions and workers called a membership relationship. Worker becomes a member of the
trade union ito the union's constitution. Also a membership relationship between a single employer and an
employer's organisation
State has relationships with all its citizens
- Sources of labour law: Constitution, international labour standards set by the ILO (The International Labour
Organisation), labour legislation, (for example the Labour Relations Act, the Basic Conditions
of Employment Act, and the Employment Equity Act), collective agreements, the common law and the
contract of employment.
STUDY UNIT 2- CONTRACT OF EMPLOYMENT
- What is a contract of employment? is a voluntary agreement between two parties, in terms of which one
party (the employee) places his or her labour potential at the disposal and under the control of the other
party (the employer) in exchange for some form of remuneration
- definition of an employee is important because most protective labour legislation (such as LRA & BCEA)
apply only to employees (as opposed to independent contractors). An independent contractor is someone
who works for his own account for example a dentist with his own practice. If the dentist works at a hospital
and earns a salary from the hospital he will qualify as an employee.
- Definition of an employee ‘any person excluding an independent contractor who works for another person or
the State and receive or is entitled to receive remuneration & any other person who in any manner assists in
the carrying on or conducting the business of an employer’
- Know difference between an employee and an independent contractor. Courts have developed certain tests
to help to clarify the concept of ‘employee’
the control test,
the organisation test,
the dominant impression test
- Element of control has been reduced to the right of the employer to control the employee. Is one of the
elements which the court will use to decide whether the contract is, in fact, a contract of employment
Activity:
1. What is the purpose of the statutory presumption of section 200A of the Labour Relations Act,1995?
to protect vulnerable workers
2. List seven factors that will lead to the presumption that a worker is an employee.
• 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 tools of trade or work equipment by the other person; or
• the person only works for or renders services to one person.
3. Must all these factors be present before a worker will be presumed to be an employee?
No, only one or more of the factors must be present for the presumption to apply to the employment
relationship.
- What are the differences between an employee and an independent contractor?
Employee: Object of contract is to render personal services
IC: Object of contract is to perform a specified work or produce specified result
Employee: Must perform services personally
IC: Can perform through others
, Employer: may choose when to make use of services of employee
IC: Must perform work within a fixed period by contract
Employee: Contract terminates on death of employee
IC: Contract does not necessarily terminate on death
Employee: Contract also terminates on expiry of period of service in contract
IC: Contract terminates upon completion of work or production of a specified result
Who is an employer?
No statutory def for the word.
Generally accepted definition ‘person or body which employs any person in exchange for remuneration and
any person who permits a person to assist in the conducting of business’
Definition includes labour brokers or temp employment services.
A labour broker is the employer of a person whose services have been obtained or provided to a client for a
reward. Eg . recruitment agency
Difficulty in using a labour broker: difficult to identify who the employer is, employees salary is reduced
because labour broker deducts their fees
Categories of employees which qualify for protection under labour law:
Permanent employee- employed for indefinite period
Temporary/contract/fixed term employee- employed for specified period or specified project
Casual- person works for same employer on not more than 3 days a week. The employment can temp or
perm.
Part-time- works for employer at certain times of the day. Works on certain days, mostly limited to 3 days per
week. Can be temp or perm
Unprotected workers
Illegal workers- common law dictates that an unlawful contract is void or voidable. Under criminal law, an
unlawful contract is punishable by a court of law.
If for eg an illegal worker is not protected by the labour law, they may still be protected by the Constitution
Activ- African Importers CC appointed Andre as an independent agent to sell the products imported by the
corporation. African Importers trained Andre, but they were not entitled to instruct him about the way in
which he sold the product, or to whom he sold the product. Andre could engage other people to assist him
in marketing African Importers' products and, if he wished, he could sell other products as well. Andre
could take vacation leave without the consent of African Importers CC, and had no obligation to submit
medical certificates if he was ill. Do you think Andre was an employee or an independent contractor?
In terms of the dominant impression test, Andre was not an employee, but an independent agent who was
his own master, because he did not perform the services required of him under the control and supervision of
African Importers. However, in terms of the definition of employee, Andre did assist African Importers in the
carrying on of their business. That assistance arose out of his obligation as an agent in terms of an agency
agreement, not out of a contract of employment. Andre is therefore not an employee, but an independent
contractor.
Activ- P hires K, a builder, to build a flat for P's parents on P's property. K uses his own building equipment and
has a team of workers in his employment who will do the actual work. P will pay K when the flat is
completed. K is also involved in other building projects, so he uses S, his foreman, to supervise the work
on P's flat. Do you think that K is an employee of P? Will S be an employee of K?
K is an independent contractor. Using the control test as a criterion, S is an employee of K.
Susan is an accountant. She is employed at two businesses for which she audits their books. Every Friday
she works at Trustworthy Trustees and on Mondays she works at the Special Care Pharmacy. Susan is a
member of an independent pension fund, but makes use of a motor vehicle provided by Trustworthy
Trustees for tax benefits. Susan has her own office at the back of the Special Care Pharmacy, and she
makes her own decisions about her working hours. Trustworthy Trustees has provided a computer for
Susan, but usually Susan uses her own personal computer. Do you think Susan is an employee or an
independent contractor?
If we use the organisation test as our criterion, it may seem in light of the facts that Trustworthy Trustees has
provided Susan with a computer and a motor, that she is therefore an employee. The control test, however,
will probably indicate that neither Trustworthy Trustees nor Special Care Pharmacy has control over Susan's
working hours nor does either company control the way in which she does her work. The dominant
impression is that Susan is an independent contractor, even though it seems that she works for these two
companies every week. We will probably need more information before we can make a final decision. This is
, an example of a borderline case, and this example should help you to appreciate how difficult it is sometimes
for the court to gain a “dominant impression”.
Activ- Tambo, a builder by trade, does work for Entrepreneur CC. Entrepreneur CC has realised that education
is crucial to the development of the new democratic South Africa, and is establishing various educational
enterprises at both secondary and tertiary level. Tambo lives on the premises of the first educational
venture, is paid monthly, and has pension and medical-aid contributions deducted from his salary. Tambo
is consulted about building plans, and even designs some of the buildings himself. He is usually consulted
about the hiring of builder's assistants, some of whom are part-time and others are full-time. From time to
time, Tambo meets with one of the managers of Entrepreneur CC to discuss the current building projects,
the financing of building materials, the payment of the builder's assistants, labour-related problems and,
when necessary, future plans. Which of the following statements is the correct?
(1) A builder is an independent contractor, and therefore the contractual relationship between Tambo
and Entrepreneur CC is that of an independent contractor.
(2) Tambo is an independent contractor because he, and not Entrepreneur CC, hires builder's
assistants and orders building material.
(3) In terms of the multiple test, the dominant impression is that Entrepreneur CC is the employer and
Tambo is the employee.
(4) Because Entrepreneur CC can tell Tambo what to do, where to do it and how to do it,
Entrepreneur CC as the employer has control over all that Tambo does.
(3) is the correct answer. Although builders are usually independent contractors, in the case of Tambo
the dominant impression is that he is an employee of Entrepreneur CC. (1), (2) and (4) are incorrect.
Concluding employment contracts
- Requirements for the completion of the contract is that there must be consensus between the parties to the
contract about the terms and conditions of the contract. A term to be agreed upon is the period of
employment (can be fixed term or indefinite)
- LRA does not define diff types of employees but these types can be distinguished:
Permanent and temporary employees
Temporary and probationary employees
Temporary, casual and part-time employees
Full-time and part-time employees
Managerial and non-managerial employees
- Requirements for a valid contract of employment:
1. Must be agreement
2. conclusion of the contract has to be lawful
3. parties must have the necessary capacity to enter into the contract
4. performance by the parties
5. obligations must be possible and the required formalities have to be complied with
Activ- Which of the following would be valid contracts of employment?
1. Peter, aged 14, approaches RatRace CC. RatRace had advertised a post in the local newspaper for a
delivery boy. Peter agrees to the terms and conditions proposed by RatRace.
2. David is employed by Paint CC in order to paint a house. Unknown to either David or Paint CC, the
house had burnt to the ground six months before the contract was concluded.
3. Steven and Michael enter into a contract. Steven is under the impression that he has contracted to
build Michael a house, while Michael believes that Steven has offered him full-time employment as
manager of a building site.
4. John concludes an employment contract with Mark and, in terms of the contract, Mark is expected
to murder Mrs G.
5. Billy, aged 18, concludes an employment contract with RatRace. At the time the contract is
concluded, Billy's father is overseas on a business trip, and the father is totally unaware of what
Billy is doing.
6. Joyce concludes an employment contract with Mrs C. Because Joyce can barely read, they conclude an
oral employment contract.
7. Larry is employed as a merchant seaman. Because Larry can barely read, he and his employer enter
into an oral employment contract.
Only 6 and 7 constitute valid contracts of employment. An employment contract does not have to be in
writing, it can be concluded orally. Peter is too young to conclude a valid contract of employment. David
cannot conclude a valid contract to paint a house, because the house had burnt down, and the obligations
in terms of the contract will therefore be impossible. Steven and Michael clearly do not have consensus
about the obligations in terms of the contract. John cannot conclude an employment contract to murder
Mrs G because such an action is clearly unlawful. Billy is under the age of 21 and therefore can only
conclude a valid contract of employment with the assistance of his father.
, Activ- Jenny is appointed for one month to make sure that all the marks in the examination papers were correctly
added up. Jenny will be paid at the end of the month. However, after two weeks on the job, Jenny has not
received a single examination paper to check. Is Jenny entitled to be given examination papers to check?
Would your answer be different if Jenny was paid for each examination paper that she checked?
Anna is doing her apprenticeship at a large auditing firm. The firm has employed too many clerks and, as
a result, Anna often plays computer games on the computer to pass the time. Is Anna entitled to complain
to management about the lack of work?
Did you mention in your answers that there is, in general, no duty on an employer to provide an employee
with work, except where the employee's wage depends on the work provided by the employer or if the
employee requires work in order to maintain or develop skills?
Activ- The leading case in regard to restraint of trade is Magna Alloys & Research
Consider the following rules dealing with restraint of trade: Which of the above rules were formulated by the
court?
A) A restraint of trade clause which is contrary to public policy will be unenforceable.
B) If an employer seeks to enforce a restraint of trade clause, the employee bears the onus of proving
that the clause is contrary to public policy.
C) In deciding whether or not the restraint of trade clause is contrary to public policy, the court will
consider the circumstances prevailing when the contract was concluded.
D) The court may decide that part of the restraint of trade clause is enforceable and part of it is
unenforceable
Statement 1 is correct. A, B & D were rules formulated by the court. C is not correct. In deciding whether the
restraint if the restraint of trade clause is contrary to public policy, the court will consider the circumstances
that prevail when the enforcement of the clause is sought and not when the contract was concluded. All the
other statements are self-explanatory.
Activ- Carl works as a bartender at the Hotel Las Vegas in Gauteng. In terms of his contract of employment,
Carl works fourhour shifts on Monday, Wednesday and Saturday evenings and is paid R250 per shift.
One Saturday night a fight starts in the bar. Carl tells the people involved to leave the bar. As they leave,
one of the people involved in the fight – Barney - turns round and swears at Carl. Carl ignores the insult,
but a few minutes later, when he (Carl) fetches something in his car, he runs into Barney in the parking
lot just outside the premises of the hotel. They get into a fight and as a result, Barney gets injured and has
to spend a week in hospital and his medical expenses are R25 000.
Which one of the following statements is the most correct one?
1. Carl is not an employee of the Hotel Las Vegas and therefore Barney cannot sue the Hotel Las
Vegas on the basis of vicarious liability.
2. Because Carl did not act negligently, Barney will be unsuccessful in his efforts to sue the Hotel
Las Vegas on the basis of vicarious liability.
3. Barney can sue the Hotel Las Vegas on the basis of vicarious liability, but the success of his claim
will primarily depend on whether it is found that Carl acted in the course and scope of his
employment.
4. Because Carl reacted to the verbal abuse by Barney, neither he (Carl) nor the Hotel can be held
liable for Barney’s damages.
5. Because Carl acted unlawfully by assaulting Barney, it is neither fair nor legally possible to hold
the Hotel Las Vegas vicariously liable.
Statement 3 is correct as it contains the most correct statement. Statement 1 is incorrect. The facts
clearly state that Carl is an employee of Hotel Las Vegas and also mentions his contract of employment.
Statement 2 is incorrect. The act must have been culpable, in other words either wilful or negligent. It is
not clear from the facts whether Carl acted at all or showed some culpable behaviour. Statement 4 & 5
are incorrect. This will not constitute defences for a claim based on vicarious liability. If the
requirements for vicarious liability are met the employer can be held liable. These requirements are: (a)
there must be a contract of service between the employer and employee, (b) the conduct of the employee
must have constituted a delict, namely (c) there must have been an act or omission, (d) which is unlawful
(e) and culpable. (f) A third party must have suffered prejudice and (g) the act must have caused the
patrimonial damage to a third party.
Activ- F is employed by P. In terms of the written contract of employment between F and P, one month's notice
of termination must be given. F and P disagree about the results of a soccer match, and the disagreement
is of such a nature that P gives F one month's notice of termination of employment.
It is clear that in this case, the period of notice agreed to by the parties in the contract of employment has
been given. In other words, the termination is lawful. However, it should be clear that something is wrong
-an employer should not be in a position to terminate the employment of an employee because of a
disagreement about the results of a soccer match.
