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Labour Law Textbook summary
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lOMoARcPSD|4079685Text book summary-labour-law
Criminal Law (University of the Free State)
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Chapter 2 Exclusive Protection for employees in terms of legislation
1. Who is an employee?
The primary aim of the LRA is to promote sound relations between employers and employees – workers
falling outside the LRA do not obtain direct protection. The definition of an employee is generally;
Any person, excluding an independent contractor, who works for another person or for the State
and who receives or is entitled to receive any remuneration
Any other person who in any manner assists in carrying on or conducting the business of an
employer
The first part of the definition includes domestic and farm workers.
2. Guidelines to distinguish between employees and independent contractors
Three tests;
Control – control over the type of work the person does, the manner and when it must be done
Organisation test – is the person part and parcel of the business and not just an accessory
Dominant impression test – favoured by the courts and considers the employment relationship
as a whole
S200A of the LRA provides a rebuttal presumption of an employment relationship between the parties.
The Code also provides a comparison between an employee and independent contractor as follows;
Employee Independent contractor
Object of the contract is to render personal Object of the contract is to produce a specified
services result or perform specific work
Employee must perform the services personally Can perform through others
Employer may choose when to use services Must perform work within period fixed by contract
Contract terminates on death of employee Contract need not terminate on death
Contract terminates on expiry of period of service Contract terminates on completion of work or
production of desired result
3. Categories of employees
Most common categories of employees are;
Type of employee Description
Permanent employee Person employed for indefinite period
Temporary / Contract / fixed term Employed for a specified period or contract
Casual Works for the same employer but not more
than 3 days per week
Can be either temporary or permanent
Part time Person works only at certain times
Works on certain days but limited to three days
per week
Can be either temporary or permanent
Note the definition of employee does not distinguish between the categories.
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4. Unprotected workers
a. Illegal workers
In terms of the common law an illegal contract is void or voidable but in terms of the Constitution and
the LRA provision is made for illegal workers. (see Kylie v CCMA and others which was a decision
overturned by the Labour Appeal Court). Similarly in the Discovery case, the Court has found even
though workers may not be protected by the LRA they are protected by the Constitution.
Thus if a person is not protected by the LRA they can obtain protection via the Constitution in;
S23 – everyone has the right to fair labour practices
S10 – everyone has the right to dignity
b. Statutory exclusions of workers
Specific exclusions from the definition of employee in the LRA are;
NIA, SA secret service and SA National academy of intelligence
Staff of Comsec
Members of the NDF
5. Who is an employer?
The definition of employer is not provided for in any legislation and must be looked at in terms of the
definition of an employee. An employer may thus be defined as;
Any person or body who employs any person in exchange for remuneration
Any person who permits any person to assist him in conducting his business
This includes the issue of labour brokers who generate other concerns such as;
Difficult to identify the employer / employee relationship
Employee ends up with reduced salary as the broker extracts some rent for their services
The protection for unfair dismissal is not shared between the broker and the client
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Chapter 3 The impact of the common law on the contract of employment
1. Introduction
The fact that parties are in an employment relationship has consequences notably as a result of labour
legislation and the impact of the common law relating to basic rights and duties of employees and
employers. Both parties have rights and duties that, even though may not be expressly stated in the
contract of employment, flow from the common law.
2. Duties of the employer and the employee
a. Duties of employers
To remunerate the employee
The primary duty is to pay the employee and then if he does not work then no pay is due. The BCEA
does though provide for paid leave in certain circumstance but principle of no work / no pay still applies.
To provide work
The employer is generally not required to provide the employee with work unless the employee’s salary
is commission based or where the employer’s success is dependent on the performance of certain duties
on a regular basis – such as acting.
To provide safe working conditions
This includes the provision of protective equipment and the exercise of proper supervision. It can also
extend to protection of harassment by the employer or colleagues in terms of the EEA.
It also encompasses the duty of an employer to a compensation fund should the employee be injured.
To deal fairly with the employee
This is captured by the constitutional duty to fair labour practices. The LRA also protects employees
against unfair treatment during the time of employment and unfair dismissal.
b. Duties of employees
To render services to the employer
The primary duty – to render labour potential to the employer
To work competently and diligently
When the employee enters the contract, he/she guarantees that they will be capable of doing the work
To obey lawful and reasonable instructions
The employee is under the control of the employer and non compliance with this rule is subordination
and breach of contract unless the order is outside the scope of the employment contract
To serve the employers interests and act in good faith
The employment relationship is built on trust and is an implicit term in the contract
3. Doctrine of Vicarious Liability
This provides that an employer is liable for the unlawful or delictual acts of an employee performed
during the course of business. This is regulated by the common law and not legislation. This doctrine
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