Summary
Summary Topic 2
- Course
- Mercantile Law 311 (311)
- Institution
- Stellenbosch University (SUN)
Comprehensive summary of all examinable material.
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Topic 2: The Contract of Employment2.1 General
2.2 The contract as a source of terms and conditions of employment.
2.2.1 What do we mean by ‘terms and conditions’ of employment?
Terms and conditions derived from different sources:
o Express terms agreed to by both parties
A contract
o Common law implied terms (naturalia)
o Statute (NMWA/BCEA)
o Collective Agreements
Ts&Cs usually contain:
o Job description
o Working hours
o Sick leave
o Length of notice of termination
o Etc
2.2.2 Sources of terms and conditions and their interaction.
There is a clear goal of labour legislation to promote fair terms and
conditions of employment.
o Directly through adoption of minimum standard legislation.
o Indirectly through promotion of collective bargaining.
(A) Contract (common law)
o Express terms
o Terms implied by the common law (naturalia)
o Terms of an individual employment contract can be varied by
means of collective bargaining concluded between trade
unions and an employer (23(3) LRA)
(B) Legislation – the BCEA and NMWA
o Provides for basic rights which no less may be agreed to in
an employment contract.
, 2.3 (A) Contractual Terms.
2.3.1 Definition of an employment contract.
An agreement between two parties ito which one party (employee)
works for another party (employer) in exchange for remuneration.
o An employment contract needs to comply with the general
requirements of our law for a valid contract.
o Does not have to be in writing.
o Based on consensus
Examples of where consensus was lacking p32-33
o Reciprocal: no work = no pay.
Essentialia – if all 3 are not present then there is no contract of
employment.
o 1. Rendering of personal services.
o 2. Payment of remuneration.
o 3. Element of control or supervision on the part of the
employer.
An employment contract is made up of:
o Expressed terms.
o Implied terms.
Naturalia: read into the contract through working of
the law (common law)
Consensus is not a requirement for these terms to
apply.
o Tacit terms.
Certain Doctrines and Principles of the common law are applicable:
o The doctrine of vicarious liability.
o The restraint of trade doctrine.
Common law rules regarding termination of the contract and breach
of contract are applicable.
o Including the remedies – specific performance & cancellation
& damages.
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