Week 3:

Rights and duties &

Basic conditions of employment
Professor Marius van Staden
[email protected]
Rights and duties of employees
and employers
Duties of employers
• Duty of Good Faith
• Enrolment and Provision of Work
• Payment of Agreed Remuneration
• Provision of Leave
• Liability of Employer in respect of Third Parties
• Provision of Safe and Reasonable Working
Conditions
• Other Duties of Employers
Duties of employees
• Take reasonable care for the health and safety of themself and of other
persons.
• Subject to the employer’s control
• Rendering of Services
• Loadshedding? No-work, no-pay?
• Toerien v Stellenbosch University (C):
• Employee's obligation no more than to place labour at disposal of employer.
• Employer's obligation to remunerate based on availability of employee and not on
work done.
• Duty of Good Faith
• Fiduciary duties
• Phillips v Fieldstone Africa (Pty) Ltd (SCA):
• Person in position of confidence involving duty to protect interests of other, not
entitled to make secret profit at other's expense nor place himself in position where
his interests conflicting with such duty
Duty to disclose
• Eskom Holdings Ltd v Fipaza and others (LAC):
• Employee did not state that they were previously dismissed my the same
employer.
• No duty to disclose information that does not fall in exclusive knowledge.
• National Union of Metalworkers of South Africa obo Nganezi and Others v
Dunlop Mixing and Technical Services (Pty) Limited and Others (CC):
• To impose a unilateral obligation on an employee to disclose information to her
employer about the participation of a co-employee in misconduct in a protected
strike would be akin to imposing a fiduciary duty on the employee.
• In the context of a strike, the imposition of a unilateral duty to disclose would
undermine the collective bargaining power of workers by requiring positive action
in the interests of the employer without any concomitant obligation on the part
of the employer to give something reciprocally similar to the workers in the form
of guarantees for their safety and protection before, when and after they disclose.
• The reciprocal duty of good faith should not, as a matter of law, be taken to imply
the imposition of a unilateral fiduciary duty of disclosure on employees.
Restraint of trade provisions
• Provides that after the termination of the contract the employee be
prohibited from performing similar work in competition with the former
employer within a defined area, for a prescribed period.
• Magna Alloys-case:
• Court reversed the English law approach of treating restraint of trade as
prima facie unenforceable, restraint agreements are valid and enforceable
unless they are contrary to public policy.
• If it is unreasonable, it would be against public policy and unenforceable.
• Involves the weighing up of two competing considerations:
1. Parties to contracts should be bound by their agreements.
2. It is in society’s best interest that all persons should be permitted to engage
freely in all spheres of commerce.
• Restraint agreements remain valid until such time that an employee
who contests discharges the onus of proving that it is contrary
to public policy
 Restraint of trade provisions
• Factors to determine reasonableness:

• Does restraint cover a legitimate interest deserving of

protection?
• Is that interest was being prejudiced?
• If that interest is being prejudiced, the extent thereof against Basson-
the interest of the party who is being precluded from being case
economically active.
• Any aspect of public policy which requires that the restraint be
enforced or not.

• Does the restraint go further than is necessary to protect the

Reddy-
employer’s protectable interest?
case
Basic conditions of employment
 Hierarchy of sources
• Common law – default option
• Contract of employment – overrides common law & takes
precedents over the BCEA only if terms are better than BCEA
Bill of Rights
• BCEA – precedes common law and contract of employment
(unless terms are better than BCEA) Core BCEA rights
• MD and SD - precedes common law, contracts of employment Bargaining council CA
and BCEA
CA
• CA - precedes common law, contracts of employment and BCEA
(unless core right) SD and MD
• Bargaining Council CA – precedes common law, contract of
BCEA
employment, MD and SD, CA. May not vary core rights EXCEPT
MAY REDUCE ANNUAL LEAVE TO TWO WEEKS PER YEAR Contract of employment
• Core BCEA rights – only subject to constitutional norms Common law
• s 7 – family responsibility leave, s 9 – working hours, s 17(30)
and (4) – night work, s 20 – annual leave, s 22-24 – sick leave, s
25 – maternity leave and provisions relating to child labour.
BCEA
• The stated purpose of the Act is to advance
economic development and social justice by
establishing and enforcing minimum conditions of
employment, and by defining the circumstances
• in which these minimum standards may be varied.
The policy that underlines the Act is referred to as
‘regulated flexibility’; balance between employer
and employee interests in security can be achieved.
• Default set of conditions of employment.
BCEA
• Rand Water v Stoop & another (LAC):
• BCEA is not partisan towards employees.
• Promotes right to fair labour practices for both
employees and employers.
• Both employees and employers can claim damages for
breach of contract.
• Section 77(3) and s 77A(e) of BCEA — Labour Court has
concurrent jurisdiction with civil courts in any matter
concerning contract of employment.
• Court empowered to order specific performance or
award damages.
BCEA
• Section 4 of the Act provides that a basic condition of
employment constitutes a term of any contract of
employment except to the extent that:
• any other law provides for a more favourable term;
• the basic condition has been replaced, varied or
excluded in terms of the Act; or
• a term of the contract of employment is more
favourable to the employee than the basic condition of
employment.

• + collective agreements
BCEA
• Section 50 of the BCEA empowers the Minister to make a
determination that replaces or excludes any basic condition
of employment in respect of:
• any category of employees or category of employers;
• any employer or employee in respect of whom an
application is made by:
• the employee;
• a registered employers’ organisation; or
• the employer and a registered employers’
organisation.
Enforcing conditions of
employment
• Contracts
• Contracts of employment may be enforced through the civil courts,
or in the Labour Court.
• Section 77 of the BCEA confers concurrent jurisdiction on the
Labour Court, with the civil courts, ‘to hear and determine any
matter concerning a contract of employment, irrespective whether
any basic condition of employment constitutes a term of that
contract’.
• Section 73A
• Remedies?
Enforcing conditions of
employment
• Statutory minimum conditions
• Section 63: labour inspectors,
• function is to promote, monitor and enforce compliance with the
BCEA and other labour legislation.
• Labour inspectors are given powers of entry into workplaces, to
question persons and inspect documents and records.
• A labour inspector is required to endeavour to secure an undertaking
from an employer to comply with the provision concerned.
• If the employer fails or refuses to comply the matter is referred to the
Director-General of the Department of Labour.
• There is a right of appeal from the Director-General to the Labour
Court.
• Section 77A gives the Labour Court broad powers in relation to
compliance with the Act, including the power to impose a fine.
Question
• Fumane is an office worker who works five days per
week from Monday to Friday. *She earns R 6 000 per
month. As Fumane did not receive a written contract
from her employer she wants to know what conditions
of employment are applicable to her. Briefly explain to
Fumane what the conditions of her employment will
be with regard to the following:

• *Why is this important?

• Threshold amount in BCEA.
• R241,110.59 per annum/R 20 092,55 per month
Annual leave
• Fumane is entitled to at least 21 consecutive days' annual
leave in a 12-month leave cycle.
• Alternatively, Fumane and her employer may agree that
leave be taken non-consecutively.
• Fumane is then entitled to one day of annual leave for every
17 days on which she worked or was entitled to be paid, or
one hour of annual leave for every 17 hours she worked or
was entitled to be paid.
• Fumane must receive full remuneration.
Family responsibility leave
• If Fumane has worked for more than 4 months she will be
entitled to three days family responsibility leave during a 12-
month leave cycle when her child is sick or in the event of
the death of her spouse or life partner, or sibling.
• Fumane’s employer may require proof of the event.
Maternity leave
• Fumane is entitled to a minimum of four consecutive months of
maternity leave.
• She may commence maternity leave at any time from four weeks before
the expected date or on a date necessitated by her medical practitioner
or midwife in the interest of her health or her unborn baby’s health.
• Fumane may not work for six weeks after the birth of her child, unless a
medical practitioner or midwife certifies that she is fit to do so.
• The BCEA does not prescribe payment for maternity leave but Fumane
may claim maternity benefits in terms of the Unemployment Insurance
Act 62 of 2001.
• Paternity leave?
• All parents – including fathers, adopting parents and surrogates – are
entitled to 10 days unpaid parental leave
Meal intervals
• Fumane is entitled to a meal interval of at least one hour
after five hours of continuous work.
• Fumane and her employer may agree that her meal interval
be reduced to not less than 30 minutes.
• If Fumane works for less than six hours per day the meal
interval may be dispensed with.
• Fumane may be obliged to perform duties during a meal
interval which cannot be left unattended or cannot be
performed by another employee.
• Fumane will not be paid for the time taken off work for a
meal interval if longer than 75 minutes.
Notice of termination of service
• Fumane or her employer must give written notice of
termination of service of not less than one week if Fumane
has been employed for six months or less, two weeks if she
has been employed for more than six months but not more
than one year and four weeks if she has been employed for
one year or more (or is a farm worker or domestic worker
who has been employed for more than six months).
• Note that it is also possible according to section 38 of the
BCEA for Fumane’s employer to pay her remuneration in
lieu of notice.
Overtime
• Fumane’s employer may not require or permit Fumane to
work more than ten hours’ overtime a week.
• Fumane’s employer must pay her at least one and one-half
times her wage for overtime worked.
• Fumane and her employer may, however, agree for her
employer to pay Fumane her ordinary wage for overtime
worked and grant her at least 30 minutes' time off on full
pay for every hour of overtime worked, or grant her at least
90 minutes' paid time off for each hour of overtime worked.
Overtime
• Maneche & others v CCMA & others (LC):
• Employees’ refusal to perform overtime in excess of that
permitted by BCEA constituting exercise of rights, not
insubordination.
Sick leave
• During her first six months of employment Fumane will be
entitled to one day’s paid sick leave for every 26 days
worked.
• Thereafter, Fumane will be entitled to 30 days’ paid sick
leave in a 36-month leave cycle. Remember that an
employee is entitled to a number of days sick leave equal
to the number of days he or she would normally work in a
period of six weeks (Fumane works 5 days in a week and 5
X 6 = 30).
• Fumane and her employer may agree to reduce sick leave
pay with 75% of her normal pay, but then the number of
days must be increased proportionately.
Sick leave
• Fumane’s employer may require a medical certificate after
two days of absence.
• Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and
others (SCA):
• Employee defying instruction to resume work after one
week in order to complete training as traditional healer.
• Dismissal unfair because employee genuinely feared she
would suffer misfortune if course not completed.
• While traditional healers’ certificates not formally
recognised as proof of illness, such certificates to be taken
seriously by employers if they confirm that employee
suffering from culturally induced ailment.
Work on public holidays
• Work on public holidays need only be performed if Fumane
and her employer agree thereto.
• If she agrees Fumane must be paid at least her daily rate or
her normal daily rate plus the amount for actual time
worked, whichever is greater.
Work on Sundays
• As Fumane does not normally work on Sundays the work
will be considered overtime and the hours so worked will
form part of her overtime hours.
• Fumane’s employer must pay her double her wage for each
hour worked or her ordinary daily wage, whichever is
greater.
• Fumane and her employer may agree that she should
receive her ordinary rate plus time off.
Work on Sundays
• Freshmark (Pty) Ltd v CCMA & others (LAC):
• Employee was retrenched.
• Offered alternative employment but had to work on Sundays.
• Employee’s refusal to work on Sundays - unreasonable.
• Employees who unreasonably refuse offer of employment on new
terms not entitled to severance pay. 
Night work
• The employer may only require or permit Fumane to perform
night work, if so agreed, and if Fumane is compensated and
transportation is available between the employee’s place of
residence and the work.
• Papane v Van Aarde NO & others (LAC):
• Employee agreeing to night work but later refusing to work night shift.
• No evidence that night work affected employee's health as required by
s 17(3).
• Employee clearly personally agreeing to work night shifts as required by
s 17(2).
• Deliberate refusal to work night shift dereliction of duties.
• Dismissal unavoidable where employee refuses to do job for which he
was employed.
Working hours
• As Fumane only works 5 days a week her employer may
not require or permit her to work more than nine hours a
day or 45 hours in any week.
• If Fumane serves members of the public the maximum may
be extended by agreement by 15 minutes a day up to a
maximum of 60 minutes a week.
Salary deductions
• S 34(1) of the BCEA:
• An employer may not make any deduction from an employee’s remuneration
unless the employee in writing agrees to the deduction in respect of a debt
specified in the agreement; or the deduction is required or permitted in
terms of a law, collective agreement, court order or arbitration award.
• National Union of Mineworkers & others v Martin & East (Pty) Ltd
(LC):
• Company argued it could not suspend (without pay) as an alternative to dismissal, as BCEA
prohibits deductions from the remuneration of employees without consent.
• Wrong. If there is no statutory or contractual prohibition, fair suspension without pay may be
considered as an alternative to dismissal of an employee.
• Suspension without pay as a form of disciplinary penalty is not impermissible and does not
contravene the BCEA.
• The provision prohibiting deductions from remuneration without consent is premised on
remuneration or wages becoming due after a tender of services or actual  performance by
an employee.
Thank you!!
• Any questions?