Employees who work at night benefit from special protection within the meaning of the BCEA. Night work is work done between 6 p.m. and 6 a.m. the next morning. An employer can only require an employee to work at night if there is an agreement with the employee (for example. B in the employment contract), if the employee receives compensation (which may be a shift allowance) or a reduction in working time, and if transportation is available between the employee`s home and the place of work. There are a number of strict regulations for night work, including those contained in a code of conduct adopted in the spirit of BCEA to ensure the health and safety of employees who work at night. A disciplinary code may take the form of a collective agreement between the employer and one or more trade unions; it may be a policy imposed unilaterally by the employer; or it can be included in the working conditions. The starting point should be that a written employment contract is not a mandatory condition for the validity of an employment relationship.
Compensation Fund Employees are also entitled to compensation for workers` compensation and occupational diseases16 as well as unemployment and maternity benefits17 from statutory compensation funds to which employers contribute. It is therefore more logical to conclude in advance a detailed employment contract with the employee and therefore at the same time to link it to the disciplinary rules of the company and other than to provide a list of prescribed details rather ad hoc or not contextualized. A global contract also has the advantage of being signed by both parties and therefore legally binding. This is very often the essence of an employment relationship – it describes its beginning, currency and termination – since in most cases the document “speaks for itself”. The transfer of a company could therefore lead to the termination of existing employment contracts. Article 197 may also affect the freedom of the new employer to apply certain selection criteria in the event of a reduction. In Keil v Foodgro (a division of Leisurenet), Keil was first employed by MacRib, and then by Foodgro, which bought MacRib as a management company. Keil was employed by both employers in the same position. Foodgro tried to justify Keil`s choice for the cut on the grounds that it had applied LIFO and that Keil`s old contract had been replaced by a new one when Foodgro bought the company.
The General Court rejected that argument on the ground that Article 197 provided for continuity of employment, so foodgro should have taken into account Keil`s service at MacRib. Foodgro`s choice for dismissal was therefore fundamentally flawed. Keil received nine months` compensation. The Basic Conditions of Employment Act (No. 75 of 1997 – BCEA) requires an employer to provide an employee with various prescribed employment details in writing when working with that employer. This is to ensure safety between the employer and the employee and attempts to protect the “vulnerable” employee from the employer holding the scholarships in the event of disagreement on the details. In some cases, an employment relationship is not terminated by either the employer or the employee, but as of right. This happens, for example, when an employee`s residence or work permit expires and is sometimes referred to as “automatic dismissal.” In SA Broadcasting Corporation v. McKenzie, the Labour Court of Appeal summarized the main differences between the employment contract itself and the “employment contract” (locatio conductio operis): the employment contract is the basis of the relationship between an employee and his employer. It combines both parties in an employment relationship, regardless of the form of the contract. The Justice for Employment Plan is at the heart of the process of implementing workplace support measures.
Cost. An employee is usually paid by his or her employer for the costs incurred in performing his or her work, while an independent contractor usually bears his or her own business expenses; and the appointment under this contract is a full-time appointment, and the employee must devote all commitment, energy and attention to the employer`s business. In addition to the employer`s three main obligations, which are discussed below, employers are also required to grant employees their rights with respect to service contracts, collective agreements and applicable legislation and to comply with certain legal obligations imposed in the interest of employees. This information mentioned above constitutes the essence of the employment contract. However, since the employment contract forms the basis of the relationship between the employer and the employee, it is particularly desirable that the employer ensures that the employment contract is properly drafted in order to regulate the scope of the worker`s services and to deal appropriately with issues such as, inter alia, trial periods. the protection of the employer`s confidential and/or proprietary information and whether the employee is subject to a trade restriction. Prior to 1995, an employee could be dismissed under the employment contract, which could allow any reason for dismissal. Since 1995, an employee can only be dismissed for misconduct, operational reasons and incapacity for work.
The Labour Relations Act 1995 is a key piece of legislation as it recognizes the need for quick and easy access to justice in labour disputes. The Labour Court had the status of a High Court and was therefore not accessible to all workers. In NEHAWU v. University of Cape Town, the Constitutional Court overturned another decision of the Labour Appeal Court which narrowly interpreted the Labour Relations Act 1995. It had been argued that the term “everyone” did not include a university or a business, but the court concluded otherwise. In addition, the court held that under the original section 197 of the Industrial Relations Act 1995, employment contracts are automatically transferred when companies are transferred, regardless of the wishes of employers. An employee may not be required to be a member of a majority union before the beginning of his employment. The latter is called a post-entry-closed-shop agreement. The opposite of this is an agreement made before entry: that is, an agreement concluded requiring an employee to be a member of a majority union before taking up his or her job. Shops closed before entry are not allowed in South Africa. iii. If the entrepreneur is economically dependent on the customer or if he is free to also earn income from other sources.
In this regard, the courts have distinguished between personal and economic dependence. A person who is truly self-employed cannot be economically dependent on his “employer” if he retains his ability and power to enter into contracts with other persons or organizations and to provide services to them […].