That protection against unfair dismissal and unfair labour practises is not shared between the TES and the client CHAPTER 3: THE IMPACT OF THE COMMON LAW ON THE CONTRACT OF EMPLOYMENT DUTIES OF THE EMPLOYER AND THE EMPLOYEE: DUTIES OF THE EMPOYERS: To remunerate the employee To provide the employee with work To provide safe working conditions To deal fairly with the employee DUTIES OF THE EMPLOYEE: To render services to the employer To work competently and diligently To obey lawful and reasonable instructions To the employer’s interest and act in good faith (also known as a fiduciary duty) THE DOCTRINE OF VACARIOUS LIABILITY: According to this doctrine an employer is liable for the unlawful or delictual acts of an employee performed during the course of business The operation of this doctrine is regulated by the common-law and not by employment legislation It is based on the principle that the employer (who by its profitable operation creates a risk of harm to others), has to compensate those who suffer injury as a result of the wrongful conduct of an employee Vicarious liability protects third parties It does not mean the employer will have no recourse, depending on the circumstances; the employer can discipline the employee for misconduct and even repayment in this regard There are three requirements that must be met for the employer to be liable for the employee’s wrongful conduct: must be a contract of employment The employee must have in the course and scope of employment The employee must have committed a delict. CASE LAW: Bezuidenhout NO v Eskom The employee had been provided with a marked as Eskom property for the purposes of carrying out his duties
JUSTIFICATION GROUNDS FOR DISCRIMINATION: Section 6(2) of the EEA – provides two grounds of justification for allegedly unfair discrimination, namely: Affirmative action Inherent job requirements AFFIRMATIVE ACTION: Affirmative action measures have to be applied by designated employers to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational categories and levels in the workplaces of those employers. Designated groups Designated employers – section 1 Black people Woman People with disabilities The generic term “black people” is defined to include Africans, Coloureds and Indians, and the group also includes South African citizens of Chinese descent Larger enterprises, with 50 or more employees Employers who employ fewer than 50 employees, but have an annual turnover specified in terms of Schedule 4 of the EEA Municipalities Organs of state such as Airports Company of South Africa (ACSA), the Central Energy Fund, the Development Bank of South Africa, Eskom, the SABC, the SA Post Office Limited and Telkom SA Limited Employers that are designated as such in terms of collective agreement If an employer uses affirmative action as a defence against unfair discrimination, it should be remembered that affirmative action measures must be consistent with the EEA. INHERENT REQUIREMENTS OF THE JOB: If the job in essence requires a certain attribute(s) it will not be unfair to exclude people without that attribute. For example it is an inherent job requirement that a sales assistant in a lingerie shop is female The exclusion of males for this job will therefore not amount to unfair discrimination