LEEDS BECKETT UNIVERSITY – LEEDS LAW SCHOOL
ESTABLISHMENT OF A CONTRACT OF
EMPLOYMENT
Lesson 3
Learning Outcomes
• Define a contract of employment
• Know the nature of the contract of
employment
• Identity the type of contract entered into
What is a contract of employment?
Sec 2 Employment Act Cap. 47:01, a contract
of employment is “..an agreement, whether
oral or in writing, expressed or implied,
whereby one person agrees for a wage or
other benefit or both to let his labour to and
perform it under the orders of another person
who agrees to hire it.”.
What is a contract of employment?
Trade Unions and Employers Organisations
Act Cap. 48:01
Trade Disputes Act Cap. 48:02
ILO
Power Nleya v. Item Botswana (Pty) Ltd Case
No. IC 147/96
Formation of a Contract of
Employment
• Generally rules applicable to all contracts
are applicable to a contract of
employment.
• Contract of employment comes into
existence when, the employee enters
into an agreement with the employer
• Employee renders services and employer
remunerates
• Similar with any other contract at
common law and general formalities
Essential Elements
• Voluntary agreement between the parties
• Capacity
• Agree to perform specified or implied
duties to the other party
• Services to be carried out for an indefinite
or specified period
• Employer assents to payment for a certain
period or permanent
• Performance
Form of a Contract of
Employment
• There is no requirement as to the way a
contract must be strictly concluded.
• Sec 14 of the Employment Act allows for a
contract of employment to be concluded
orally or written or either implied or
expressed.
• The parties should decide on the terms
provided they remain within the legalities of
the law either common (establish what this
means) or statute law.
Form of a Contract of
Employment
There’s no limitation to what should be agreed
but there are things which need to be
concluded to render a contract operable for
instance the job description and terms of
contract.
See Sigwele v Botswana Life Insurance
The Parties
• The first question to be asked when seeking
to resolve any labour-law problem is whether
the parties are indeed 'employees' and
'employers' within the meaning of the
applicable statute and/or the common law.
• In most cases, the identification of persons
as employers or employees is a relatively
simple matter.
The Parties……
There are, however, a number of fringe cases
in which it is not immediately apparent whether
the parties have entered into a contract.
The Employer
• Sec 2 Employment Act:
“..any person who has entered into a contract of
employment to hire the labour of any person”
• Sec 49 Interpretation Act:
“…includes a body corporate and an
unincorporated body as well as an individual”
• An employer can be in various legal form
The Employer Cont….
• Boikanyo Ngaka and 8 Others v Gaborone
West Express Dry Cleaners (Pty) Ltd,
Case No. IC. 42/2003
• Ivy Clara Marufu and Others v White Dove
(Pty) Ltd, Case No. IC 252/2000
The Employee
• Sec 2 Employment Act:
“…any person who has either before or after the
commencement of this Act entered into a contract
of employment for hire of his labour”
Not every person serving the government is an
employee for purposes of Employment Act
The Employee
• Public servants not covered by
Employment Act.
• Botswana Postal Services Workers Union
v Botswana Postal Services Case No. IC
20/96
• Selefa Ditshwane v Botswana Railways
Organisation Case No. IC 90/95
• Interpretation Act has its own limitations
Formalities
• No requirement to form a contract at
common law
• Oral or written
• Employer and employee can reduce an
oral contract to writing (does not alter the
terms). Sec 20 Employment Act
• Moloi and Others v Jamela (Pty) Ltd
(1992) 13 ILJ 1012
Illegal Contract of
Employment
• Unenforceable agreement to render
services
• Contrary to the employment laws
• Failure to meet conditions
• Failure to observe legal formalities
• Nullification of the contract
Harsh Khapkar v Southern Business
Solutions (Pty) Ltd Case No. IC684/04
Identification of Contract of
Employment
• Difference between an independent
Contractor and Employee
• Contract of service
• Contract for service
– Employee is employed under the contract of
service
– Independent contractor are employed for
some work/service and upon the being
completed the contract terminates.
Control Test
• Looks at the control over the work the person
does
• The manner in which the work must be done
• When the work must be done
• Example: Master and Servant
• Sv Lyons Brooke Bons (Pty) Ltd (1981) 2 ILJ
271
• Tucker v SA Broadcasting Corporation (1985) 6
ILJ 570
Control Test
The case of Carpenter Joint Apprenticeship Committee v
WCAB (Wisniewski) 1995 the court laid down the factors
to be considered as follows:
– The control of the manner in which the work must be done.
– Responsibility of the result only
– Terms of agreement between the parties
– Nature of the work or occupation
– Skill required for performance whether the one employed is
involved is involved in a distinct occupation or business
– Which party supplies the tools
Control Test
Contract For Services
Employer not interest in how the job is done eg A is
given to build a house and he determines how he will go
about doing it. Employer wants a completed house.
Organisation Test
• Looks at whether the person is part and
parcel of the business
• The person’s work is intergrated in the
business of the employer
• Not an accessory to the business
• S v Amca Services (Pty) Ltd, 1962 (4) SA
537
Dominant Impression Test
• Consider the employment as a whole not
factors
• Liked by the courts
• Its incorporated into the definition of an
employee
• Dempsey v Home and Property (1995) 16
ILJ 378
• Michael Jordan v Tamlac (Pty) Ltd Case
No. IC 113/2004
Who is an employee?
• Employee
• Independent Contractor
THANK YOU
