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RIGHTS AND DUTIES
OF PARTIES IN THE
CONTRACT OF
EMPLOYMENT
Introduction
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Employment relationship sets certain rights
and obligations on parties.
Each party to a contract has an obligation to
meet his/her obligations in employment
contract.
A breach of either party to a contract may
entitle the other party remedies available at
common law or under statutory law.
Employer’s rights
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• The employer has the following rights;
▫ Right to receive equitable services from his/her
employee
▫ Right to protect confidential information relating to
his financial or business affairs
This right is both common law and statutory. It is
provided for under s.101 of the ELRA and s.59 of
LIA. See also the PSA, 2002 its Regulations and
Scheme of 2003
▫ Right to form employers’ organizations or
associations-s.10 of ELRA
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Right to formulate workplace policies and
workplace practices
Right to see his lawful instructions or directives
obeyed by his employees
Right not to see unfavourable or unfair
competition from his own employees
Right to control the affairs of his business and
selection of employees
Duties of the employer
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• Employer has the following duties to an
employee;
▫ Duty of mutual trust and confidence.
This basically is the duty that cuts across both
parties to an employment relationship.
Both the employer and employee are expected not
to act in a manner which jeopardises an implied term
of mutual trust and confidence which enables their
relationship to continue.
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• Duty to provide work
▫ It is upon the employer to provide the work to an
employee. The employee has no obligation to look on
what to do if the employer has not provided him what
to do.
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Duty to pay his employees
An employment contract is usually an exchange
agreement of labour or skills with a reasonable
pay in monetary value or in kind.
The duty to pay an employee is there regardless
of whether the employer has given the employee
work to do or not.
A mere fact that the employee has not been given
work, does not remove the right upon employee to
have his wage.
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An employer, for instance, may decide to keep
certain employees idle in order to stop them going
to work for a rival competitor.
This may be aimed at stopping the competitor
from taking advantage of the individual skills,
abilities and expertise. This period of idleness is
what is termed as ‘garden leave’.
Nevertheless, the employer has duty to pay.
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Duty of care
The employer has several responsibilities towards
an employee. These include;
Implied duty to take all reasonable steps to
provide and maintain a safe system of work so as
not to expose the employee to unnecessary risks
of injury.
In the case of Wilsons and Clyde Coal Co Ltd v
English [1938] AC 57 (HL) the court stated that;
The master has duty to see his servants do not
suffer through his personal negligence such as
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Failure to provide proper and suitable plant;
Failure to select fit and competent servants;
Failure to provide a proper and safe system
of working; and
Failure to observe statutory regulations.
This duty of care extends to all such circumstances
where the employer ought to have taken reasonable
and practicable measures to ensure safety of his
employees.
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The test was stated in Stokes v GKN Ltd [1968] 1
WLR 1776 that the overall test is the conduct of
the reasonable and prudent employer taking
positive thought for the safety of his workers in the
light of what he knows or ought to know.
The employer is supposed to take reasonable care in
respect of the safety, health and welfare of the
employee specifically those working in industries and
those covered under the Occupational Health and
Safety Act (Act No 5 of 2003) and the Workers’
Compensation Act (Act No 20 of 2008)
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The employer is duty bound to observe incidents and terms
provided for under the ELRA 2004 such as provision of rest
hours, rest days and leaves such as annual leave, sick leave,
maternity leave paternity leave etc See PART III Sub Part B
and Sub Part D of the ELRA 2004
The employer is supposed to keep the record as per
section 96 of the ELRA 2004. These records includes
the records of any remunerations paid to the
employee and written particulars referred under
section 15 (1) of the ELRA 2004
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The employer has the duty to provide a trade union
which is recognised as per section 67 of the ELRA
2004 reasonable and necessary facilities to conduct
its activities at the work place.
This is as per section 60 (3) of the ELRA 2004; under
section 67 (1) of the same Act a registered trade
union that represents the majority of the employees
in an appropriate bargaining unit shall be entitled to
be recognized as the exclusive bargaining agent of
the employees in that unit
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Employer has the duty to insure his workers under the Workers’
Compensation Act to cater for injuries occurring in the accident
when the employee is out of or in the course of employment or
in case for the occupational disease attacking the employee
working for the employer.
Employer is supposed to pay an employee wages and other
remunerations due to an employee as per section 27 of the
ELRA 2004, and further that the employer is supposed to pay
the employee the required wage not below the minimum wage
out of which the employee may apply the provisions of section
41 (3) of the Labour Institutions Act
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The employer is further duty bound to inform the employees of
the minimum wage rates in force by posting notices at the
workplace or by any other more effective means
Minimum wage rate is set by the Minister by making the a wage
order determining the minimum wage and other conditions of
employment of employees in any sector and area of economy
after considering the recommendations of the Wage Board
appointed under section 35 of the LIA .
The wage Order is made as per section 39 of the LIA by notice in
the Gazette and with effect from the date specified in the gazette.
See also section 39 (2) o f the LIA 2004)
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NOTE: Section 34 of the LIA defines the ‘Minister’ in
as far as wage board is concerned as
a) the minister for the time being responsible for the public
service if the sector in respect of which the provision of this
part are to apply is the whole or part of the public service;
or
b) the minister for the time being responsible for labour
matters in respect of any other sector.
The employer has the duty to treat employees with
respect and humanity.
He is not supposed to victimise the employee
Rights of an employee
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There are number of rights which an employee is
entitle to enjoy in an employment relationship.
These include;
Right to be provided work
There are certain special relationships and
circumstances which make it necessary for the
employer to provide work. There certain skills
which once kept without being utilized, the
employee runs a risk of losing his market value
and this may disadvantage him in case he seeks
new employment.
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Right to be paid
Right to equality (Protection against unfair
discrimination)
Right to be informed and consulted on any change
that affects terms and conditions of employment
Right to have safe and secure workplace
environment
Right to be trained or afforded opportunity for
carrier development
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Right to be compensated for injuries arising out of
and in course of employment.
Right to be given paid leave
Right to be given fair trial in disciplinary
proceedings
Right to have fair termination of his employment
Right to have better working tools at workplace, etc
S. 9 provides for the right of the employees to form
and join trade union as well as participating in
lawful activities of the trade union
Employee’s obligations
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The employee has the following obligations
towards his employer;
To tender his services as required by the contract
This could be one of the most important obligations
which an employee has towards his employer.
The employee is expected to offer his full
contractual services to his employer and be
rewarded accordingly. This goes together with
working in accordance to agreed hours of work.
Punctuality is essential at any workplace in order to
ensure effective productivity and efficiency.
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To abide with lawful instructions or directives from
his employer
To protect the property of his employer or to serve
and protect the employer’s interests and act in
good faith
To conduct himself in such a manner that will not
tarnish the good image of the business of his
employer
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To keep confidential such information which, if
disclosed, may harm the business of his employer.
There is both common law and statutory prohibition
against divulging employer’s confidential information.
S.101 of the ELRA & S.59 of LIA are just and example of
this statutory prohibition.
It is in the public interests that the employer should be
allowed to ran freely his business without threats of his
confidential information be disclosed to his detriment.
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In the case of Camelot v Centaur Publications Ltd
[1998] IRLR 80 a copy of the draft accounts of the
company which ran the National Lottery was sent
by an unknown employee to an interested
journalist.
The information revealed, amongst other matters,
increases in remuneration for some of the
company’s directors.
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The Company asked the court to ensure
that the leaked documents were returned,
so that they could identify the employee
who caused the leak.
The Court accepted that it was in the
public interest to enable the employer to
discover a disloyal employee the
document be sent back to the employer.
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To respect and cooperate with his fellow at work
place and elsewhere within the scope of his
employment
To work competently and diligently
To act in mutual trust and confidence.
The employee owes his employer a fiduciary duty
which is derived from the common law duty of
mutual trust and confidence.
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The employee is, for instance, not
expected to compete unfairly with his
own employer or work against the
interests of his employer.
The employee should not use the
advantage of gaining confidential
information or trade secrets belonging
to his employer to his own advantage.
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In the case of CyberScene Ltd and Others v i-
Kiosk Internet and Information Ltd 2000 (3) SA
806 a number of senior employees resigned to
form a new company.
Because of their positions they had access to the
employer’s confidential information relating to its
business and operations. The former employer
claimed breach of fiduciary duty since the
employees used such confidential information to
compete unlawfully with their former employer.
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The Court held that fiduciary duty does
not cease automatically after
termination of an employment. The
employees may use general skills,
knowledge and experience for their
personal gain but not using their
employer’s confidential information to
their advantage.
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Generally, the question of rights and duties of
the parties to an employment contract has to
be determined by looking on;
Terms and conditions of employment agreed by
the parties
Minimum standards provided by the law
Common law principles
Implied rights and duties.
