The application of section 17 of the Employment of Educators' Act

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THE APPLICATION OF SECTION 17 OF THE EMPLOYMENT

OF EDUCATORS’ ACT

by

SIHLE MNGUNI

Submitted in partial fulfilment of the requirements for the degree of

Magister Legum

(Labour Law)

in the Faculty of Law

at the Nelson Mandela Metropolitan University

2016

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DECLARATION

I Sihle Mnguni, Student Number 212324497, hereby declare that the treatise for the Magister Legum (Labour Law) to be awarded is my own work and that it has not previously been submitted for assessment or completion of any postgraduate qualification to another University or for another qualification.

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SUMMARY

The purpose of this treatise is to discuss the implementation of section 17 of The

Employment of Educators’ Act1_{with a view to examining its shortcomings in fulfilling}

the requirements of fairness. Section 17 makes dismissal for transgressing any of the misconduct cases listed therein compulsory. This is so because of the use of the

term “must” in its opening sentence. The Constitutional Court in Sidumo v

Rustenburg Platinum Mines2 _{emphasizes the consideration of the totality of}

circumstances before the dismissal sanction is imposed by an employer. These include but not limited to the importance of the rule that has been breached to the employer; the basis of the employee’s challenge to the dismissal; the harm caused by the employee’s conduct; the effect of dismissal on the employee and the length of service. The treatise argues that in its current form section 17 of The Employment of Educators’ Act does not cater for the consideration of these circumstances set by the Constitutional Court.

The study will also discuss the applicable dismissal legislation in education. The Constitution of the Republic of South Africa guarantees everyone a right to fair labour

practices.3_{This right is further qualified by the Labour Relations Act}4_{in section 185.}

The Labour Relations Act also has in it Schedule 8 which is a Code of Good Practice:

Dismissal. The Code endorses the concept of corrective or progressive discipline5

and the need to give due consideration to certain circumstances before dismissing an

employee.6_{The consideration of the circumstances listed by the Constitutional Court}

in Sidumo v Rustenburg Platinum Mines7_{and the provisions of items 3(2) and 3(6)}

cannot be said to be well catered for under section 17 of the Employment of Educators’ Act because of the use of the term “must”.

1 _{76 of 1998.} 2 _{[2007] 12 BLLR 1097 (CC).} 3 _{S 23.} 4 _{66 of 1995.} 5 _{Item 3(2).} 6 _{Item 3(5).} 7 _{Fn 2.}

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For the principle of fair labour practices to be fully accommodated under section 17 of the Employment of Educators’ Act a need to amend it is necessary. This treatise will introduce amendments that will provide for pre-dismissal arbitration as a possible approach to ensuring full compliance for fairness in dismissals that are as a result of transgressing any of the misconduct cases listed in section 17. Other amendments suggested are aimed at realigning section 17 to other child specific legislation like the

Children’s Amendment Act8_{and the Sexual Offences and Related Matters}

Amendment Act.9

8 _{41 of 2007.} 9 _{32 of 2007.}

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CHAPTER 1 INTRODUCTION

The subject of discussion in this study will focus on the fairness or otherwise of

section 17 of the Employment of Educators Act10_{as amended. Dismissal in any}

employment relationship has to be fair if it is to comply with the Constitution11_{and the}

Labour Relations Act.12_{It becomes imperative to record that the Department of}

Education as the employer has two categories of employees. These are educators

employed in terms of the Employment of Educators Act13_{and non-teaching staff}

employed in terms of the Public Service Act.14_{The Employment of Educators Act}

contains in it the conditions of employment of educators and the basis for their employment. More importantly, Schedule 2 as contained in the Employment of Educators Act is the Disciplinary Code and Procedure applicable to educators. Sections 17 and 18 provide for all cases that constitute misconduct. Misconduct cases listed in section 17 are termed serious whilst those in section 18 are just captured as misconduct. Section 17 reads as follows:

“Serious misconduct

(1) An educator must be dismissed if he or she is found guilty of –

(a) theft, bribery, fraud or an act of corruption in regard to examination or promotional reports;

(b) committing an act of sexual assault on a learner, student or other employee;

(c) having a sexual relationship with a learner of the school where he or she is employed;

(d) seriously assaulting, with the intention to cause grievous bodily harm to, a learner, student or other employee;

(e) illegal possession of an intoxicating, illegal or stupefying substance; or

(f) causing a learner or student to perform any of the acts contemplated in paragraphs (a) to (e).”

10 _{76 of 1998.}

11 _{Constitution of the Republic of South Africa, 1996.} 12 _{66 of 1995.}

13 _{76 of 1998.} 14 _{103 of 1994.}

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Under the circumstances, this section as it is worded, does not give any discretion to the presiding officer in applying a sanction other than dismissal as an appropriate sanction. This is an issue that has been a nightmare for the employers, employees, unions and arbitrators. It is unique to educators and its uniqueness resides on its upfront assertion that a guilty educator on one or more of the grounds listed in

section 17 must be dismissed. The question to ask is what about the consideration

of certain relevant circumstances that may be used to mitigate the appropriate sanction? Whether section 17 as it is does give enough consideration to item 3(5) of schedule 8 of the Labour Relations Act remains a question that this study will have to ask and seek to provide answers to.

This state of affairs raises some legal questions as to the constitutionality of these provisions and whether they fulfil the constitutional imperatives to promote

everyone’s right to fair labour practices15_{and just administrative actions.}16_{The study}

will thus examine the legality, fairness and validity of section 17 of the Employment of Educators Act with specific reference to the Constitution of the Republic of South

Africa and other pieces of legislation namely, the Labour Relations Act17_(hereinafter

referred to as the LRA) and the Promotion of Administrative Justice Act18_(hereinafter

referred to as PAJA).

It is very important to examine whether the provision that an educator must be dismissed if found guilty of those offences in section 17 of the Employment of Educators Act does not restrict or consciously or unconsciously compel chairpersons of disciplinary hearings and for that matter arbitrators to compromise some of the important considerations provided for in Schedule 8 of the Labour Relations Act before arriving at an appropriate sanction. It should also be mentioned that section 188(2) of the LRA refers any person considering whether or not the reason for dismissal is a fair reason or whether or not the dismissal was effected in accordance with a fair procedure must take into account any relevant Code of Good Practice issued in terms of Schedule 8 of the Labour Relations Act. Besides section 188(2)

15 _{S 22 of the Constitution.} 16 _{S 33 of the Constitution.} 17 _{66 of 1995.}

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above the Act further confers on all employees the right not to be unfairly

dismissed.19

It is also necessary to consider recent developments in our law as regards to employment contracts - a number of recent decisions of our courts have dealt with the interactions between the employment contracts, labour legislation and importantly, the effect of fundamental rights protected in Chapter II of the Constitution. It is clear from these cases that the employment contract remains an important source of duties and legal remedies in our law.

Against this background, fundamental to any contract of employment is the obligation that rests on an employee not to conduct himself or herself in a manner that will warrant a disciplinary action. Under the common law, if an employee was to do so, the employer would be entitled to dismiss the employee on notice. Before the enactment of the Labour Relations Act 28 of 1956, labour relations in South Africa were regulated in terms of common law of contract. At that time the common law permitted the parties to a contract of employment like parties to any contract of a continuous nature, to terminate the contract on terms provided for in the contract - that is if not by mutual agreement by giving the other party due notice or accepting

the other party’s repudiation.20_{However, in modern law an employer would not be}

entitled to dismiss an employee for minor misconduct which caused little or no

prejudice to the employer. The current Labour Relations Act21_{defines dismissal in}

section 186 as follows:

“Dismissal’ means that

-(a) An employer has terminated a contract of employment with or without notice;

(b) An employer reasonable expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it;

(c) An employer refused to allow an employee to resume work after she took maternity leave in terms of any law, collective agreement or her contract of employment;

19 _{S 185(a) of the Labour Relations Act 66 of 1995.} 20 _Grogan_Dismissal_{(2010) 2.}

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(d) An employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another; or

(e) An employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee;

(f) An employee terminated a contract of employment with or without notice because the new employer after a transfer in terms of section 197 or section 197A provided the employee with conditions or circumstances at work that are substantially less favourable to the employee than those provided by the old employer.”

Dismissals in any employment relationship have to be in line with the Constitution

and applicable labour legislation including collective agreements.

The treatise will largely be based on an analysis of the current labour relations legal framework and case laws. Some arbitration awards from the Education Labour Relations Council (herein referred to as the “ELRC”) whose main thrust is based on dismissals as a result of the application of section 17 of the Employment of Educators Act as amended would be used to explain the reason why it is necessary

to review the constitutional challenge that may be lodged against it. In Sidumo v

Platinum Mines22_{the Constitutional Court held that commissioners in approaching}

the dismissal dispute impartially must take into account the totality of circumstances for example the importance of the rule breached, reasons for dismissal, the basis on which the employee challenges dismissal, the harm caused by the employee, the effects of dismissal to the employee and his record of service. This is not an exhaustive list but just a demonstration that beyond gravity of any dismissal verdict there are other considerations which in their nature are meant to mitigate for a lesser

or alternative sanction to dismissal. The audi alteram partem-maxim which

expresses a principle of natural justice meant that when a statute empowers a public official or body to give a decision prejudicially affecting an individual in his liberty or property or existing rights the latter has a right to be heard before the decision is

taken.23

Chapter 2 of this study contains an overview of the contract of employment more specifically the following:

22 _{[2007] 12 BLLR (CC) 78.} 23 _Grogan_Dismissal_3.

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(a) The general principles of the contract of employment;

(b) the definition and the elements of the contract of employment; (c) the contractual duties of parties to an employment contract. (d) the termination of the contract of employment due to misconduct.

An overview of Convention 158 of the International Labour Organisation will be given with a view to bring an international context on the fairness principle in terminating a contract of employment.

Chapter 3 will analyse and give an overview of the legislative framework in conducting disciplinary hearing in the public education sector. It is important to note

that the Labour Relations Act24_{was a major shift from its predecessors in that it}

covered all employees except for members of the National Defence Force, National Intelligence Agency, the South African National Academy of Intelligence and

Comsec.25_{This means therefore that unlike before educators have in all respects be}

treated in line with the provisions of the Labour Relations Act and other relevant pieces of legislation applicable to them as employees of the state. Relevant provisions of the Constitution in particular sections 23 and 33 will be looked at in the context of the Constitution being the supreme law of the Republic of South Africa.

Schedule 8 of the Labour Relations Act26_{will be analysed in as far as it provides a}

leading guide in dealing with fairness in misconduct cases. The provisions of The

Employment of Educators Act27_{on misconduct and in particular its Schedule 2 which}

is termed the Disciplinary Code and Procedures for Educators will be looked at. The last piece of legislation to be overviewed will be the South African Council of Educators Act. Case law that has been developed in recent years dealing with fairness on dismissal will be a subject of the discussion.

Chapter 4 will specifically look at fairness in the procedural and substantive parts on the termination of employment contracts. Substantive fairness relates to the reason

24 _{66 of 1995.}

25 _{S 2 of the Labour Relations Act 66 of 1995.} 26 _{66 of 1995.}

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for the dismissal and the appropriateness of the sanction whilst procedural fairness relates to the manner in which the employer arrived at the decision to impose the

sanction.28_{The study will seek to lift those areas of the disciplinary code and section}

17 that seem to stand in contrast to the current South African labour law legislative framework as is summarised in Chapter 3 above. The subject will be critically analysed with specific reference to case law and some arbitration awards of the Education Labour Relations Council which deal with dismissal cases in particular those based on misconduct cases listed in section 17 of the Employment of

Educators Act.29

The study will be concluded in Chapter 5 with recommendations. The first recommendation to be made would be to amend section 17 as it stands so that it does away with the prescriptive approach to serious cases of misconduct if it is to avoid a constitutional challenge. The second recommendation would be a proposal for the introduction of a pre-dismissal arbitration procedure to be included in the disciplinary code and procedures for educators. The pre-dismissal arbitration will be

looked at in terms of the provisions of the Labour Relations Act30_{and the Council for}

Conciliation, Mediation and Arbitration (herein referred to as CCMA) guidelines. The pre-dismissal arbitration is done in place of a normal disciplinary enquiry by agreement between the employer and the employee. It shortens the process in that instead of going to arbitration only after having been dissatisfied with the internal disciplinary enquiry outcomes it becomes an acceptable legal option to follow if so provided for in a disciplinary procedure. Its outcomes are expressed as awards just like any other arbitration process and are subject to reviews in the Labour Court in terms of the Labour Relations Act provisions.

28 _Grogan_Dismissal_214. 29 _{76 of 1998.}

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CHAPTER 2 AN OVERVIEW OF THE CONTRACT OF EMPLOYMENT

2 1 INTRODUCTION

This chapter is meant to give an overview of the contract of employment within the current labour law framework. The intention is to give the context in which employment relations take place including the termination of such relations.

The development of the South African system of labour relations is always linked to the political, social and economic conditions that are prevalent in an ever changing

environment locally and globally. The discovery of diamond and gold in the 19th

century by the colonisers of South Africa forms the basis of the current labour relations and laws. Prior to this discovery, employment relations in South Africa were governed by the Master and Servant Act of 1841, which was primarily aimed at

setting down rules for black employees.31_{The rapid development of the mining}

industry together with the need for more skilled workforce brought about dynamic challenges in employment relations. These changes in employment relations were influenced by racial prejudice on the one hand and the general system of social relations from the broader society on the other hand. Black workers were treated as a form of cheap labour whilst their white counterparts were treated somewhat better especially, when it came to wage rate and other conditions of service. The best testimony to this was the 1922 Rand Revolt strike by more than 25000 white mineworkers. The white workers observed that the employers were gradually introducing mechanisation methods of production which reduced the need for more labour intensive work in some instances and this affected them more. The mine owners preferred employing more black cheap labour than the more expensive white

employees.32_{This was so because most of the work that was only performed by}

white workers could also be performed by unskilled and semiskilled black workers.

31 _{Vettori “A Judicially Enforceable Duty to Bargain” 2005 2}_{De Jure}_{382 383.} 32 _Ibid.

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This move was not well accepted by the White employees especially when they learnt that ten percent of them were to be retrenched.

The impact of the 1922 strikes and other forms of resistances in the workplaces brought about a new chapter in the system of labour relations in South Africa through

the enactment of the Industrial Conciliation Act.33_{The Industrial Conciliation Act}

provided for the establishment of industrial councils.34_{This Act further perpetuated a}

racially discriminatory system of labour relations by excluding black workers from

institutionalised bargaining.35_{Section 24 of the Industrial Conciliation Act}36_defined

an employee as excluding a person whose contract of service or labour was

regulated by any black pass laws and regulations or by Black Labour Relations Act37

or by any regulations or amendments of the latter.38_{This formalised racial approach}

to labour relations which was a replica of broader socio-economic relations in society did not deter black workers from organising themselves into unrecognised unions and engage in protest actions based on the need for better wages and better

conditions of employment.39_{This was the trend throughout the 19}th_{and 20}th_century.

The most reform that gave recognition to black unions and laid a firm foundation for a direction towards a non-segregation in the system of labour relations was the establishment of the Wiehahn Commission in 1979 with its report entertained some three to four years later. The major contribution of the Wiehahn Commission was the removal of the statutory exclusion of black workers from the Industrial Conciliation

Act.40_{Black workers were granted admission to industrial councils and conciliation}

boards and registered black unions were recognised.41_{The current contract of}

employment which takes into consideration both the individual and collective labour law should be viewed in the above context in South Africa.

33 _{11 of 1924.}

34 _{Basson, Christianson, Garbers, Le Roux, Mischke and Strydom}_{Essential Labour Law}₄th_ed

(2005) 5.

35 _Ibid. 36 _{11 of 1924.} 37 _{15 of 1911.}

38 _Nel_{South African Employment Relations: Theory and Practice}₄th_{ed (2002) 42.} 39 _Grogan_{Collective Labour Law}_{(2010) 4.}

40 _{94 of 1979 and 95 of 1980.} 41 _Grogan_{Collective Labour Law}_5.

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Notwithstanding the above exposition the contract of employment is traditionally considered to be a sub-species of the common law contract of lease, with its origins

in the Roman Law.42_{The Roman law distinguishes between three types of lease}

agreements viz locatio conductio rei or the rental of a thing; locatio conductio

operarum or the hiring of a service – the so called ordinary contract of employment

(service) and lastly the locatio conductio operis or the hiring of a piece of work.43

The discussion that is to follow will focus on the ordinary contract of employment as it applies to the current South African context. The current labour law legal framework is such that the contract of employment unlike in common law is not only determined by the wishes of the employer and the individual employee freely but must take into account the provisions of the current pieces of labour law like the Labour Relations Act 66 of 1995; the Basic Conditions of Employment Act 75 of 1997; the Employment Equity Act 55 of 1998 and the Republic of South Africa Constitution of 1996. These pieces of legislation make the contract of employment not a straight forward common law issue which is adjudicated only in terms of its contents. Statutory intrusion into the common law of employment was inspired by a general realisation that the common law had lagged behind conditions in modern commerce and industry and more recently by recognition of fundamental human rights and their entrenchment in

national constitutions.44

This chapter will look at the following important aspects of the contract of employment as informed by current pieces of legislation, collective agreements and international law:

(a) The general principles of the contract of employment. (b) The definition and elements of the contract of employment. (c) The contractual duties of parties to the contract of employment (d) The termination of the contract of employment due to misconduct.

42 _{Du Plessis and Fouché}_{A Practical Guide to Labour Law}₇th_{ed (2012) 9.} 43 _Ibid.

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The discussion will conclude with an overview of the Termination of Employment Convention 158 of 1982 of the International Labour Organisation.

2 2 GENERAL PRINCIPLES OF THE CONTRACT OF EMPLOYMENT

The contract of employment is the foundation of the relationship between an

employee and his or her employer.45_{The contract of employment links the employer}

and the employee in an employment relationship – irrespective of the form that

employment relationship takes.46_{The existence of an employment relationship is the}

starting point for the application of all labour rules – if there is no employment

relationship between the parties, the rules of labour law do not apply to that

relationship.47_{Once the two contracting parties have agreed on the core elements of}

the employment contract which is an agreement that the employee will place his or her labour at the disposal and under the control of the employer in exchange for

some remuneration, the employment relationship will be created.48

The relationship in an employment relationship is unequal. The employers wield more economic power because the means of production are under their control whilst on the other hand employees have only their labour power which they would put at the disposal of the employer for a price which is determined on terms mostly meant

to serve the interest of the employer.49_{The form of status created by the contract of}

employment is not expressly put in it but one can make a clear deduction that the employee’s social and economic wellbeing is mostly dependent on it through the continued improvement of the conditions of employment by the employer. The bargaining process and all that goes with it creates a platform for employees to contribute in an institutionalised environment towards the improvement of their

conditions of service. According to Grogan50_{a valid contract must meet the following}

requirements:

45 _{Basson, Christianson, Dekker, Garbers, le Roux, Mischke and Strydom}_{Essential Labour Law}

5th_{ed (2009) 21.}

46 _Ibid_.

47 _Ibid.

48 _{MEC for the Department of Health Eastern Cape v Odendaal}_{[2009] 5 BLLR 489 (LC).} 49 _Basson_{et al}_{Essential Labour Law}₅th_{ed (2009) 21.}

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 Consensus must have been reached by the parties at the time of contracting and both must have had serious intention to create mutual rights and duties to which they would be legally bound and each must be aware that the other had this intention.

 Each party must have the capacity to conclude the contract and must also be

legally capable of performing the act which gives rise to the formation of the contract.

 Each party must be legally competent to perform the rights and duties assumed

and it must be physically possible for them to assume their obligations.

 The rights created and duties assumed must be permitted by law.

 If formalities are prescribed for the formation of the contract they must be

observed.

2 3 DEFINITIONS AND ELEMENTS OF A CONTRACT OF EMPLOYMENT

2 3 1 DEFINITION OF THE EMPLOYMENT CONTRACT

A contract of employment is an agreement between two parties in terms of which one of the parties (the employee) undertakes to place his or her personal services at the disposal of the other party (employer) for an indefinite period or determined period in return for a fixed or ascertainable remuneration and which entitles the employer to define the employee’s duties and to control the manner in which the employee

discharges them.51

2 3 2 ELEMENTS OF THE EMPLOYMENT CONTRACT EXPLAINED 2 3 2 1 AGREEMENT

The definition entails in it an agreement which is entered into freely and voluntary. The essence of this is that parties to the contract are not forced to conclude an employment contract, they do so willingly. The law in South Africa prohibits forced

labour.52

51 _Grogan_{Workplace Law}_29.

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The existence of an employment relationship does not in all cases guarantee employees all remedies provided for in South African labour law. A case in point

here is Kylie v Commission, for Conciliation, Mediation and Arbitration53_{wherein the}

court ruled that Kylie, a prostitute who complained of unfair dismissal was indeed an

employee as per section 213 of the the Labour Relation Act.54_{She is not legally}

entitled to remedies contained in the Act. The Labour Appeal Court55_{also agreed}

that Kylie is an employee in terms of section 213 of the Labour Relations Act and her dismissal was unfair in terms of section 185 of that Act.and therefore is entitled to

legal protection. The court however held that Kylie cannot benefit from the remedies

like reinstatement; re-employment and or compensation which are normally afforded

to unfairly dismissed employees.56_{Prostitution in South Africa is prohibited and}

therefore courts cannot afford to be seen as acting against existing laws by issuing sanctions that would defeat the same purposes of such laws. The law that prohibits prostitution in South Africa is constitutional. However in this case there was an

employment relationship agreement albeit for wrong reasons.

2 3 2 2 FORMALITIES

A contract of employment does not have to be reduced to writing for it to be valid as sometimes it may be verbal. This general view does not imply that the conditions as

set out in the Basic Conditions of Employment Act57_{should not be observed as per}

its provisions. A contract of employment is concluded when the parties reach an agreement on the nature of duties to be performed and the remuneration to be paid. Nowadays due to technological advancement contracts of employment can be concluded and agreed to by short message services (sms). This was the case in

Jafta v Ezemvelo KZN Life58_{where an offer received and accepted through a short}

messages service (sms) was declared a concluded employment agreement.

53 _{(2008) 29}_ILJ_{1918 (LC).} 54 _{66 of 1995.}

55 _{Kylie v CCMA}_{[2010] 7 BLLR 705.}

56 _{Kylie v CCMA}_{[2010] 7 BLLR 705 (LAC) 52 53.} 57 _{S 29 of Act 75 of 1997.}

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2 3 2 3 COMMENCEMENT

A contract of employment comes into effect at the time parties to it reach an agreement on its essential terms such as remuneration and other key conditions of

employment.59_{An offer must have been made and accepted by the other party. In}

some contracts an agreement may be reached that an employee shall start working in a future date that shall have been agreed to by the parties at the time of the agreement. The Labour Appeal Court held that a contract of employment was

concluded when the employer reneged before the commencement date.60_In_Wyeth

SA (Pty) Ltd v Manqele61_{the employee by the name of Mr Manqele accepted an offer}

of employment whereby he was to commence work at a future date but before the commencement date the employer advised him that it is no longer prepared to employ him. This was ruled as unfair dismissal by the Labour Appeal Court. On the other hand a party that commences employment without an agreement that includes essential terms may not claim that an employment contract exists.

2 3 2 4 CONTENTS

Section 29 of the Basic Conditions of Employment Act62_{obliges an employer to}

supply in writing to the employee the following particulars upon commencement of employment:

 the full name and address of the employer;

 the name and occupation of the employee, or a brief description of the work for

which the employee is employed;

 the place of work and where the employee is required or permitted to work at

various places an indication of this;

 the date on which the employment began;

 the employee’s ordinary hours of work and days of work;

 the employee’s wage or the rate and method of calculating wages;

59 _Grogan_{Workplace Law}₁₀th_{ed (2009) 31.}

60 _{Wyeth SA (Pty) Ltd v Manqele}_{(JA 50/03) [2005] ZALAC 1.} 61 _{(JA 50/03) [2005] ZALAC 1.}

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 the rate of pay for overtime work;

 any other cash payment that the employee is entitled to;

 any payment in kind that the employee is entitled to and the value of the

payment in kind;

 how frequently remuneration will be paid;

 an deductions to be made from the employee’s remuneration

 the leave to which the employee is entitled;

 the period of notice required to terminate employment, or if employment is for a

specified period, the date when employment is to terminate;

 a description of any council or sectorial determination which covers the

employer’s business;

 any period of employment with a previous employer that counts towards the

employee’s period of employment and

 a list of any other documents that form part of the contract of employment,

indicating a place that is reasonably accessible to the employee where a copy of each may be obtained.

Any changes to the above have to be in writing. It is important to note that the above provision by the Basic Conditions of Employment Act does not constitute a contract of employment but rather information that the employer must hand over in writing to the employee. This section does not force an employer and employee to sign a

written contract.63

2 3 2 5 TACIT AND IMPLIED TERMS

The Supreme Court of Appeal viewed an implied term as a term that is introduced into a contract as a matter of course by operation of law either in common law trade or custom or statute as an invariable feature of such a contract subject only to the

parties’ entitlement in certain but not all instances to vary it by agreement.64_Where

reliance is placed on such a term the intention of the parties will not come into picture and the issue is purely one of whether in those circumstances in relation to a contract

63 _Basson_{et al}_{Essential Labour Law}_42.

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of that particular type the law impose such a term on the parties as part of their

contract.65_{It is therefore of crucial importance that when parties conclude an}

employment contract due regard to the labour laws and the Constitution of the country is understood as forming an integral part of that contract wherever possible depending on contextual factors in that employment relationship. For instance in

terms of section 25 of the Basic Conditions of Employment Act66_{all female}

employees are entitled to four months maternity leave but whether such leave is paid for is a matter for sectoral determination and in some cases collective agreements signed.

Tacit terms are implied into an employment contract from facts. The issue here is whether objectively if certain facts were considered at the time of the conclusion of the contract parties would not have agreed to such objective facts as being part of the contract. They are assumed to have been agreed to and have been incorporated into the contract had parties raised them at the time of concluding the contract.

The essence of raising tacit and implied terms as important considerations in a contract of employment is because unlike in common law, contract of employments are operating in an environment that is characterised by collective bargaining and social legislation based on the constitutional foundations of the country.

2 4 THE CONTRACTUAL DUTIES OF PARTIES TO AN EMPLOYMENT CONTRACT

It is important at this stage that even before further discussions are entertained on the contractual duties of employees and employers to a contract of employment an explanation of what an employee is, is given. Section 213 of the Labour Relations

Act67_{defines an employee as:}

“(a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration, and

(b) any other person who in any manner assists in carrying on or conducting the business of an employer.”

65 _Ibid.

66 _{75 of 1997.} 67 _{66 of 1995.}

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In determining whether a person is an employee or an independent contractor a person must be guided by section 83A of the Basic Conditions of Employment Act; the dominant impression test that has been developed by the courts; the definition as contained in section 213 of the Labour Relations Act and the Code of Good Practice:

Who is an Employee.

2 4 1 CONTRACTUAL DUTIES OF THE EMPLOYER 2 4 1 1 TO ACCEPT THE EMPLOYEE INTO HIS SERVICE

The employee and the employer are bound together by a commitment wherein the employee shall render a service to the employer at a remuneration. The employer therefore has a duty to welcome and accept the employee into his service.

2 4 1 2 TO PROVIDE THE EMPLOYEE WITH WORK

Generally speaking the employer has no duty to provide the employee with tasks to

perform if the employee tenders his or her services.68_{The employer does not}

commit breach of contract if he fails to provide work, provided that he pays the

employee the agreed remuneration.69_{There are however certain instances where}

the employer is obliged to provide work to an employee. According to Du Plessis

and Fouché70_{the following are some of the known instances:}

 where the amount of the remuneration is based on the amount of work done as

in the case of someone doing piece work or a salesman;

 where the failure to provide work brings about a reduction in the status of the

employee;

 where the employer has undertaken to train the employee in a certain

profession or trade; and

 where a person’s training capacity is linked to the publicity which he receives

from the work he does, for example an actor.

69 _{Du Plessis and Fouché}_{A Practical Guide To Labour Law}_17. 70 _Ibid.

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2 4 1 3 TO PAY THE REMUNERATION AGREED UPON

The employer has a primary duty to pay remuneration for services rendered. This is one of the essential aspects of any contract of employment which must be included in it. If the agreement between the parties does not make provision for the payment of remuneration and there is no method of calculating a wage, a court may hold that there is no contract of employment or alternatively the court may hold that the

employer has a duty to pay a reasonable wage.71

2 4 1 4 TO PAY QUANTUM MERUIT

In some instances an employee may abscond before completing his work. If this happens the employee is not entitled to any remuneration except where it is the

employer who repudiated the contract. The quantum meruit is reasonable

remuneration for services rendered.72_{The quantum meruit}_{is payable in instances}

where the employee or contractor was bona fide in not completing the work.73_In

simple terms a quantum meruit is payable where the reason for the abandonment of

the job is not as a result of the employee’s or contractor’s making.

2 4 1 5 TO PROVIDE SAFE WORKING CONDITIONS

Employers have a responsibility to ensure that the workplace in which employees work is safe and also conforms to basic health standards. Safety in this context refers not only to the physical buildings but also to the equipment and machinery,

properly trained and competent staff and a safe system of working.74_The

Occupational Health and Safety Act 85 of 1993 was promulgated to provide for the health and safety of persons at work and for the health and safety of persons in connection with the use of plant and machinery. This is a conscious effort by the State in line with the international law to ensure for the protection of workers against

72 _{Du Plessis and Fouché}_{A Practical Guide To Labour Law}_18. 73 _Ibid.

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unsafe and hazardous conditions that they may be exposed to in their work environments. Every employer shall provide and maintain as far as reasonably practicable a working environment that is safe and without risk to the health of his

employees.75_{Failure by the employer to provide for these safety and health}

conditions may result in that employer being held responsible for committing an

offence and being liable to a fine and or imprisonment.76_{It must also be noted that}

where an employee has knowledge of the hazards to his health and safety attached to any work which he has to perform yet subjects himself voluntarily to this hazard

and it leads to injury or death the employer cannot be held liable.77_{Employees have}

a responsibility to carry out any lawful orders given to them and obey the health and

safety rules and procedures laid down by their employers at the workplace.78

2 4 1 6 TO COMPLY WITH STATUTORY DUTIES

In Murray v Minister of Defence79_{the court held that the common law of employment}

must be held to impose on all employers a duty of fair dealing at all times with their employees including those the LRA does not cover. Employers are also obliged to to

discharge duties imposed by applicable legislation.80_{The Constitution remains the}

supreme law from which all laws have as their genesis hence the right to fair labour practices applies to all employees.

2 4 2 THE CONTRACTUAL DUTIES OF THE EMPLOYEE

2 4 2 1 TO MAKE HIS SERVICES AVAILABLE

The employee has an obligation to make his services available to the employer if an employment relationship is to exist and sustained. The essence of this is that for an employee to be remunerated an employee must have rendered a service. In the absence of a service rendered there cannot be an expectation for remuneration. This does not apply to situations where certain conditions of service such as

75 _{S 8(1) of the Occupational Health and Safety Act 85 of 1993.} 76 _{S 38(2) of the Occupational Health and Safety Act 85 of 1993.} 77 _{S 38(1)}_supra_.

78 _{S 14}_supra_.

79 _{[2008] 6 BLLR 513 (SCA) 6.} 80 _Grogan_{Workplace Law}_57.

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authorised and paid leave applies like paid sick or maternity leave. Collective agreements, sectorial determinations and the Basic Conditions of Employment Act are some of the most important documents that are used to regulate most working conditions.

2 4 2 2 TO WARRANT HIS COMPETENCE AND REASONABLE EFFICIENCY

Employees are expected to do the work that they are employed for according to the expected levels, diligently and efficiently. The standard of competence which the employer is entitled to expect will depend on factors such as the capacity in which the employee is engaged, his level of skills and training and any promises made by

the employee concerning his skills and abilities.81 _{An employee’s contract of}

employment may be terminated due to the employee’s conduct or incapacity as long

as the necessary applicable facts and legal procedures are established and

observed.82_{Failure to establish and observe such applicable procedures may lead to}

unfair dismissals.83

2 4 2 3 TO OBEY LAWFUL AND REASONABLE INSTRUCTIONS OF THE EMPLOYER

Employers are in positions of control and authority over their employees in the employment relationship and therefore employees are expected to obey that

authority and control as long as it is lawful.84_{The issue here is that employees have}

not to obey instructions that are unlawful and unreasonable.85_{Disobedience to lawful}

instructions may lead to disciplinary action being taken against the employee which

in some instances may result in harsher sanctions.86

81 _{Du Plessis and Fouché}_{A Practical Guide To Labour Law}_21. 82 _{S 188 of the Labour Relations Act 66 of 1995.}

83 _{Item 2(1) of Schedule 8 of the Labour Relations Act 66 of 1995.} 84 _{Du Plessis and Fouché}_{A Practical Guide to Labour Law}_21.

85 _{Maneche v Commission for Conciliation, Mediation and Arbitration}_{[2008] 1 BLLR 52 (LC).} 86 _Basson_{et al Essential Labour Law}_{(2009) 44.}

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2 4 2 4 TO SERVE THE EMPLOYER’S INTEREST AND ACT IN GOOD FAITH

The contract of employment implies that a relationship of trust and confidence has

been embraced by the both parties.87_{The assumption here is that an employee is at}

the workplace to serve the interest of the employer and such service should be done

in good faith.88_{An employee is expected not to disclose any confidential information}

about its employer. Some employers include in the contract of employment a restraint of trade clause in order to restrict former employees from using the business information to advance their own or other businesses’ interest. A clause in restraint of trade is the one that prevents an employee from exercising his or her trade, profession or calling, or engaging in the same business venture as the employer for a

specified period within a specified area after leaving employment.89_{The restraint of}

trade clause would generally form part of the original terms and conditions of the

employment agreement.90_{A restraint of trade agreement should be reasonable and}

not be contrary to public policy.91_{Dishonesty on the part of an employee may lead to}

dismissal as it is viewed as acting in bad faith. Employees are at all times expected to act in a manner that does not violate the set standards, rules or policies of the business.

2 4 2 5 TERMINATION OF THE CONTRACT OF EMPLOYMENT DUE TO MISCONDUCT

In chapter one of this treatise the Labour Relations Act92_{definition of dismissal was}

quoted. The important aspect to note in dismissal is that it is in actual fact an act of termination of employment contract in terms of our labour law. The important fact to establish is whether the relationship was that of an employer and employee and if so determine whether unfair dismissal took place or not and if yes the correct remedies

for unfair dismissal in terms of the provisions of the Labour Relations Act93_{should be}

invoked. The LRA provides for the principle of fairness in all instances that involve

87 _{Council for Scientific and Industrial Research v Fijen}_{[1996] 6 BLLR 696 (AD).} 88 _{Phillips v Fieldstone Africa}_{(Pty) Ltd}_{(2004) 25}_ILJ_SCA.

90 _{Landis and Grossett}_{Employment and the Law: A Practical Guide for the Workplace}_{(2003) 131.} 91 _{Magna Alloys and Research (SA) (Pty) Ltd v Ellis}_{1984 (4) SA 874 (A).}

92 _{66 of 1995,} 93 _{66 of 1995.}

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dismissals94_{and if such fairness cannot be established that dismissal fails}95_{and may}

result in reinstatement or compensation of the employee.96

Misconduct is as a result of a material breach of the term of a contract of employment. It may also be a transgression of set standards of behaviour which may be in a code of conduct or sometimes in common law. In dealing with

misconduct, item 7 of Schedule 8 of the Labour Relations Act97_{provides a guide on}

how to handle dismissal cases. In terms of item 798_{fairness in dismissal is assessed}

through a proper evaluation of answers to the following questions:

 Was there a contravention of a rule or standard?

 Was the rule valid and reasonable?

 Was the employee aware or could have been reasonable be expected to be

aware of the rule?

 Was the rule applied consistently?

 Is dismissal an appropriate sanction?

2 5 CONCLUSION

The contract of employment has evolved over time in line with the socio-economic developments locally and internationally. The contract of employment signifies the beginning of an employer-employee relationship whose regulation is subject to the Constitution of the Republic of South Africa; the labour laws of the country like the Labour Relations Act, the Basic Conditions of Employment Act and the Employment

Equity Act 55 of 1998 as well as International laws and Conventions. A contract of

employment may be in writing or oral and its terms may be express or tacit.99_An

employment contract is reached through consensus and no party may be forced into getting into an employment contract. When an employment contract is agreed to an

94 _{S 185(a).} 95 _{S 188.} 96 _{S 193(1).} 97 _{66 of 1995.}

98 _{Schedule 8 of the Labour Relations Act 66 of 1995.}

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employment relationship begins. Collective agreements also have a bearing on contracts of employment as they become part of the conditions of employment.

The International Labour Organisation through its various Conventions and Resolutions has also played a significant role in influencing the South African labour relations terrain. An overview of the International Labour Organisation’s Termination of Employment Convention 158 of 1982 may serve as a better illustration of how the international influence exerts itself in the local arena of labour relations. Article 4 of the Termination of Employment Convention 1982, (no 158) condemns termination of employment without a valid reason. Termination of employment could either be for misconduct; incapacity or operational requirements. The Convention goes further to list in Article 5 some instances where the reasons for a termination shall not be considered valid. These are:

 union membership or participation in union activities that are legitimate;

 being a union representative representing its members or holding office;

 filing of a complaint or participation in proceedings against an employer

involving alleged violation of laws or regulations or recourse to competent administration authorities;

 race, colour, marital status, pregnancy, religion, political opinion or national

origin; and

 absence from work during maternity leave.

Article 7 of the Convention provides that a worker shall not be terminated for reasons related to the worker’s conduct or performance before he is provided an opportunity to defend himself against the allegations made unless the employer cannot reasonably be expected to provide this opportunity. Dismissal in South African law

has to be fair for it to be legitimate.100_{In terms of Article 8 of the Convention}

mentions forums that an employee who feels hard done by the outcome of dismissal can go to for further adjudication. These forums are the courts, labour tribunals and arbitrations. The same Article 8 provides for the waiver of a right to appeal against

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termination if an employee fails to meet certain applicable time lines to appeal which may apply per industry or workplace per country.

Chapter 3 will be considering applicable legislation in determining dismissals in the public education sector. The termination of the contract of employment as it applies to educators will be the focus area.

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CHAPTER 3 AN OVERVIEW OF THE APPLICABLE DISMISSAL LAW IN THE

PUBLIC EDUCATION SECTOR

3 1 INTRODUCTION

This chapter presents an overview of the applicable legislative framework in determining dismissals in the public education sector. It is important to note that despite all the reforms in labour relations in South Africa prior to the current political

dispensation public servants were never part of the 1956 Labour Relations Act.101

This Act mainly covers workers in the private sector. During the early 1990s some labour relations laws covering some civil servants similar to the Labour Relations Act of 1956 were enacted. These included the Public Service Labour Relations Act 102 of 1993; Agricultural Labour Act 147 of 1993 and the Education Labour Relations Act 146 of 1993.

The Education Labour Relations Act102_{was applicable only to educational institutions}

in the public sector, with the result that employers and employees at private schools,

universities and technikons were excluded.103_{The Education Labour Relations Act}

dealt with issues relating to freedom of association, unfair labour practices, collective bargaining rights and defending employer and employee rights against unlawful actions. It is through this Act that the Education Labour Relations Council was established to regulate matters relating to negotiation and conclusion of collective agreements on matters of mutual interest and dispute resolutions mechanisms.

The current Labour Relations Act104_{establishes a bargaining council in the public}

service known as the Public Service Co-ordinating Council whose mandate is to perform functions that are listed in section 36(2). Section 37 of the Labour Relations Act establishes sector bargaining councils in the public service. It is in this context

101 _{28 of 1956.} 102 _{146 of 1993.}

103 _{Du Plessis, Fouché, Jordan and Van Wyk}_{A Practical Guide to Labour Law}_{(1996) 328.} 104 _{S 35(a) of 66 of 1995.}

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that the current Education Labour Relations Council should be understood. The Education Labour Relations Council in section 7 of its Constitution has the following objectives for the sector:

“(a) to maintain and promote labour peace in education;

(b) to prevent and resolve labour disputes in education and to perform dispute resolution functions in terms of section 51 of the Act;

(c) to promote collective bargaining in relation to all matters of mutual interest and to conclude and enforce Collective Agreements;

(d) to grant exemptions to parties and non-parties from Collective Agreements where appropriate;

(e) to conduct research, analysis and survey education nationally and internationally and to promote training and capacity building in education; (f) to develop proposals for submission to the PSCBC, the CCMA and

NEDLAC or any other appropriate forum on labour policy and labour legislation that may affect education;

(g) to confer on workplace matters for consultation;

(h) to consider and deal with any other matter that may affect the interest of the parties;

(i) to extend the services and functions of the council to other educational sectors.”

The Labour Relations Act 66 of 1995 gives effect to all labour-related matters contained in the Constitution of the Republic of South Africa in particular section 23

of the Constitution. The Labour Relations Act105_{unlike its predecessor of 1956 does}

not exclude public servants except for the National Defence Force and the State

Security Agency.106

The context in discussing dismissals of educators based on misconduct in the public education sector is therefore by all means linked to the relevant provisions of the Constitution of the Republic of South Africa, the Labour Relations Act, the Employment of Educators’ Act 76 of 1998, the South African Council of Educators’ Act 53 of 2000 and the Education Labour Relations Constitution.

3 2 THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, 1996

The Constitution is the supreme law of the country. The Labour Relations Act and all other labour laws are developed to give expression to some critical provisions of the Constitution that are relevant to employment relationships and human rights.

105 _{66 of 1995.} 106 _{S 2.}

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Chapter two of the Constitution contains a Bill of Rights which applies to all law, and

binds the legislature, the executive, the judiciary and all organs of state.107_Section

23 in the Bill of Rights provides for the right to fair labour practices and other rights relevant in labour relations’ environment.

Section 167(3) of the Constitution provides that the Constitutional Court:

“(a) is the highest court in all constitutional matters;

(b) may decide only constitutional matters, and issues connected with decisions on constitutional matters; and

(c) makes the final decision whether a matter is a constitutional matter or whether an issue is connected with a decision on a constitutional matter.”

The rights contained in the Bill of Rights may be limited in terms of section 36 which sets out conditions to be met in limiting any right. The field of labour law has by and large been shaped and developed by various decisions of the Constitutional Court.

Ngcobo J108_{held that:}

“When a proposed interpretation of the jurisdiction of the Labour Court and the High Court threatens to interfere with the clearly indicated policy of the LRA to set up specialised tribunals and forums to deal with labour and employment relations disputes such a construction ought not to be preferred. Rather the one that gives full effect to the policy and the objectives of the LRA must be preferred.”

The point that is being made here is that before exploring other avenues in resolving

labour disputes the Labour Relations Act109_{provisions should be the first to be}

explored. This is how section 157(2) should be approached. It is also a ground breaking judgment in preventing forum shopping by employers and employees in their quest to resolve disputes.

In Sidumo v Rustenburg Platinum Mines110_{the Constitutional Court held that CCMA}

commissioners need not defer to the employer’s decision to dismiss an employee. The court further held that commissioners have to decide on the appropriateness of a sanction independently without deferring to the employer’s decision to dismiss.

107 _{S 8(1) of the Constitution of the Republic of South Africa, 1996.} 108 _{Chirwa v Transnet Ltd}_{[2008] 2 BLLR 97 (CC) 112.}

109 _{66 of 1995.}

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Fairness in the eyes of the commissioner is what should prevail not through the eyes of the employer. It is also important to note the importance of attacking the constitutionality of a provision in legislation first before relying directly on the

Constitution.111_{A thorough examination of the application of section 17 of the}

Employment of Educators’ Act will have to contend with the above court positions. The constitutional aspects of section 17 of the Employment of Educators’ Act will be closely examined in chapter four of this study.

3 3 THE LABOUR RELATIONS ACT 66 OF 1995

The purpose of the Labour Relations Act is to advance economic development,

social justice, labour peace and the democratisation of the workplace.112_{It is}

important to note that the current Labour Relations Act was enacted before the final Constitution of the Republic of the country came into being. The fact that the Labour Relations Act was promulgated before the final Constitution is an indication of the

importance of the new labour legislation at that time.113_{The Act was mainly based}

on the principles of the Interim Constitution114_{to ensure that the new democratic}

dispensation covers aspects of the employment relations field adequately. It is therefore within the above context that the Act’s purpose is based on the principles of

social and economic justice. The primary objectives of the Labour Relations Act115

are to give meaning and life to the fundamental rights of workers and employers contained in the Constitution. The Act serves as a point of reference to other labour laws in as far as issues of employment relations are concerned. If any law except for the Constitution has a provision on labour matters and that provision contradicts with

those of the Labour Relations Act the Labour Relations Act provisions will prevail.116

The Labour Relations Act therefore provides a basic framework for all other specific

labour laws such as the Employment of Educators’ Act.117

The Labour Relations Act covers the following major issues in employment relations:

111 _{SANDU v Minister of Defence}_{[2007] 9 BLLR 785 (CC) 52.} 112 _{S 1 of Act 66 of 1995.}

113 _{Oosthuizen, Botha, Roos, Rossouw and Smit}_{Aspects of Education Law}_{(2009) 10.} 114 _1993.

115 _{66 of 1995.} 116 _{S 210}_supra. 117 _{76 of 1998.}

The application of section 17 of the Employment of Educators' Act