2020 volume 4 p 807

• Date: 14 October 2020
• Published date: 14 October 2020

THE CONTR ACT OF EMPLOYMENT IN TH E TIME OF THE CORONAVIRUS 807

[ISSN 0257 – 7747] TSAR 2020

. 4

THE CONTRACT OF EMPLOYMENT IN THE TIME OF THE

CORONAVIRUS

“[W]isdom comes to us when it can no longer do any good”

(Gabriel García Márquez Love in the Time of Cholera (1988) 22)

1 Introduction

The sudden and unprecedented worldwide spread of the coronavirus dise ase

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Africa, like many other countries, instituted a nat ional lockdown in March 2020

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negative impact on the economy and par ticularly on the general per formance of

obligations in employme nt contracts.

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future. On t he one hand, employees are expected to provide their serv ices, whilst on

the other hand, employers are expected to pay remunerat ion for services rendered.

In instances of a supe rvening force, like the Sout h African national lockdown

(the shutdown), the contractual mechan ism of supervening impossibility applies

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of performance. Employment contracts have been particularly impacted by

the shutdown and have left many unsure of how the shutdown may impact their

continued employment and the payment of remune ration. In this regard, one

should consider whether employment contracts could be terminated in instances

of a supervening impossibility, and if so, when? The issue of whether employers

are required to pay employees their remu neration for the duration of the shutdown

should also be considered (see Cohen “Termination of employment contracts by

operation of law - bypassing the unfai r dismissal provisions of the Labour Relations

2020 TSAR 807

© Juta and Company (Pty) Ltd

TSAR 2020 . 4 [ISSN 0257 – 7747]

808 VAN ECK AND VAN STADEN

Act” 20 06 Stell LR 91-104). In what follows, we will consider contractual and

labour-law mechanisms to address unforeseen circumstances and the impossibility

of perfor mance in em ployment contr acts. Note that this contr ibution only con siders

and incorporates the legal mechanisms that were applicable during level 5 of the

shutdown (for the period 26 March 2020 to 30 April 2020).

2 Contractual mechanisms

2.1 The reciprocal nature of the contract of employment

During the shutdow n, many workers found themselves without an income, except

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economy and atypical employees have been more vulnerable against the disease

and the economic consequences thereof, employees in traditional employment

relationships were also not guaranteed of an income. This is a consequence of the

nature of the common-law contract of employment. Grogan Work place Law (2017)

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“an agreement b etween two legal p ersonae (pa rties) in ter ms of which one of the par ties (the

employee) underta kes to place his or he r personal se rvices at the d isposal of the oth er party (the

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the employee discharges them”.

It is therefore an essential element of the contract of employment (locatio conductio

operarum) that the employee (locator operarum DJUHHV WR SHUIRU P FHUWDLQ VSHFL¿HG

and/or implied duties for the employer and that the employer (conductor operarum)

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however, be noted that although remuneration was an essential element in Roman

law (Smit v Workmen’s Compensation Commissioner 1979 1 SA 51 (A) 56E-G) and

our courts have generally accepted the sa me (R v Caplin 1931 OPD 17 2 17 3), some

have argued that it is not an essential element (see Murein ik “The contract of service:

an easy test for hard cases” 1980 SALJ 246 249 n 16; for cases of vicarious liability

see Riekert Basic Employment Law (1987) 8 and Scott Middellike Aanspreeklikheid

in die Suid-Afrikaanse Reg (1983) 86). However, in Coin Security (Cape) (Pty) Ltd

v Vukani Guards and Allied Workers’ Union the court held that “[a] contract of

employment is a contract with reciprocal rights and obligations. The employee is

under an obligation to work and the employer is under an obligation to pay for his

services” (1989 4 SA 234 (C) 239I).

As long as employees tender service, they are entitled to be paid their earnings

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of their contractual obligations, other tha n during per iods of sick or annual leave,

entitles the employer to withhold their earnings. In Wyeth SA (Pty) Ltd v Manqele

the labour appeal cour t held that:

“[a]t common law an employee in a contr act of employment commits a breach the reof [when] he

reneges on his dut y of placing his pe rsonal service at the disp osal of the employer. The employer

on the other hand breaches the contract of employment if he reneges on his undertaking to pay

the salary o r wages agreed in considerat ion for services rendered ” ((JA 50/03) 2005 ZALAC 1 (23

March 2005) par 13).

The reciprocal nature of the employment contract is also legislatively recognised.

Section 1 of the Basic Conditions of Employment Act 75 of 1997 and section

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