The Origin, Nature and Ambit of Employer Prerogative (Part 2)
| Jurisdiction | South Africa |
| Date | 25 May 2019 |
| Citation | (1999) 11 SA Merc LJ 311 |
| Published date | 25 May 2019 |
| Pages | 311-330 |
| Author | EML Strydom |
The Origin, Nature and Ambit of
Employer Prerogative (Part 2)*
EML STRYDOM**
Chamber of Mines
8 The Influence of the Common Law on Terms and Conditions of
Employment
The common law favours the employer. Based on its principle of
freedom of contract,
1
the employer can decide whom to employ. In terms
of this principle, therefore, an employer may base its decision to employ
or not to employ somebody on factors which may generally be regarded
as improper or discriminatory.
Because of its stronger bargaining power, the employer can stipulate
certain preconditions to the conclusion of a contract of employment, such
as that the person seeking employment terminates his or her trade-union
membership or undergoes a medical examination. The employer may
furthermore require the person to take a literacy test or a test to
determine whether the person has the necessary skills to do the work.
2
The common-law principle of freedom of contract operates on the
premiss that the employer and the employee are on an equal footing when
negotiating the terms and conditions of employment.
3
In practice,
however, this is seldom
4
the case. The employer commands capital,
* This article is a shortened version of ch 1 of Elizabeth Maria Louise Strydom
Employer
Prerogative from a Labour Law Perspective
(unpublished LLD thesis, University of South Africa
(1997)). For part 1, see (1999) 11
SA Merc LJ
40.
** BA LLB (Pret) LLM LLD (Unisa). Industrial Relations Manager, Chamber of Mines of
South Africa.
For a discussion of this principle, see RH Christie
The Law of Contract in South Africa
3 ed
(1996) at 14-15; Alan Rycroft & Barney Jordaan
A Guide to South African Labour Law
2 ed
(1992) at 33; AJ Kerr
The Principles of the Law of Contract
4 ed (1989) at 8 and 107; GTS Eiselen
'Kontrakteervryheid, Kontraktuele Geregtigheid en die Ekonomiese Liberalisme' (1989) 52
Tydskrif vir die Hedendaagse Romeins-Hollandse Reg
516 at 518; MSM Brassey, E Cameron, MH
Cheadle & MP Olivier
The New Labour Law: Strikes, Dismissals and the Unfair Labour Practice in
South African Law
(1987) at 160-161; Nicholas Haysom & Clive Thompson 'Labouring under the
Law: South Africa's Farmworkers' (1986)
7 Industrial LI
218 at 221-222; Steven D Anderman
The Law of Unfair Dismissal
2 ed (1985) at 3; David M Beatty 'Labour is not a Commodity' in:
Barry J Reiter & John Swan (eds)
Studies in Contract Law
(1980) at 340-341; PS Atiyah
The Rise
and Fall of Freedom of Contract
(1979) at 403, 406 and 417; and JSA Fourie 'Status en Kontrak in
die Suid-Afrikaanse Arbeidsreg' (1979) 42
Tydskrif vir die Hedendaagse Romeins-Hollandse Reg
79
at 84.
The person seeking employment will be bound by any representations he or she makes
regarding his or her competence. The applicant may also be bound by representations made in
testimonials and references. See John Grogan
Riekert's Basic Employment Law
2 ed (1993) at 37 as
well as
Ndamase v Fyfe-King NO
1939 EDL 259 at 262.
3
Beatty op cit note 1 at 334 points out that in terms of the principle of freedom of contract '[i]n
its pristine form, even children were said to have an equal opportunity to utilize the institution to
develop their skills and make their contributions'.
Where a job is of a very specialised nature and demands a highly qualified person, the
applicant for employment may be in a much stronger bargaining position: see Richard Hyman
Industrial Relations: A Marxist Introduction
(1975) at 23 as well as Brassey, Cameron, Cheadle &
Olivier op cit note 1 at 5-6.
311
(1999) 11 SA Merc LJ 311
© Juta and Company (Pty) Ltd
312
(1999) 11 SA Mere LJ
information and access to legal advice,
5
whereas an employee works in
order that he or she may survive.
6
The employer's stronger bargaining
power enables it virtually to dictate the terms and conditions of the
contract of employment.'
Through the subordination element
8
of the contract of employment, the
employer acquires the right to give instructions to the employee.
9
And,
through residual
10
terms such as the duty to be respectful," to work in a
competent manner,
12
and to act in good faith,
13
this right of the employer is
strengthened. In addition, the fact that these residual terms are phrased in
such broad terms, further enhances the employer's prerogative as it allows
the employer to give a broad interpretation to these duties.
However, the right to dismiss by giving the required notice
14
undoubtedly represents the common law's most important contribution
5
See Christie op cit note 1 at 14-15; Kerr op cit note 1 at 6-8; and Hugh Collins 'Market
Power, Bureaucratic Power, and the Contract of Employment' (1986) 15
Industrial LJ (UK) 1.
6
See Paul Pretorius 'Status Quo Relief and the Industrial Court: The Sacred Cow Tethered'
(1983) 4
Industrial LJ
167 at 170.
7
See HA Jordaan
The Employment Relationship: Contract or Membership?
(unpublished LLD
thesis, University of Cape Town (1991)) at 50 as well as at 60-62 and the authorities referred to
there. See also Beatty op cit note 1 at 334; and Hyman op cit note 4 at 23.
8
See SR van Jaarsveld & BPS van Eck
Kompendium van Suid-Afrikaanse Arbeidsreg
2 ed
(1996) at 33, 54 and 60-63; Rycroft & Jordaan op cit note 1 at 35 and 62-63; JC de Wet & AH
van Wyk
De Wet en Van Wyk: Die Suid-Afrikaanse Kontraktereg en Handelsreg Vol 1
5 ed (1992)
at 384; Martin Brassey 'The Nature of Employment' (1990) 11
Industrial LJ
889 at 902; Lord
Wedderburn
The Worker and the Law
3 ed (1986) at 5; Etienne Mureinik 'The Contract of Service:
An Easy Tests for Hard Cases' (1980) 97
SALJ246
at 263 and 266; GC Kachelhoffer 'Arbeidsreg:
Die Wiehahn- en die Riekert-Verslag' (1979) 1
Modern Business Law
83; and James Stephen
Andrew Fourie
Die Dienskontrak in die Suid-Afrikaanse Arbeidsreg
(unpublished LLD thesis,
University of South Africa (1977)) at 41. See also
Liberty Life Association of Africa Ltd v Niselow
(1996) 17 ILJ 673 (LAC) at 681J-682A and 682E—F;
Smit v Workmen's Compensation
Commissioner
1979 (1) 51 (A) at 60-61;
Ongevallekommissaris v Onderlinge Versekerings
genootskap AVBOB
1976 (4) SA 446 (A) at 456G—H; and
Colonial Mutual Life Assurance Society
Ltd v Macdonald
1931 AD 412 at 432-435.
9
See Mureinik op cite note 8 at 265; Fourie op cit note 8 at 44; and Van Jaarsveld & Van Eck
op cit note 8 at 62.
10
Residual terms are those provisions which the law adds to the contract in the absence of
agreement of the parties (see Kerr op cit note 1 at 257). These terms are also referred to as the
'naturalia' of the contract (see Kerr op cit note 1 at 256). Christie op cit note 1 at 177 describes
naturalia or residual terms as the terms implied by law in every contract of a particular type unless
expressly excluded.
11 See Rycroft & Jordaan op cit note 1 at 64; Van Jaarsveld & Van Eck op cit note 8 at 62 and
129-130; and C Norman-Scoble
The Law of Master and Servant in South Africa
(1956) at 148-149.
12
See Van Jaarsveld & Van Eck op cit note 8 at 126-127; Rycroft & Jordaan op cit note 1 at
58-59; and Norman-Scoble op cit note 11 at 141. See also
Wallace v Rand Daily Mail Ltd
1917
AD 479 at 482.
13
See
Council for Scientific & Industrial Research v Fijen
(1996) 17 ILJ 18 (A) at 26D—G and
Premier Medical & Industrial Equipment (Pty) Ltd v Winkler & another
867H. See further Rycroft & Jordaan op cit note 1 at 59-60. However, in view of the Appellate
Division's decision in
Council for Scientific & Industrial Research v Fijen
supra note 13 at 26D—F
that the residual term to act in good faith is reciprocal in nature, the employee's position vis-à-vis
the employer may be strengthened. The reciprocal nature of this duty entitles the employee to
question the employer's conduct and the scope of this duty allows the employee to give a broad
interpretation to it. See also
Angehrn & Piel v Federal Cold Storage Co Ltd
1908 TS 761 at 777-
778 and
Humphries & Jewell (Pty) Ltd v Federal Council of Retail & Allied Workers Union &
others
(1991) 12 ILJ 1032 (LAC) at 1037G.
14
It is considered to be a residual term of the contract of employment. See Grogan op cit note 2
at 52; Rycroft & Jordaan op cit note 1 at 86 and 88; PJ Pretorius & DJM Pitman 'Good Cause for
Dismissal: The Unprotected Employee and Unfair Dismissal' in: TW Bennett, DJ Devine, DB
Hutchison, I Leeman, CM Murray & D Van Zyl Smit (eds)
Labour Law
(1991) 133 at 138 and
Norman-Scoble op cit note 11 at 169.
© Juta and Company (Pty) Ltd
To continue reading
Request your trial