Word count: 647
The common law contract of employment would require that the two parties involved i.e. employer and employee conclude an agreement equitable to or at least meeting the needs of (locatio conductio operarum/employment proper). Considering the nature of the relationship between Mrs. James and the school, it is difficult to define who the employee and employer is, as the initial agreement for the services offered by Mrs. James was made between her and the parents. The school ultimately becomes responsible for paying her salary based on a request she made. No formal agreement is mentioned with regards to this arrangement for instance, is the school charging her an administration/handling fee or is she subjected to statutory deductions like UIF as the other teachers. Mrs. James was provided with the tools (i.e. two classrooms) to run her services by the school and they stipulated conditions of her using the schools facilities (provided she supplied the children with equipment etc). Thus it would seem as though a (location conduction operis ) or “provision of work” contract exists between the school and Mrs. James. This contract unfortunately does not provide her with job security or recourse when facing acts of negligence or wrong doing by the other party to the contract. The control test indicates that Mrs. James ran her own after care centre without reporting to any of the staff members, in fact if ever there was a reporting structure it would probably be to the parents of the children she looked after. The governing body had no control over how she ran her classes either than the fact that they stipulated that toys and equipment be provided to the children and of course that the classrooms be well maintained. The governing body can stipulate the code of conduct for the other teachers but surely Mrs. James would not be subjected to this. In terms of the Organizational test, Mrs. James has been a part of the school for 15 years receiving a cheque from the school governing body like any other member of the organization and hence feeling somewhat involved with the school. However should the teachers for instance be involved in industrial action over salaries would Mrs. James as “part of the teachers’ organization” get involved or benefit from salary increases? There was no formal contract between the two but the school does provide the classroom (capital asset) and pay her via cheque signed by the governing body. To some degree they can terminate her services but not necessarily through disciplinary procedures as would be the case with their employees. If the school can no longer provide or choose to offer their facilities to someone else, surely the contract involved between Mrs. James and the school, would be more a tenant/landlord agreement rather than an employer/employee agreement. Who profits from the provision of these services? The fees paid by the parents are wholly received by Mrs. James which makes it seem as though she’s the only one profiting from the services rendered but arguably the school indirectly benefits from this arrangement. For instance parents of prospective school children may consider the provision of after care facilities as an added bonus when trying to decide which school their little one should attend. Furthermore Mrs. James has the added benefit of receiving her collated fees on time with no risk of theft etc. in a convenient manner at no extra charge to her. Teachers employed by the school earning a salary in exchange for the services carried out at the business of their employer are entitled to certain benefits. If the school was her employer then Mrs. James would’ve had to obey reasonable instructions from the school regarding her work but it seems she ran her business independently. The court should thus not rule in her favour as she wasn’t an employee of the school and hence cannot be retrenched.
Word Count: 402
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