The contract of employment is an agreement between two parties in terms of which one party (Mr. Phage) places his labour potential at the disposal and under the control of the other party (Lifeline services), in exchange for some form of remuneration.
From this definition, it is clear that the essentialia of a contract of employment are 1.Work and
This contract does not meet the requirement for work because even though an ambiguous job title of ‘General Worker’ has been given, no type of work or job description has been specified. The contract states that the employee will perform ‘any and all duties’ required by the employer without specifying a particular field or area of expertise with which that relates to. As a result that no specified tasks have been assigned:
a)It is impossible for the employee to agree to an appropriate remuneration. b)It is impossible to identify under what circumstances disciplinary action may be taken in areas such as under / non-performance.
The contract does however meet the requirements for remuneration. The amount is certain and fixed at the sum of R3000 which is paid monthly in Cash. Control Test
An employment contract states that an employee is subject to the authority and supervision (control) of the employer. However, the amount of control an employer can exercise over an employee is questionable. However, the degree of control they have which allows them to decide how an employee’s labour is to be utilized is referred to as the control test.
The control test requires one to consider all the facts as they appear from the agreement between the parties, their practices and customs in order to decide whether or not the relationship has the appearance of an ordinary contract of employment.
The Employee, Mr. Phage:
I.Is obliged to render his services personally and may not delegate this obligation – From the contract, it can be ascertained that he is indeed obliged to personally render the services as his hours of work, days of work, lunch breaks and details of his leave have been set out in the contract. II.Keep fixed hours and is paid a regular wage or salary –Mr. Phage has fixed hours from 7 a.m. to 10 p.m. Though the legality of these hours is in question, the fact remains that they are clearly stated in the contract. With regards to a regular wage, Mr. Phage receives a monthly salary of R3000 per month. III.Is subject to the alleged employer’s disciplinary code – Though this has not been specifically stated, it can be assumed that Mr. Phage is under the company’s disciplinary code as the Employer has left the conditions under which employment can be terminated as being very broad to possibly include the disciplinary code if one exists. IV.Is entitled to benefits, such as membership of a pension fund or medical aid scheme – From the details of the contract, Mr. Phage is not entitled to any pension fund or medical scheme. V.Is subject to a degree of control by the employer – Mr. Phage is under a great deal of control by the employer. Under job description, the employer can ask Mr. Phage to undertake any task. Though the legality of this statement is in question, Mr. Phage is definitely under the control of the employer.
From this control test, it can be concluded that Mr. Phage is indeed an employee of Lifeline Services, however the legality of certain aspects of his contract needs to be investigated. This is covered in the next section. Contract compliancy with Legislation
It is to be noted that even though a contract may comply with the essentialia of an employment contract and the control test, it may not be compliant with the relevant legislation which governs a valid employment agreement. We will now test the detail of the contract to check if it complies with The Basic Conditions of Employment Act 75 of 1997 (hereinafter referred to as BCEA), the Labour Relations Act 66 of 1995 (hereinafter referred to as LRA) and the...