The employment relationship is a reciprocal one. In both common and statute law, when parties enter into an employment contract, they each incur certain rights and obligations.
Broadly speaking, the employer is entitled to make use of the employee’s labour to produce goods and services and to further the objectives of the enterprise. In return, the employee is entitled to remuneration for the services rendered.
Failure by either party to discharge its obligations amounts to a breach of the employment contract. When that happens, the innocent party is justified in terminating the employment contract, claim for damages or seek an order compelling the guilty party to comply with the contract.
This week’s instalment will look into the five principal duties of the employee in an employment contract. These are to provide service, to maintain reasonable efficiency, to further the employer’s business interests, to be respectful and obedient and to refrain from misconduct generally. I will quote relevant cases decided by local or foreign courts to illustrate each of these duties.
The main contractual duty of an employee is to place his or her personal services at the employer’s disposal for as long as the employment contract exists. This is a prerequisite to the employee’s right to claim wages. An employee who does not tender service is not entitled to remuneration; the maxim being “no work, no pay”.
For example, although employees can legally embark on collective job action, they cannot claim pay while on it, whether the job action is lawful or unlawful. The reverse is also true: “no pay, no work”, that is, employees who have not been paid may rightfully refuse to work without breaching their contracts. Failure to tender service by the employee may take many other forms such as poor timekeeping, lengthy periods of illness, absenteeism, desertion and so on. Depending on the circumstances of each case, the employer is entitled to deduct from an employee’s wage an amount proportional to the absence or to terminate the employment contract.
Employees may also be required to work overtime and may be dismissed if they unreasonably refuse to do so. Conversely, however, as the case of Toerien vs. Stellenbosch University (1996) shows, an employee who is available to provide service but is prevented by the employer from doing so is entitled to be paid.
The second duty of employees is to serve their employers diligently and efficiently. By entering into an employment contract, employees are deemed by law to have impliedly guaranteed that they are capable of performing agreed tasks and that they will carry them out with reasonable efficiency.
The standard of competence expected of employees varies depending on the capacities in which they are employed and the status and seniority accorded to them.
For example, skilled artisans with several years of experience will obviously be expected to be more competent than newly-recruited apprentices. In a 1982 case of Zimbabwe Broadcasting Corporation (ZBC) vs Jones, the Supreme Court upheld the dismissal of a white news reader who, despite training, had continued to wrongly pronounce the names of African leaders.
Thirdly, employees have a duty to devote their energies and skills to furthering their employer’s business interests. Most employment contracts require employees to seek the employer’s permission to do remunerated work for a third party, even after hours. Moonlighting or working simultaneously for another employer is usually viewed as a repudiation of one’ contract of employment.
Due to the fiduciary nature of the employer-employee relationship, employees may also not place themselves or enter into arrangements where their own interests conflict with those of their employers, for instance, by engaging in undisclosed business dealings on behalf of their employer with a company owned by a close relative or friend.
It is an obligation on the employee to disclose such arrangements before or during their employment. Soliciting or accepting bribes from a third party for performing work on behalf of the employer also amounts to a breach of trust. Where a contract of employment has a “restraint of trade” clause, the employee may not compete with the employer for a certain period of time after the employment contract has ended.
Courts have generally shown sympathy to employer’s rights to their trade secrets. “Restraint of trade” agreements are considered lawful. However, the courts require that the extent of the limitation they impose be reasonable, as was held in the case of Mangwana vs Muparadzi (1989).
The fourth obligation of the employees is to be respectful and obedient. This is also referred to as the duty of subordination. Lack of respect or disobedience by the employee undermines the employer’s authority and renders the employment relationship intolerable. The employee’s duty of subordination applies only to work-related orders and generally during working hours.
Employees have a duty to behave in a manner compatible with the subordinate position in which the employee by definition stands vis-à-vis the employer. Mere failure to greet the employer or superiors will not place employees in breach of this obligation.
Disregard of the duty of subordination may justify termination of the employment relationship provided it is either gross or so frequent as to render the continuation of the employment relationship intolerable. In Medical Investments (Private) Limited t/a Avenues Clinic (1996), the Supreme Court upheld the dismissal of a junior employee who, on being given an instruction by a senior employee, replied, “f*** off!” Similarly, in Jamieson vs Elsworth (1915), the court ruled that the employee’s letter to his boss was too offensive such that “no self-respecting man could continue to employ a man who so addressed him”.
The fifth duty requires the employee to refrain from acts of misconduct as long as the contract of employment subsists. Employees are required to act in good faith and may be justifiably dismissed if they act in a manner that undermines the trust and confidence between them and the employer.
Misconduct held to justify summary dismissal include wilful damage to the property of an employer, such as in Muzuva vs United Bottlers (1994), sexual harassment as in Mudzingwa vs One Stop Co-op (2001), gross dishonesty, wilful endangering of the safety of others, physical assault on the employer or a fellow employee, revealing trade secrets, desertion, gross negligence and so on.
But what are the duties of the employer?