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Labour Perspectives: What are the duties of the employer in an employment contract?

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This week’s article will look at the duties of the employer in an employment contract.

The three principal duties of the employer are to provide work, to remunerate the employee, to ensure that working conditions are safe and healthy and to discharge its general statutory and contractual duties.

Under common law, the employer is required to provide the employee with work.

However, the employer may choose to let the employee sit and do nothing, as long as the employee receives his or her due remuneration.

This point was stressed by the court in Commercial Careers College (1980) (Pvt) Ltd vs Jarvis (1989).

Employers have taken this to mean that if they force an employee into idleness, by giving less work or no work to do at all, it would be cheaper than dismissal.

In Kandembiri vs DDF and Another (1998), the employer decided not to give work to a driver who had been involved in an accident with a company vehicle, ostensibly as a way of frustrating him.

However, the employer continued to pay his wages. When the driver stopped coming to work, he was dismissed.

The High Court upheld the dismissal as lawful. However, there are exceptions to this.

In instances where remuneration is based on the volume of work done or where the failure to allow the employee to work degrades his status, or where the employer has contracted to train the employee in a particular profession or trade as in the case, for example, of articled clerks and apprentices, the employer has a duty to provide actual work.

In Standard Chartered Bank vs Matsika (1997), the Supreme Court held an employer who had rendered a reinstated employee idle to be in breach because the employee’s remuneration depended on actual work.

The same principle had been reached earlier in a 1981 case of Muzondo vs University of Zimbabwe.

It is also important to note that employers who may wish to deny their employees access to the workplace or otherwise prevent them from working for disciplinary or other reasons will be considered as having “locked-out” the employee, which is a form of collective job action as defined in the Labour Act.

The second duty of the employer is to remunerate the employee. This duty is so fundamental to the employment contract such that in Brown vs Hicks (1902), it was held that a contract without remuneration could not be considered a contract of employment.

As earlier highlighted, the duty to pay and the right to remuneration arise not from the actual performance of work, but from the tendering of service, meaning that employees who are available to do work are entitled to be paid even if the employer does not have work for them to do.

Employers should not unjustly enrich themselves at the expense of employees by refusing to pay for the services rendered to them from which they have benefited, as was stated in the 1995 case of City of Harare vs Zimucha.

Where the employee is unavailable to tender service, the employer is not obliged to pay, for example when the employee is absent or has embarked on collective job action.

Section 12A of the Labour Act requires employees to be paid their remuneration in cash.

However, remuneration may be partly in kind where this has been part of custom and practice in the organisation. The frequency of payment of remuneration depends on the parties’ agreement or on custom and this is usually daily, weekly, fortnightly or monthly.

An employer may not unilaterally deduct any amount from the remuneration to which the employee is entitled unless the employee has agreed to it in respect of a specific debt, or unless deductions are required or permitted in terms of the law, collective agreement, court order or arbitral award.

In the same vein, it was held in Blismas vs Dardagan (1950) that the employee has no right to hold back his or her employer’s property as security for unpaid wages.

Thirdly, employers are obliged to provide their employees with reasonably safe and healthy working conditions.

This includes providing proper machinery and equipment, and adequately trained and competent supervisory staff.

There are a number of laws governing health and safety in the workplace which include National Social Security Authority’s Statutory Instrument 68 of 1990, Factories and Works Act, Public Health Act, Pneumoconiosis Act, among others. In terms of the Labour Act, if employers fail to meet their health and safety obligations, the affected employees are not in breach of their contract if they withdraw their labour until the dangerous situation is corrected.

Where an employee is injured in an accident caused by proven negligence of the employer, he or she will clearly sue the employer for breaching its duty of care.

However, let me hasten to point out that employees cannot wilfully or negligently endanger the health and safety of themselves or others.

Employees who find themselves in this situation risk forfeiting compensation and will be liable to disciplinary action by the employer.

Fourthly and lastly, the employer is expected to fulfil general contractual and statutory duties arising from individual contracts of employment, collective bargaining agreements and labour legislation.

These include granting leave — which can be vacational/annual leave, sick leave, unpaid leave, maternity leave or special leave.

It should be noted that proceeding on each type of leave is not an automatic right.

The granting and timing of vacation leave is granted at the discretion of the employer. An employee who proceeds on leave which has been declined by the employer may be dismissed, as was stated in the Supreme Court case of Zisco vs Keche (1998).

For sick leave and maternity leave, the employer will only approve the employee’s application on submission of relevant documentation from registered medical practitioners.

There is no obligation in law for the employer to provide study leave; that well depends on the policies of that particular employer.

Employers should also observe prescribed hours of work and overtime regulations.

It is important to note that in respect of the employment contract, the employee’s rights place obligations on the employer and vice versa.

Parties must be careful not to interpret their rights and obligations too literally as courts have made varying decisions in similar situations.

Each situation must be looked at critically and on its own merits.

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