It is no secret that an employment relationship exists because of three important elements: an employee, an employer, and a contract of employment. These are all defined in section 2 of the Employment Act as follows:
- Employee: “any person who has, either before or after the commencement of this Act, entered into a contract of employment for the hire of his labour.”
- Employer: “any person who has entered into a contract of employment for the hire of the labour of any person, including a public authority, or the person who owns or is carrying on for the time being or is responsible for the management of the undertaking, business, or enterprise of whatever kind in which the employee is engaged.”
- Contract of employment: “an agreement, whether oral or in writing, expressed or implied, whereby one person agrees for a wage or other benefit or both to let his labour to and to perform it under the orders of another person who agrees to hire it.”
A contract of employment is governed by labour laws, meaning the contract can be tailored however the employer wants, but it must be within the bounds of these laws. Moving closer to the subject at hand, the Employment Act provides minimum employment rights, and whatever employers provide must not be less than what the Act stipulates. Employee rights vary from wages to rest periods, but this article aims to highlight the fact that employers can lawfully get away with failing to provide what they are contractually obligated to do. Read on to appreciate what this means.
The law
We will turn our attention to employers’ duty to provide work. Section 16 of the Employment Act addresses this, stating:
“Every employer shall, unless the employee has broken his contract of employment or the contract of employment becomes, without default on the part of the employer, impossible of performance, provide his employee with work in accordance with the contract of employment during the period for which the contract is binding on a number of days equal to the number of working days provided for, either expressly or by implication, in the contract of employment. If an employer fails to provide work in accordance with subsection (1), he shall pay to his employee, in respect of every day on which he so fails, wages at the same rate as if the employee had performed a full day’s work, whether the employee is or is not released from the workplace.”
As highlighted above, employers must ensure that they provide work for every employee they have. However, if they fail to do so, they must pay the employees for each day they fail to provide work at the agreed rate. An employer can get away with this obligation if the employee breaches their contract of employment or if it becomes impossible for the employer to provide work due to reasons beyond the employer’s control.
The second element is clearly explained in the case of Moemedi Mmusi & 3 Others v. Delswiz Manufacturing (Pty) Ltd. The employer was engaged to undertake a short-term project by Debswana Diamond Company and recruited employees for that purpose. The project was postponed several times, eventually leading the employer to release the employees upon request. The Industrial Court ruled in favour of the employer, stating that although they had a duty, they could not provide work due to external reasons, i.e., Debswana.
Contacts
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