Discipline And Common Law

Common law treats the contract of employment as a simple commercial or market transaction. This implies, firstly, that the relationship rests on an abstract, impersonal bargain requiring only limited commitment from the parties. The employee claim and the employer’s obligation are for wages and little else. The core of the common-law implied terms are, on the employee’s side: a duty of obedience to the employer’s lawful instructions; a duty of fidelity; a duty of care; and a duty of reasonable efficiency or competence. On the employer’s side there are: the duty to receive the employee into service; the duty to provide reasonably safe working conditions; and the duty to remunerate the employee. It is the common-law implied terms which most clearly express social and economic assumptions about the nature of employment.

In terms of the common law, the employer may summarily dismiss (i.e. dismiss without notice) the employee if the latter’s misconduct is serious. The employer may also dismiss the employee by merely giving the required notice.

However, in practice the employer’s range of penalties are usually not limited to those that fall within the ambit of the contract. Though the employer’s superior bargaining could probably ‘convince’ the employee to agree to a penalty which would otherwise have amounted to a breach of contract, the employer’s almost unlimited common law right to dismiss is the foundation of the employer’s power to make rules and enforce discipline. If an employee contends a disciplinary rule, the employer’s response would probably be to simply show the employee the door.

Therefore, in terms of the common law, little or no security and protection is provided for employees. A contract of employment is further full of shortcomings to express the real issues experienced in the employment relationship. Therefore, a wide range of statutory protection is provided and introduced for employees in order to reflect the modern employment relationship. South Africa can proudly say that we have some of the best checked legislation in the world regarding the employment relationship, i.e.:

• Fundamental rights – the Constitution
• Regulating individual and collective labour relations – Labour Relations Act (LRA) 66 of 1995
• Social security legislation – Unemployment Insurance Act (UIA) 63 of 2001; Compensation for Occupational Injuries and Diseases Act (COIDA)130 of 1993
• Promotion of employment – Employment Equality Act 55 of 1998(EEA)
• Regulating working conditions – Basic Conditions of Employment Act (BCEA) 75 of 1997
• The development of skills – Skills Development Act 97 of 1998); Skills Development Levies Act 9 of 1999, amongst others