The an employee it includes any agent,

The contract of employment is an agreement between two legal parties in terms of which the employee undertakes to place his or her personal service at the disposal of the employer for a determined period in return for remuneration. The employment contract gives rise to an employment relationship between the parties to such agreement. An employment relationship commences when the parties conclude a contact of service. It is through the employment relationship however defined that reciprocal rights and obligations are created between the employee and the employer . It has been and continues to be, the main vehicle through which workers gain access to the rights and benefits associated with employment in the area of labour law. According to the statutory definition an employer means any person or undertaking , a contract, corporation company ,public authority or body of persons who or which has entered into a contract of employment with an employee it includes any agent, representative manager of such person undertaking ,corporation ,public authority or body of persons who is placed in authority over that employee while an employee means any person to whom wages are paid or are payable under a contract of employment. A legal relationship between employer and employee is one of contract, based on common law principles. The duties of employers and employees will be dealt with in this essay.
The conclusion of a common law contract of employment creates certain duties on the part of parties to the contract. The duties are reciprocal which means that certain obligations are created both on the part of the employer and the employee. The first duty arising on the part of the employee is the duty to enter and remain in service. In the case of Smith v Workmen’s Compensation Commissioner it was stated that the main contractual obligation of employees is to place their personal services at their employer’s disposal. After a contract of employment has been concluded an employee must enter and remain in service. Martin Brassey says that the object of the contract of employment is the rendering of personal services by the employee. The employment contract is one of personal services to be an employee a person must be at the beck and call of the employer to render his personal services at the behest of the later. When the employee tenders his personal services to the employer tendering of personal services then qualifies the employee to be paid remuneration meaning also that under both common law and statutes the employees who do not tender services are not entitled to wages irrespective of the reason of their non-tender . The employee has to remain in service until excused. Section 39 of the Employment Act provides that an employer may suspend an employee from his or her employment without pay where the employer is remanded in custody.
Employees have the duty to work competently and diligently also known as the duty to maintain reasonable efficiency. The case of Friedlander v Hodes provides that “employees are deemed by law to impliedly guarantee that they are capable of performing the tasks they agreed to perform and that they will carry them out with reasonable efficiency’. When an employee applies and is awarded, a specific job, the expectation is that he warrants himself capable of performing the duties he has applied for. Where an employer seeks assurance about employee’s competence before taking them into service, the employees are bound by any representations they make, whether those professions of competence are made by the employees themselves, or in testimonials of which they are aware . The standard of competence employers are entitled to expect of their employees depends on the capacities in which the employees are engaged and the status and seniority accorded them. The test for the standard of competence is that of persons comparable with the employees in question, having regard to training, experience and any special claims the employee might have made regarding his competence. Where an employee has warranted that he possesses a particular degree of skill, he must satisfy that representation.
Employees have the duty to be respectful and obedient. Respect and obedience are regarded as an implied duty of every employee. Absence of the former renders the interpersonal relationship between employer and employee intolerable, denial and the latter undermines the employer’s right to decide how its employees will work and it undermines the employer’s power. The employee is in terms of the contract of service subordinate to the will of the employer. He is obliged to obey the lawful commands, orders or instructions of the employer who has the right of supervising and controlling him by prescribing to him what work he has to do as well as the manner in which it has to be done. Section 11 (1) of the Occupational Act supports this duty by saying that an employee shall cooperate and follow instructions by the employer , commissioner , inspector or any other person lawfully authorised to give such instructions. The court requires all employees to show a reasonable degree of respect and courtesy to their employers and to obey their employer’s reasonable and lawful instructions. Failure on occasions to greet the employer or superior will not place employees in breach of their obligation to show respect, disrespect must grow if it is to justify termination of the employment relationship. Or so frequent as to suggest that the employee has repudiated the employer’s lawful authority or that it has rendered the continuation of the employment relationship intolerable. Noncompliance with duty constitute serious insubordination or breach of contract, expect where employee refuses to follow orders outside the scope of employment contract. Employees are also entitled to disobey instructions that would subject them to personal dangers not normally connected with the performance of their duties.
An employee have the duty to further the employer’s business interest. In the case of Ketteringham v Cape Town City Council , it is said that Employees are obliged to devote their energies and skills to furthering their employer’s business interest. This means that an employee should commit oneself to their normal working hours to the employers business. The employees may not work for another employer during the hours they are contractually bound to devote to their employer’s needs, because the relationship between an employer and an employee is of a fiduciary nature meaning that employees must not conflict with the employers business. The interest of employees must be bonafide. They may not work for another employer if its business interests are in conflict with those of the principle employer . In the absence of a contrary provision in the contract, there is nothing to preclude employees from holding two compatible jobs , provided the second is not conducted during the working hours they are obliged to commit to the first job, contracting provisions limiting employees moonlighting activities are however permissible. Employees may not compete with their employers business for their own account because the ones who compete secretly breaches their fiduciary duty
Lastly on the duties of employees is the duty to refrain from misconduct. Misconduct means unlawful behaviour by a person entrusted in any degree by which the rights of the parties and the justice of the case may have been affected. Conduct by the employee that causes the employment relationship intolerable and that undermines the trust and confidence between an employer and employee is regarded as sufficient to justify dismissal. Employees who infringe a workplace rule may be found guilty of misconduct. At common law, an employee may be summarily dismissed for misconduct if he breaches a vital term of the contract .if there is a breach of contract of employment an employer may terminate the contract of employment but this must be after a fair process. Section 36(a) of the Employment Act No. 5/ 1980( as amended) also permits dismissal of misconduct and some examples of misconduct that are listed incudes absenteeism and dishonest. Usually If the employer has the duty to select who will do the work meaning the duty to receive the employee into service he most likely have the duty to dismiss and also will be some indication that the relationship between them is one of employment.
An employment contract creates reciprocal duties between the employer and employee, hence the employers also have duties firstly the employer have the duty to receive the employees into service. The employee will be entitled to remuneration. In the case of Kinemas Ltd v Berman it was held that an employer who refuses to receive an employee into service commits a breach of the contract of employment. The duty to receive the employees into the service does not mean that employers must necessarily provide employees with work to keep them busy they are some exceptions here example remuneration is based on the volume of work done. A duty to provide work may also arise where the employer has contracted to train the employee in a particular profession or trade as in the case of article clerks the common law permits the suspension of an employee subject to some forms of grave misconduct while the matter is being investigated but the employee is entitled to his remuneration during the period of suspension .since the contract of employment is personal one employer cannot compel an employee to work for another if the first employer has no work for him unless the first employers business is transferred as a going concern.
The employer has the duty to remunerate the employee. Remuneration is key in an employment contract. Some scholars even say that this duty is so fundamental to the employment contract. Remuneration normally takes the form of payment of money or the provision of another benefit. According to common law, payment may be made monthly, weekly, or daily or even in irregular cash payments, the common law doesn’t prescribe what form of payment must take. Where there has been no agreement on remuneration either that the contract is not a contact of employment or else that the parties impliedly intended the payment of a reasonable sum according to the custom in practise of the industry in locality. Martin Brassey submits that the judgement most clearly on point is the case of R v Caplin it says that the essential elements of the relation between employer and employee under the common law and for the purposes of the Industrial Conciliation Act are that the employer must engage the employee to perform work for hire or reward. The court went on to say that the reward need not to be fixed, but it has to be ascertainable with certainty. There is also a maxim which says “no work no pay”. The duty to pay arises not from the actual performance of work but from the tendering of work.
The employers have the duty to ensure safe working conditions. Under the common law, employers are obliged to provide their employees with reasonably safe and health working conditions. This includes providing proper machinery and equipment, properly trained in competent supervisory staff in a safe system of working. If the employer provides the tools for the job, this will tend to suggest that the relationship is one of employment. If the employer fails to meet this obligation affected employees are not in breach of contract if they refuse to work until the dangerous situations corrected . Section 9 of The Occupational Safety and health Act 2001 provides the duty of the employer and it provides that an employer shall ensure the safety and health of all employees during employment by securing safe and healthy working conditions. The scope of this duty extends to providing proper machinery and equipment, properly trained and competent, supervisory staff and a safe system of work.
Apart from the common law duties of the employers and employees mentioned in the essay above, some duties of employers includes granting benefits to employees example giving them bonuses once per year, promoting them, giving them accommodation and maybe cars. And also statutory duties, employers are obliged to discharge duties imposed by applicable legislation the most important one being to observe prescribed hours of work, the working hours are regulated by the contact of employment and in certain circumstances the employer may require the employee to work additional hours normally called overtime. To grant leave as well this includes annual leave, maternity leave and sick leaves.
In conclusion, the contract of employment is a reciprocal contract. This means certain obligations are created both by the employer and the employee and the duties includes common law duties, statutory duties and other specific contractual obligations as mentioned above.