Abstract
This piece, which is in three parts, will revisit the importation of fairness into the employment contract (outside and independent of the fairness-based provisions of our labour legislation) by a line of Supreme Court of Appeal (SCA) judgments during the 2000s. This process culminated in the recognition of an "implied duty of fair dealing" in the common-law employment contract. This piece will discuss such developments, will argue that such an implied duty still forms part of our law (despite the apparent consensus in the literature that the SCA turned its back on such earlier judgments), will critically examine some of the arguments for and against the recognition of such a duty, and will then consider the issue within the broader context of the role of good faith and fairness in our general law of contract.
 
Highlights
Part 1 of this piece examined the line of cases before the Supreme Court of Appeal (SCA) in the period between 2003 and 2010 which involved constitutional development of the common-law employment contract in order to import notions of fairness into the employment relationship
Part 3, I will examine some of the main arguments for and against the continued recognition of such an implied duty of fair dealing as a mechanism which may run parallel to the scheme of fairness contained in the labour legislation in order to ensure the optimum pursuit of the constitutional guarantee of fair labour practices as contained in section 23 of the Bill of Rights
The legislature in South Africa intended to provide a special protection scheme for the most vulnerable workers. We find this in the unfair labour practice and unfair dismissal provisions of the Labour Relations Act of 1995 (LRA), and in its collective bargaining scheme
Summary
Louw AM "'The Common Law is ... not what it used to be'*: Revisiting Recognition of a ConstitutionallyInspired Implied Duty of Fair Dealing in the Common Law Contract of Employment [Part 3]" PER / PELJ 2018(21) - DOI http://dx.doi.org/10.17159/17273781/2018/v21i0a5662
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