Abstract
The disparity of power in the employment relationship has courted argument that this imbalance continues to be perpetuated in the guise of “the contract of employment”, thereby rendering the contract of employment irrelevant and ineffective in advancing labour law rights. This article counters this view by illustrating the changed nature of the traditional foundation of the employment relationship, known as the contract of employment. The advent of a constitution and our courts’ willingness to develop and strengthen rights and obligations arising from the contract of employment are considered. In addition, the impact of legislation, collective bargaining and the recent more purposive interpretation of the statutory definition of “employee” are discussed. The writers conclude that, although the contract of employment is not a panacea to the employment relationship, it is useful and expedient when interpreted and enforced against the backdrop of constitutional imperatives.
Highlights
Whether the contract of employment is still relevant today and acts as an admission ticket for labour law rights or, rather, as an insurmountable hurdle to such rights is a question that requires discussion against the back-drop of the following assertion:“But the relation between an employer and an isolated employee or worker is typically a relation between a bearer of power and one who is not a bearer of power
The disparity of power in the employment relationship has courted argument that this imbalance continues to be perpetuated in the guise of “the contract of employment”, thereby rendering the contract of employment irrelevant and ineffective in advancing labour law rights
It is submitted that considerations such as the very nature of the employment contract per se, regard had to its status– based history and its unique distinctiveness from other contracts[56] render it inappropriate for the relationship between employee and employer to be governed purely according to the clinical legal dictates of law of contract which may disregard the unequal bargaining position of the parties on the one hand or on the other hand regard a dismissal to be lawful whilst disregarding the fairness thereof
Summary
The disparity of power in the employment relationship has courted argument that this imbalance continues to be perpetuated in the guise of “the contract of employment”, thereby rendering the contract of employment irrelevant and ineffective in advancing labour law rights. This article counters this view by illustrating the changed nature of the traditional foundation of the employment relationship, known as the contract of employment. The writers conclude that, the contract of employment is not a panacea to the employment relationship, it is useful and expedient when interpreted and enforced against the backdrop of constitutional imperatives
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