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About this Labour Law Module The Labour Law Module has been produced by National Institute of Public Administration (NIPA). All modules produced by the Institute are structured in the same way, as outlined below. How this Labour Law Module is structured The Module overview The module overview gives you a general introduction to the module. Information contained in the module overview will help you determine: What you can expect from the course. How much time you will need to invest to complete the course. The overview also provides guidance on: Study skills. Where to get help. ▪ Assignments and assessments ▪ Activity icons We strongly recommend that you read the overview carefully before starting your study. The Module content The Module is broken down into twelve (12) units. Each unit comprises: An introduction to the unit content. Unit outcomes. New terminology. Core content of the unit with a variety of learning activities. A unit summary. Assignments and/or assessments, as applicable.
For those interested in learning more on this subject, we provide you with a list of additional resources at the end of this labour law; these may be books, articles or web sites. Your comments After completing this Labour Law Module, we would appreciate it if you would take a few moments to give us your feedback on any aspect of this course. Your feedback might include comments on: Content and structure. Reading materials and resources. Assignments and Assessments. Duration. Support (assigned tutors, technical help, etc.) Your constructive feedback will help us to improve and enhance this course.
issues. There are a number of excellent resources on the web. A few suggested links are: ▪ http://www.how-to-study.com/ The “How to study” web site is dedicated to study skills resources. You will find links to study preparation (a list of nine essentials for a good study place), taking notes, strategies for reading text books, using reference sources, test anxiety. ▪ http://www.ucc.vt.edu/stdysk/stdyhlp.html This is the web site of the Virginia Tech, Division of Student Affairs. You will find links to time scheduling (including a “where does time go?” link), a study skill checklist, basic concentration techniques, control of the study environment, note taking, how to read essays for analysis, memory skills (“remembering”). ▪ http://www.howtostudy.org/resources.php Another “How to study” web site with useful links to time management, efficient reading, questioning/listening/observing skills, getting the most out of doing (“hands-on” learning), memory building, tips for staying motivated, developing a learning plan. The above links are our suggestions to start you on your way. At the time of writing these web links were active. If you want to look for more go to www.google.com and type “self-study basics”, “self-study tips”, “self-study skills” or similar. Need Help? In case you need help, you can contact NIPA at the following website, phone number or you can email. www.nipa.ac.zm NIPA-Main Campus – Outreach Programmes Division Phone Numbers:+260- 211 - 222480 Fax: e-mail address:[email protected]
The teaching assistant for routine enquiries can be located from the Outreach Division from 08:00 to 17: or can be contacted on the numbers and email address indicated above. Library There is a library located at the main campus along Dunshabe Road. The library opens Monday to Friday from 08:00 to 17:00. Assignments There shall be one assignment and a test during residential school given for this module and the assignments should be sent by post or email them to the provided email addressed to the Outreach Programmes Division – Nigeria Hall. Assignments should be submitted to Outreach Programmes Division Registry. Assessments There shall be a minimum of two (02) assessments given to the students undertaking this subject These assessments shall be teacher marked assessments. The assessments shall be determined and given by the course tutors after you have covered a number of topics The teacher/tutor shall ensure that the assessments are marked and dispatched to the student within a period of two weeks.
Learning tips You may not have studied by distance education before. Here are some guidelines to help you. How long will it take? It will probably take you a minimum of 70 hours to work through this study guide. The time should be spent on studying the module and the readings, doing the activities and self-help questions and completing the assessment tasks. Note that units are not all the same length, so make sure you plan and pace your work to give yourself time to complete all of them. About the study guide This study guide gives you a unit-by-unit guide to the module you are studying. Each unit includes information, activities, self-help questions and readings for you to complete. These are all designed to help you achieve the learning outcomes that are stated at the beginning of the module. Activities, self-help questions and assessments The activities, self-help questions and assessments are part of a planned distance education programme. They will help you make your learning more active and effective, as you process and apply what you read. They will help you to engage with ideas and check your own understanding. It is vital that you take the time to complete them in the order that they occur in the study guide. Make sure you write full answers to the activities, or take notes of any discussion. We recommend you write your answers in your learning journal and keep it with your study materials as a record of your work. You can refer to it whenever you need to remind yourself of what you have done. Unit summary At the end of each unit there is a list of the main points. Use it to help you review your learning. Go back if you think you have not covered something properly.
Studying at a distance There are many advantages to studying by distance education – a full set of learning materials as provided, and you study close to home in your own community. You can also plan some of your study time to fit in with other commitments like work or family. However, there are also challenges. Learning at a distance from your learning institution requires discipline and motivation. Here are some tips for studying at a distance.
- Plan – Give priority to study sessions with your tutor and make sure you allow enough travel time to your meeting place. Make a study schedule and try to stick to it. Set specific days and times each week for study and keep them free of other activities. Make a note of the dates that your assessment pieces are due and plan for extra study time around those dates.
- Manage your time – Set aside a reasonable amount of time each week for your study programme – but don’t be too ambitious or you won’t be able to keep up the pace. Work in productive blocks of time and include regular rests.
- Be organised – Have your study materials organized in one place and keep your notes clearly labeled and sorted. Work through the topics in your study guide systematically and seek help for difficulties straight away. Never leave this until later.
- Find a good place to study – Most people need order and quiet to study effectively, so try to find a suitable place to do your work – preferably somewhere where you can leave your study materials ready until next time.
- Ask for help if you need it – This is the most vital part of studying at a distance. No matter what the difficulty is, seek help from your tutor or fellow students straight away.
- Don’t give up – If you miss deadlines for assessments, speak to your tutor – together you can work out what to do. Talking to other students can also make a difference to your study progress. Seeking help when you need it is a key way of making sure you complete your studies – so don’t give up.
Test adopted by the courts to establish whether a relationship is one of services or for services Sometimes it is difficult to distinguish between a contract of service and a contract for service. In order to make this distinction the courts apply a number of tests, the principles ones being the following:
1. Control test When using this test to determine whether a contract is of service or for service, the courts will ask the following questions: a) Does the employer tell the employee what to do and; b) Does the employer tell the employee how to do his work? If the answer to the above questions is in the affirmative, then possibility has it that there is a contract of service. On the other hand, if the answer is in the negative, then it is possible that there is a contract for service. Whittacker v Minister of Pensions (1996) A trapeze artist refused to take orders in respect of her act but helped in the seating of the audience and movement of the circus. The later element of control made her an employee. 2. Integration tests In certain instances, it may not be possible for the courts to get the desired answers by simply using the control test. This is usually common with specialized manpower like doctors. Thus, the courts may find it useful to use the integration test to determine whether one is in a contract of service or for service. This test may also involve the asking of two questions: a) Is the employee concerned part and parcel of the organization. b) Is his work an integral part of the business? If the answer to the above questions is in the affirmative, it will be taken that one is in a contract of service and if the answers are in the negative then it can be concluded that it is a contract for services.
Cassidy v ministry of Health (1951) KB 343 A doctor negligently treated a patient. The hospital was held to be his employers under the doctrine of vicarious liability even though it did not control his work because he was part and parcel of the organization.
3. Multiple test This test is also known as the economic reality test and it takes into account both the control and integration test together with many relevant factors as:
- Remuneration
- Membership of Company Pension Scheme
- Prohibition to working for competitors
- Supply of uniforms or equipment
- Work done on employers rather than employee’s premises. On multiple tests includes:
- The employer’s power of selection.
- Employer’s right to control the method of doing work.
- The employer’s right of suspension and dismissal. Ready-Mixed Concrete (South-East) v MPI (1961) Each driver of the company was financially assisted to buy his own vehicle. The vehicle had to be painted in the company’s colours. The drivers had to wear the company uniform and the available for work when required. They were paid a mileage rate for work done for the company. It was held that the drivers were not employees but independent contractors as they were operating at their own financial risk.
UNIT 2: CONTRACT OF EMPLOYMENT
Learning Outcomes
- A careful study of this unit will give you a practical knowledge of the formation of the contract of employment. 2.0 Introduction 2.1 The Contract of Employment To be legally binding a contract of employment must fulfill all the normal contractual requirements i.e. (a) Offer and acceptance The offer is made by the employer and accepted by the employee. (b) Intention to enter into legal relations Employment is a commercial agreement and therefore legal relations are presumed. (c) Consideration The consideration is the employers promise to pay the agreed wages in return for the employees promise to perform a particular task. (d) Capacity There is some restriction on the contractual capacity of minors. (e) Legality A contract of employment must not be tainted with illegality e.g. a contract which illegality e.g. a contract which deliberately seeks to defraud ZRA. Contract of employment may be written, oral or a mixture of two. At the extreme it may be a document drawn up by a lawyer and signed by both parties. At the other extreme it may consist of a handshake and “a see you next Monday”. However, from the practical point of view of clarifying what has been agreed upon should a dispute later arise, it is preferable and advisable to reduce a contract of employment into writing.
2.2 Oral Contracts of Employment S.24 of the Employment Act requires that oral contracts of employment be evidenced in writing. In this regard every employer is required to prepare and maintain at his expense a record of contract for every employee under an oral contract of service. The record must contain the following details: (a) Name (b) Sex (c) Nationality (d) Name, address and occupation of employer (e) Date of engagement and capacity in which the employee is employed (f) Type of contract (g) Place of employment (h) Rate of wages and any additional payments in kind (i) Interval of payment of wages. The law requires that the employee is given a copy of the record at the time of engagement and any employer who fails to comply with this requirement commits an offence for which he is subject to penalties. In the absence of the record and in the event of the dispute concerning the terms and conditions of employment the courts will rely on the employee’s version of the events or statement unless the employer proves the contrary. 2.3 Written Contract of Employment The following are contracts required to be in writing by S. 28 of the Employment Act. (a) Contract of Employment for six months or more (b) Contract of Foreign Service (c) Work which cannot be expected to be completed within six months. According to section 29 of the Employment Act a contract made under the provisions of S.28 shall not be enforceable unless it bears an attestation by a proper officer to the effect that such a contract was read over and explained to the employee in the presence of such officer. Contents of Written Contract of Employment According to Section 30 of the Employment Act a written contract of service shall not be attested by a proper officer unless it contains the following:
- Names of Employer and Employee
- Names of the business undertaking in which the employee is to be employed.
- Place of engagement.
- Date of commencement
UNIT 3: COMMON LAW DUTIES
Learning Outcomes A careful study of this unit will give you an appreciation of the circumstances in which the courts have held employers and employees to have duties towards each other. 3.0 Introduction Terms of the contract of employment are its contents i.e. prescribed particulars of employment. These must be expressly put in by the parties themselves; or implied if there is no express agreement. Terms of employment, such as wages, tasks, working conditions are often negotiated on a collective basis between an employer on one side and a trade union representing employees on the other. Statutory implied terms are often on wages, maternity leave, time off, work and health and safety. Common law duties of the employer and employee are circumstances in which the Courts have held employers and employees to have duties towards each other and, the following are the main common law duties of the employer and employee. It should also be noted that a duty on one party implies a right on the other. 3.1 The Employer’s Duties
- Payment of Wage The payment of wages is sometimes described as the employer’s primary duty-in that a failure to pay on the part of the employer will be regarded as breach of a fundamental term of the contract entitling the employee to leave immediately. In Duckworth Vs Farnish Limited (1969), Duckworth was loaned to another employer by Farnish Limited. When, a short time later, Duckworth was informed by Farnish Limited that he would have to look to his new employer for his wages the Court held that this was a fundamental breach of contract by them.
MOONJELLY OUSEPH JOSEPH Vs RDS INVESTMENT (2004) ZR 66 It was held that no one can be employed to work without receiving a wage because that would be illegal.
- Employer’s duty to indemnify employee It is implied in every contract of employment (unless the contrary is expressly stated) that the employee who incurs expense on his employer’s behalf is entitled to be indemnified. The expense or payment must have been made in the course of the employee’s duties.
- Employer’s duty to provide work It is sometimes said that an employer is under a duty not just to pay wages but also to provide work. The accepted view is that an employer will not be failing in his contractual duties by not providing work, provided he continues paying wages except: (a) in the case of piece-worker who requires to be given work to earn wages; (b) In the case of public performers who require the opportunity of work to maintain and enhance their reputation. Clayton and Waller Vs Oliver (1930) An actor was employed for a leading role in a show. The Management engaged someone else but agreed to pay the actor for his lost wages. However, he also sued for loss of reputation. It was held that he was entitled to damages. (c) Where failure to provide work extends over such a length of time as to indicate a deliberate intention not to carry on the contract.
- Safety It is the duty of every employer at common law to take reasonable care for the safety of employees, and failure to do so will render the employer liable in damages to an injured employer or. Other duties regarding the health and safety of employees and others are laid down by statutes, e.g. the Factories Act. Additionally, the employer must provide a safe system of work. This may involve the selection of competent staff and proper supervision, the provision of safe premises, plant and materials. These factors must be merged into a system to ensure that the work is executed in safety.
supplies from reputable suppliers because the employees could not be expected to carry out tests which might show up latent defects. This had the effect of requiring the employee injured by unsafe plant, etc, to sue its manufacturer or supplier or lose his remedy completely. Common Law Rights of the Employer The following are the common law rights of the employer:
- The employer, at common law has a right to have his employee perform his duties with proper care (see the case of Lister V. Romform Ice and Cold Storage Co. Ltd (1957) below):
- The employer has a right to have his employee cooperate with him and therefore, the employee is not allowed to contrive the employer’s rules in a manner which defeats the efficiency of his employer’s business. (Secretary of State for Employment V Aslef [No. 2 1972] below).
- The employer has a right to have his rightful orders obeyed by the employee. Where the employee fails to do so, the employer may dismiss him justifiably (Pepper V. webb [1969] below).
- The employer has a right to have the employee act with loyalty towards his business. This means that the employee is expected to take reasonable steps to advance his employer’s business within the sphere of his employment. It also means that the employee must not do anything that might injure the employer’s business. Thus an employee who gives information to the employer’s rival would be in breach of this principle. (Hivac V. Park Scientific Instruments [1946])
- The employer has a right to have his employee maintain secrecy over his affairs, thus An employee is not expected to divulge confidential information of his employer both during and after his employment relation has come to an end. (Robb V. Green [1895])
- The employer has a right to have his employee account for property or gain made using the employer’s name, property etc, to him (Reading V. Attorney General [1951])
3.2 The Employee’s Duties Implied at Common Law There is an underlying duty of faithful service implied into every contract of service. This is frequently subdivided into separate duties. It is better to remember that there is an underlying duty of fidelity or loyalty but that it is sometimes manifested in different ways. Often, of course, contracts of employment will contain express provision regarding the employee’s duties and these may provide additional or supplementary obligations.
1. Duty of Care There is implied into every contract of employment a duty that the employee performs his contract with proper care. In Lister Vs Romford Ice & Cold Storage Co. Ltd (1957), the employee drove his employer’s vehicles negligently and injured another. The employer’s insurance company, which had to meet the claim brought by the injured employee, required the employers to exercise their right to sue the careless employee for his negligent driving. The court held that an employee owes a contractual duty of care to his employer and breach of that duty found an action for damages. 2. Duty of Cooperation Even where the employer promulgates a rulebook containing instructions for the execution of the work the employee is under an obligation not to construe the rules in a way designed to defeat the efficiency of the employers business. In Secretary of State for Employment Vs Aslef (No.2 1972), railway workers worked strictly in accordance with British Rails rulebook and caused considerable delays in the operation of trains. The court held that while the employees were free to withdraw their good will they must not willfully obstruct the employer’s business. 3. Duty of Obedience In the absence of express provisions an employee is required to carry out all reasonable and law orders of employer. In Pepper Vs Webb (1969) A Gardner who behaved in a surly manner, showed disinterest in the garden, refused to perform certain tasks in the garden and was insolent to his employer was held to have been justifiably dismissed.
