Department of Mercantile Law

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The close connection test for vicarious liability
(Juta Law Publishing, 2007-01) Calitz, Karin
The requirements for the vicarious liability of an employer are threefold : an employment relationship, the commission of a delict, and that the delict must have been committed within the scope (sometimes course and scope) of employment. The last requirement ensures that there is a measure of fairness towards the employer who is held strictly liable. Hierdie artikel ondersoek die toets vir middellike aanspreeklikheid wat deur die Konstitusionele Hof in NK v Minister of Safety and Security ontwikkel is vir gevalle van opsetlike wangedrag deur 'n werknemer. In hierdie saak het drie polisiemanne 'n jong vrou verkrag terwyl hulle aan diens was. In die verlede was hierdie tipe gevalle problematies omdat sodanige gedrag as buite die diensbestek beskou is. Die hof hang egter nie 'n eng siening van diensbestek aan nie en steun op die noue verbandtoets (close connection test) wat onlangs in verskeie ander gemeenregtelike jurisdiksies toegepas is. Dis 'n objektiewe toets wat 'n noue verband tussen die gedrag van die werknemer en sy pligte vereis. Die Konstitusionele Hof het egter in hierdie saak die noue verbandtoets ontwikkel om konstitusionele norme te reflekteer. In die NK saak is bevind dat die werkgewer aanspreeklik is omdat daar 'n noue verband tussen die dade van die polisiemanne en hulle konstitusionele pligte bestaan. Die probleem met hierdie toets is dat die hof 'n algemene toets vir middellike aanspreeklikheid by opsetlike wangedrag neergelê het, maar nie 'n aanduiding gegee het oor hoe dit aangewend moet word in gevalle waar konstitusionele regte en pligte minder prominent is nie. Daar word aan die hand gedoen dat die opsetlike verbreking van 'n plig teenoor 'n sekere persoon of persone die noue verband tussen plig en daad daar sal stel. Om die noue verbandtoets deur 'n konstitusionele bril te beskou is verwarrend en bring nie noodwendig meer gewensde resultate mee nie.
A comparative perspective on the application of domestic labour legislation in international employment disputes
(Juta Law Publishing, 2013-01) Calitz, Karin; Garbers, Christoph
An analysis of different methods of dealing with the application of domestic legislation in international employment disputes in the chosen jurisdictions indicates that two broad approaches are followed, namely a private international law approach and an interpretive approach. It is recommended that South Africa should follow a combination of these approaches, as is done in Britain, instead of the strict interpretive approach followed currently. This would entail that in deciding whether legislation is applicable, the court should take connecting factors into consideration. More specifically, it is further recommended that the definition of "employee" in the Code of Good Practice: Who is an Employee? be amended to provide guidelines to the Labour Court and the CCMA regarding connecting factors.
The expediency of including claims based on disablement caused by sexual harassment in South Africas system of workers compensation
(Juta Law, 2016-12) Malherbe, Kitty; Calitz, Karin
This article investigates whether it is feasible to include compensation for disablement arising from a psychological disorder caused by sexual harassment in the South African workers’ compensation system. The authors argue that in order to protect the constitutional rights of victims of sexual harassment, it is desirable to provide a remedy to victims that is not dependent on proving that the employer is at fault and which is further not dependent on the employer’s financial position. Such a remedy is provided by the Compensation for Injuries and Diseases Act (“COIDA”) for employees who suffer an injury or disease arising out of and in the course of their employment. In the light of the high incidence of sexual harassment in the workplace, it is argued that there is a causal connection between the disablement caused by sexual harassment and the workplace and that the disablement could thus be seen as arising out of and in the course of the employee’s employment. Legal comparison indicates that a number of countries which allow claims based on psychological disablement as a result of sexual harassment in terms of workers’ compensation schemes, do not bar victims from also claiming damages caused by unfair discrimination from their employers. The authors’ recommendations entail that psychological disablement caused by sexual harassment should be treated by South African courts as a disease arising out of employment in terms of the COIDA; that section 35 of COIDA should be amended so that employees may retain claims against their employers based on unfair discrimination and that psychological diseases should be included in schedule 3 of COIDA.
The liability of employers for the harassment of employees by non-employees
(Juta Law Publishing, 2009-03) Calitz, Karin
Employees who suffer work-related harassment by non-employees in circumstances in which the employer does not protect them can neither institute action against their employer on the basis of vicarious liability, nor in terms of section 60 of the Employment Equity Act (EEA). Section 60 of the EEA renders the employer liable for certain acts of his employees. In Piliso v Old Mutual Life Assurance Co (2007) 28 ILJ 897 (LC) the Labour Court held such a (passive) employer liable on the basis of the infringement of the employee-victim's constitutional right to fair labour practices. In the light of criticism against direct reliance on constitutional rights where the right is embodied in other legislation, a more appropriate approach would be to hold the employer directly liable for discriminating against an employee in an employment practice in terms of section 6(1) of the EEA. An examination of foreign jurisdictions (the United States, the United Kingdom and Australia), reveals that employers who do not take action to protect victim-employees against work-related harassment by non-employees, are held directly liable in terms of anti-discrimination legislation. This article proposes that the same approach be adopted in the South African context.
May an employer dismiss an employee if the disciplinary chair imposed a lesser sanction? South African Revenue Service v Commission for Conciliation Mediation and Arbitration 2017 38 ILJ 97 (CC)
(Juta Law Publishing, 2019) Calitz, Karin
In South African Revenue Services v Commission for Conciliation, Mediation & Arbitration, Kruger, the employee, called his superior a “kaffir” on more than one occasion. The employer unilaterally dismissed the employee after the chairperson of the disciplinary hearing had imposed a lesser sanction. In doing so, the employer disregarded the collective agreement which did not make provision for the sanction of the disciplinary chair to be substituted. The employee claimed that his dismissal was invalid and therefore unfair. The Commission for Conciliation Mediation and Arbitration (“CCMA”), Labour Court and Labour Appeal Court (“LAC”) agreed. However, in the Constitutional Court (“CC”) the employer no longer argued that it was entitled to substitute the sanction in the light of the breach in the trust relationship, but only alleged that reinstatement was a remedy that no reasonable decision-maker would order. The CC agreed and held that the dismissal was substantively fair but procedurally unfair. The CC did not answer questions of lawfulness, fairness and invalidity, but in Steenkamp v Edcon the CC held that employees claiming remedies for unfair dismissal in terms of the Labour Relations Act 66 of 1995 (“LRA”) should not rely on invalidity. However, employees still have the right to common-law remedies based on their employment contract. Considering the importance of collective agreements, negotiated disciplinary codes, certainty and consistency, and to avoid employers exercising unfettered power over employees, state organs should apply for a review of an unsatisfactory sanction by the disciplinary chairperson in terms of section 158(1)(h) of the LRA. Private employers could negotiate a disciplinary code which allows both the employer and employee to appeal against the decision of the disciplinary chair which should make provision that a more severe sanction can be imposed on appeal.
The precarious employment position of ministers of religion : servants of God but not of the church
(Juta Law Publishing, 2017) Calitz, Karin
South African courts have in recent years progressively extended protection against unfair dismissal to categories of persons not previously regarded as employees. Courts interpreted labour legislation in light of the Constitution to include persons with illegal and invalid contracts, as well as persons who were described as independent contractors. Despite this development, the LAC in Church of the Universal Kingdom of God v Myeni held that the minister of religion could not be regarded as an employee because in the court’s view the parties had no intention to create legal relations. This judgment can be criticised on the ground that the court regarded the form of the agreement, which described the service of the minister of religion as voluntary, as the only determining factor and did not take the de facto relationship between the parties, which pointed to an employment relationship, into account. The LAC insisted that there must be a contract for the minister of religion to be regarded as an employee, while the Constitution and the LRA do not require a contract. Reliance on English jurisprudence by the LAC is further not appropriate because of certain peculiarities regarding the history of churches in England which are not shared by South African churches. The LAC did not take the unequal bargaining position of ministers of religion nor the relevant constitutional rights of the parties into account. The spiritual dimension of the minister’s service seems to be decisive in the court’s decision, although the misconduct was not a spiritual matter falling within the domain of the church’s own decision-making powers. This matter should have been dealt with by civil courts since there was no danger of doctrinal entanglement.
Restraint of trade agreements in employment contracts : time for Pacta Sunt Servanda to bow out?
(Juta Law Publishing, 2011-01) Calitz, Karin
Clauses in restraint of trade in employment contracts still lag behind in respect of protection afforded to employees. There is no legislation regulating these agreements and the unequal bargaining position of employees has not been taken sufficiently into consideration in judgments establishing the reasonableness of the restraint. The rules of the common law, now generally regarded as inadequate to regulate the employment relationship, are left intact to regulate without interference a very important part of the employment contract. In the light of the constitutional right to dignity, freedom to choose a trade and the right to fair labour practices, which could all be potentially limited by a restraint, the common law rules regulating restraint agreements in employment contracts should be amended to reflect these values. To attain this, the courts could develop the common law applicable to restraint agreements in terms of section 8(3) of the Constitution. This would entail testing the common law rules pertaining to reasonableness of the restraint directly against section 22 of the Constitution. Alternatively, in the light of the criticism of the Constitutional Court in Barkhuizen v Napier against this approach, the courts could develop the common law through the prism of public policy in terms of section 39(2) to reflect the values of the Constitution without directly testing the law of contract against a specific constitutional right. Should courts develop the common law test for reasonableness in terms of section 39(2), freedom to trade should - in the light of the value of freedom to work and the unequal bargaining position of employees - enjoy primacy instead of pacta sunt servanda. The effect of developing the common law would then be that the onus to prove that the restraint is reasonable would shift from the employee to the employer.
Sexual harassment : why do victims so often resign? E v Ikwezi Municipality 2016 37 ILJ 1799 (ECG)
(ASSAf, 2019-01-28) Calitz, Karin
This article endeavours to find answers to the question of why the victims of sexual harassment often resign after the harassment, while the perpetrator continues working, and suggests how some of the human cost to victims of sexual harassment can be prevented. E v Ikwezi Municipality provides a classic example of how the failure of the employer to protect the victim exacerbated her suffering from Post-Traumatic Stress Disorder (PTSD), eventually leaving her with no option but to resign. Had the employer conducted a risk analysis, it could have prevented the sexual harassment by alerting employees to the content of the Code of Good Practice on the Handling of Sexual Harassment in the Workplace. Further, had the employer been aware that it was responsible for the victim's psychological safety also after the disciplinary hearing, it could have taken measures to ensure her safety. The unsatisfactory sanction (the harasser was not dismissed) could lastly have been referred to the Labour Court for review. Unfortunately, the wrong legal advice and an incompetent chairperson led to the municipality’s failing adequately to protect the victim. This caused (and aggravated) the symptoms of PTSD, which forced the victim to resign.
Should teachers have the right to strike? The expedience of declaring the education sector an essential service
(Juta Law Publishing, 2013-01) Calitz, Karin; Conradie, Riana
Concern about the impact of teachers' strikes on the right of children to basic education has led to calls that education should be designated an essential service. The authors argue that this is not feasible as it is not likely that consensus will be reached by the social partners at the National Economic Development and Labour Council ("NEDLAC"). In the event that legislation to this effect is adopted, the limitation on teachers' right to strike will be open to constitutional challenge. In the light of the International Labour Organisation ("ILO")'s narrow definition of essential service and the explicit exclusion of teaching from essential services, such a limitation will in all probability be found to be unconstitutional. Prohibitions on teachers to strike in British Columbia and Germany indicate that teachers do not desist from striking and that the courts are increasingly coming to the aid of teachers who are prohibited from striking. Proposals to minimise the impact of strikes on pupils include public pressure (inter alia by way of public hearings scheduled by the Portfolio Committees on Education) to persuade SADTU to conclude a collective bargaining agreement to limit strikes by teachers. It is proposed that this collective agreement should be to the effect that teachers should neither strike during the four weeks leading up to the exams nor during the period while pupils are writing their exams. It is proposed that Matric teachers should not strike at all. An amendment to section 20(1)(a) of the South African Schools Act 84 of 1996 would give governing bodies of schools the power to negotiate with teachers at a particular school on measures to limit the impact of an impending strike on pupils. Proposed amendments to the LRA include a second round of conciliation by the Director of the CCMA, should it be in a public interest to prevent a strike. This measure could be instrumental in limiting strikes in the education sector.
Die uitsluiting van middellike aanspreeklikheid van werkgewers in vrywaringsklousules
(LitNet, 2021) Calitz, Karin
In hierdie artikel word aan die hand gedoen dat vrywaringsklousules wat middellike aanspreeklikheid van ’n werkgewer uitsluit, in sekere omstandighede as teen die openbare beleid gesien kan word. Sedert 1999 het buitelandse en Suid-Afrikaanse howe beslis dat die beleidsoorwegings van veral afskrikking van die werkgewer en ’n billike remedie vir die slagoffer onderliggend is aan die oplegging van middellike aanspreeklikheid. In die geval van opsetlike onregmatige gedrag van werknemers kan werkgewers ook aanspreeklik wees indien daar ’n voldoende noue verband tussen die onregmatige handeling en die pligte van die werknemer was. Wanneer middellike aanspreeklikheid in ’n vrywaringsklousule uitgesluit word, is die vraag of beginsels van openbare beleid wat in die deliktereg aanwending vind, ook die reëls van die kontraktereg wat bepaal wanneer ’n vrywaringsklousule gehandhaaf behoort te word, kan informeer. ’n Ontleding van uitsprake van die Konstitusionele Hof toon dat openbare beleid wat by die kontraktereg berus op billikheid, geregtigheid en redelikheid, ’n noue ooreenkoms toon met konsepte onderliggend aan openbare beleid in die deliktereg. In die lig hiervan is dit aangewese dat howe gemeenregtelike kontraktuele beginsels met betrekking tot handhawing van vrywaringsklousules in die lig van die Grondwet ontwikkel om beleidsoorwegings onderliggend aan middellike aanspreeklikheid in te sluit. Die verhoogde risiko wat ’n werkgewer in ’n gemeenskap skep met die bedryf van ’n onderneming behoort by die ontwikkeling van sodanige reëls in ag geneem te word. Daar word verder aan die hand gedoen dat howe gevolg moet gee aan die gemeenregtelike reël dat vrywaringsklousules eng geïnterpreteer moet word. Wyd bewoorde klousules wat middellike aanspreeklikheid vir opsetlike gedrag slegs by implikasie uitsluit, behoort ook met omsigtigheid hanteer te word deur die ware bedoeling van partye by kontraksluiting vas te stel eerder as om ’n streng pacta sunt servanda-benadering te volg.
Vicarious liability of employers : reconsidering risk as the basis for liability
(Juta Law, 2005-02) Calitz, Karin
Vicarious liability is a doctrine of liability without fault in terms of which one person is held liable for the unlawful acts of another. In the context of the employment relationship, the employer can be held liable for the unlawful acts of an employee. Different reasons have been advanced to justify the existence of this doctrine which runs counter to the general principle of no liability without fault. Fleming has stated that the modern doctrine of vicarious liability cannot parade as a deduction from legalistic premises but should be recognised as being based on a combination of policy considerations, the most important of which is 'the belief that a person who employs others to advance his own economic interest should in fairness be placed under a corresponding liability for losses incurred in the course of the enterprise''.

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