All employment relationships, regardless of whether in the private or public sector, are subject to primary labour statutes setting out the basic rights and duties of employer and employee. These statutes include the Labour Relations Act 1995 (“LRA”), the Basic Conditions of Employment Act 1997 (“BCEA”), the Occupational Health & Safety Act 1993, the Compensation for Occupational Injuries and Diseases Act 1993 and the Employment Equity Act, 1998.
Section 197 (2) of the Constitution of the Republic of South Africa, 1996 further states that “the terms and conditions of employment in the public service must be regulated by national legislation.” In keeping with this constitutional directive the employment of state employees is regulated by the Public Service Act 1994 (“PSA”), which in turn resulted in the establishment of the Public Service Co-ordinating Bargaining Council. Terms and conditions of employment applicable to all state employees across the board are collectively negotiated and agreed within this structure. Terms and conditions of employment applicable to certain sectors within government are negotiated and agreed in one of three (3) sector-specific sectoral bargaining councils falling under the Public Service Co-ordinating Bargaining Council. These sectoral councils are the Public Health and Welfare Sectoral Bargaining Council (now termed Public Health and Social Development Sectoral Bargaining Council), the General Public Services Sectoral Bargaining Council and the Safety and Security Sectoral Bargaining Council. The Public Health and Social Development Sectoral Bargaining Council covers employees of the Department of Health and the Department of Social Development at national and provincial level and consists of representatives from relevant national and provincial government departments and representatives from the health care sector.
In addition to statutes and collective agreements, employment relationships within the public and private sectors are also subject to common law and contract.
In summary, when entering into employment with the State, medical personnel must be mindful of their rights and obligations under the Constitution, labour statutes, collective agreements concluded in the Public Service Co-ordinating Bargaining Council and the Public Health and Social Development Sectoral Bargaining Council, their specific employment contracts and the common law.
The medical profession is highly regulated and those working in the sector are also subject to regulations imposed by professional bodies, the Health Professions Act, 1974 and the Nursing Act, 1978.
General commentary on the standard employment contracts for State-employed medical practitioners:-
- As explained above, the employment contract must be read in conjunction with the generally applicable labour statutes, e.g. the LRA and BCEA; the PSA and accompanying regulations; and relevant collective agreements concluded under the auspices of the Public Services Co-Ordinating Bargaining Council and the Public Health and Social Development Sectoral Bargaining Council. Likewise, disputes regarding the employment relationship must be referred to the Public Services Co-Ordinating Bargaining Council or the Public Health and Social Development Sectoral Bargaining Council.
- Vicarious liability is a common law principle of strict liability of one person for the negligent act (“delict”) of another. Employers may be held indirectly or vicariously liable for the delict of their employees subject to the requirements that:
(a) an employer / employee relationship exists;
(b) that a delict took place; and
(c) that the employee acted within the scope of his/her employment.
An employer can insure against damages or losses it may sustain by virtue of vicarious liability e.g. where a doctor commits a delict while treating a state patient within the course and scope of the doctor’s employment by the State. However, where that same doctor is acting outside the scope of his / her employment with the State e.g. treating patients privately, there is no vicarious liability and therefore no potential claim / event capable of being insured by the State. It is for this reason that medical personnel are required to invest in their own professional insurance for private work.
- Where an employee’s ability to render the services for which he/she is employed is dependent on external factors, such as the registration with a professional body, it is standard practice to include the maintenance of such registration as a material term of the continuing employment relationship. Failing to renew such required registration would constitute grounds to terminate the employment relationship on the basis of the employer’s operational requirements i.e. the employer requires the services of a doctor, but is precluded by law from continuing to employ the employee as a doctor due to the lapsed registration.
- While it is trite that the employee has a duty of good faith to his/her employer, it is common practice to include a general clause highlighting this to the employee in question. The employee’s corresponding right to fair labour practices is enshrined in section 23 of the Constitution.
- It is also common practice to include provisions aimed at controlling external employment or work. This is usually for the purposes of ensuring that the employee is capable and available to render the services required of him/her.
- Recent amendments to the LRA introduced a presumption of permanent employment in instances where employees are employed on limited duration contracts in excess of three (3) months. Excluded from the application of this presumption are employees earning in excess of R205 433.30 per annum or those employed for the purposes of being trained or gaining work experience in order to enter a job or profession. Notwithstanding the exclusion of this presumption in certain defined instances, an employee is not precluded from arguing that a reasonable expectation of permanent employment exists. The employee will bear the onus to prove the existence of such an expectation on the objective facts present in the employment relationship. If successful, the employer’s failure to offer permanent employment would constitute a dismissal.
- Employees earning in excess of R205 433.30 per annum are excluded from the limitations placed on working hours and overtime in terms of the BCEA. In addition these employees are not entitled to additional payment for hours worked in excess of the forty-five (45) ordinary hour statutory maximum or for Sunday pay, unless agreed with the employer. The employer is at liberty to agree working hours in excess of fifty-five (55) hours per week (employees earning less than R205 433.30 per annum may not be required to work more than forty-five (45) ordinary hours and ten (10) hours overtime per week) with these employees on condition that:-
(a) such agreement is not in contradiction of any Act governing occupational health and safety;
(b) has given due regard to the health and safety of employees and their family responsibilities; and
(c) has given due regard to the Code of Good Practice on the Regulation of Working Time.
- Notwithstanding a stipulated notice period in the contract of employment an employer cannot simply give the required notice to terminate the contract. In order for the termination of the contract i.e. dismissal to be fair the employer must have a fair reason for dismissing the employee and must have followed a fair process when doing so. Giving the requisite contractual notice does not in itself render the dismissal fair.
The LRA recognises three (3) grounds on which dismissal might be legitimate. These are:-
(1) The conduct of the employee (misconduct);
(2) The capacity of the employee (poor work performance or illness); or
(3) The operational requirements of the employer’s business (retrenchment).
Each recognised ground for dismissal has a corresponding recognised procedure to be followed prior to the contractual notice being given by the employer. The Code of Good Practice: Dismissal sets out some of the key aspects of dismissal related to conduct and capacity. This Code will be supplemented by any applicable collective agreements and / or the employer’s disciplinary code that may be applicable in the workplace.
When resigning the employee is only required to tender notice as specified in the employment contract and / or any applicable collective agreement. There is no obligation on the employee to give a reason for the resignation or to follow any other procedure.
- Traditionally unauthorised absence from work constitutes misconduct for which a written warning or dismissal may be an appropriate sanction, depending on the circumstances. A disciplinary hearing would ordinarily be held prior to any dismissal.
Section 17(3) of the PSA introduces a presumption that an employee has repudiated the employment contract i.e. absconded if he/she has been absent without authorization and/or contact for a period in excess of thirty (30) consecutive days. As a consequence of this Section 17(3) the employee is dismissed by operation of law without a prior hearing. In these circumstances the employee may approach the relevant executive authority to seek reinstatement after the fact if he/she is able to show good cause for the period of absence. If the executive authority fails to reinstate the employee this decision may be taken on review to the Labour Court.
This section of the PSA has been the subject of a number of reported cases and may well be challenged in the near future as a result of what some argue to be arbitrary discrimination between private and State employees.
- It is assumed that an employer will provide its employees with the necessary “tools of the trade” to enable them to perform their contractual functions. Where it is specifically included in the contract, the employee potentially has a claim for breach of contract should the employer fail to fulfil its obligations.
The employer in this instance has an internal grievance procedure and it is always advisable that internal procedures be exhausted prior to initiating external legal action.
Any sanctioning of an employee for failing to perform where the employer has failed to provide the necessary facilities and / or equipment would be unfair and, depending on the circumstances, could amount to an unfair labour practice, which would be referred to either the Public Services Co-ordination Bargaining Council or the Public Health and Social Development Sectoral Bargaining Council.
Justine Del Monte
Justine has a BLC and LLB (cum laude) from the University of Pretoria and was admitted as an attorney in 2002. She spent 6 years at Irish Ashman Attorneys where she rose to the level of partner before leaving to focus on her employment law practice. She joined Caveat Legal in 2015.