Discipline and Dismissal

A problem that often arises in the workplace is when one party to a contract breaches the contract of employment by contravening a section or sections of the contract, or fails to comply with one or more provisions of the contract. Firstly, it must be understood that a Contract is an agreement between two or more people. In our case it is an agreement between the employer party on the one hand and the employee party on the other hand.

Should one of the parties to the agreement fail to act in terms of the agreement, or indeed act in contravention of any of the terms of the agreement, without the agreement of the other party, then that party is said to be "in breach of contract." In other words, the party in breach has broken the terms of the agreement. In some cases, it might be construed that the party in breach has in fact repudiated the entire contract. A contract of employment can be breached in many different ways by either party.


For example, a contract stipulates that a notice period of 1 month is required by either party wishing to terminate the contract. The employee walks out on 24 hours notice – that woulod place the employee in breach. If a contract stipulates that salaries will be paid on a certain date, and the employer fails to pay on that date without valid reason, then the employer may be in breach of contract.

Basically, a material breach of any condition or term in the contract may place a party in breach of that contract.Generally, any infringement by one party to the contract on the contractual rights of the other party to the contract, may constitute a breach of contract.This may be one of the reasons why employers seem so reluctant to enter into a written contract of employment with employees. Based on our experience, this reluctance is not the exception – it is very common for employers to simply not enter into a written contract of employment.

One of the reasons may be that the employer is under the incorrect impression that when the terms and conditions of employment are reduced to writing, then the employer is "tied down." Whilst that may be true, and it is also true that labour legislation (apart from section 29 of the BCEA) makes no provision compelling an employer to enter into a written contract of employment, the absence of such a contract does not make the employer any less "tied down" that he would be if there were such a contract in place.


In fact, it is our view that the absence of a formal contract of employment places the employer in a far more dangerous position that if there were such a contract. Just for a beginning, no contract basically means that the employee is not really bound by any terms and conditions of employment. Within certain parameters, the employee is almost "his own boss".

For example, what would an employer's reaction be to an accountant who has been employed for 5 years, with no written contract of employment, walks out on 24 hours notice on 27th February – the day before financial year end ?

Think about that until next week.

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