Lecture Three A: Integrate Legal Practice in Industrial

Relation
• Learning objectives:
• By the end of this lesson, a trainee will be able to;
Describe the components of employment law
Describe the elements and kinds of contracts
Mention the terms and conditions of employment contracts.
Describe the equal opportunities for employment
Describe the emancipation of woman
 3.0 Comprehend legal aspects of industrial Act
3.1 Employment law:
Employment and Labor Relations Act, 2004,
This Act regulates the organizational rights of trade unions and
promotes and facilitates collective bargaining at the workplace and at
sectoral level.
It also deals with strikes and lockouts, workplace forums and alternative
dispute resolution.
It defines your rights and obligations as workers, union members and
employers in the workplace.
3.1 Framework for Employment law
 3.1 Framework for Employment law cont…
Statute law
It is a written law formed through Acts of Parliament. Example. Employment and
Labour Relations Act, 2004, The Occupational Health and Safety Act, 2003.
Case law
It is the stock of cases which have already been decided upon in the courts of law or
labour tribunals.
Case law is the set of existing rulings which made new interpretations of law and,
therefore, can be cited as precedent.
In most countries, including most European countries, the term is applied to any set
of rulings on law which is guided by previous rulings, for example, previous
decisions of a government agency that is, precedential case law can arise from either
a judicial ruling or a ruling of an adjudication within an executive branch agency.
Trials and hearings that do not result in written decisions of a court of record do not
create precedent for future court decisions.
Common law
It is unwritten law that originates from acceptable custom and practice. For example,
employment contracts, law of torts.
 3.1.1 Law of Tort
It involves legal obligations which a person or group of people have to do to others.
Tort law deals with situations where a person's behaviour has unfairly caused someone
else to suffer loss or harm.
A tort is not necessarily an illegal act but causes harm.
The law allows anyone who is harmed to recover their loss.
Tort law is different from criminal law, which deals with situations where a person's
actions cause harm to society in general.
 A claim in tort may be brought by anyone who has suffered loss after suing a civil
lawsuit.
Included in law of tort
Law of Torts may include among other matters as;
Negligence
Trespass
Nuisance
Defamation and etc,
 3.1.2 Law of Contract
It is especially related to business people made by private agreements.
A contract is an agreement, but not every agreement is a contract.
A contract is basically an agreement between two parties creating a legal
obligation for both of them to perform specific acts.
Each party is legally bound to perform the specified duties such as rendering a
payment or delivering goods.
In order for the contract to be enforceable, each party must exchange something
of value called (“consideration”).
A contract may be used for various transactions, including the sale of land or
goods, or the provision of services.
They may be either oral or written though courts prefer that agreements be put in
writing.
3.1.2 Law of Contract cont…
Contract agreement factors.
To make an agreement a contract the following factors must stand firm;
Intention to have legal consequences
Made between at least two people
Made between suitable people who have complete freedom and maturity
Entered freely
Clearly stated
Could be implemented immediately
Parties must be of one mind, i.e., no any kind of misunderstanding
 3.1.2 Law of Contract cont…
Contract elements:
But for an agreement to be legally valid and enforceable, several elements must be fulfilled:
Legality-what laws apply?
Legality establishes the set of laws and regulations that apply to a contract, which varies by state
and country.
Capacity-can all parties legally enter an agreement?
It is a person’s ability to satisfy the elements required to enter a binding contract. Common
capacity rules relate to age, soundness of mind, consciousness, language, mental disabilities,
duress, undue influence, and intoxication (or being under the influence of some substance).
Offer-what’s the proposal?
A contract starts because somebody wants something, and there’s someone who can deliver it. At
both ends of the offer, there are duties and responsibilities to be fulfilled. There must also be an
exchange of value, such as money, assets, or some desired action.
Consideration-how does each party benefit?
It goes without saying that there can be no contract if there’s nothing in it for each party.
Legal consideration allows all who read the contract to see the benefits each party receives.
Benefits can be money, valuable items, services, assets, or even protection.
 3.1.2 Law of Contract cont…
Intention-are the parties interested in working together?
Also known as mutuality, intention simply means that all parties wish to do
business together.
For a contract to be legally binding, all parties named must provide consent.
Certainty-is the contract clear and understandable?
Contracts should explicitly state the essential (and optional) terms and conditions,
as well as the key parties involved.
These commitments form the backbone of the agreement, and the clearer they are,
the less likely an incidental breach of contract can occur.
Acceptance-do all parties agree?
Commonly, acceptance is shown by all parties adding their signatures to the
document.
But in situations when a contract is verbal, acceptance can be shown by one or
more of the signees fulfilling their contractual obligations.
 3.1.2 Law of Contract cont…
What are the kinds of contracts?
Contracts can be basically classified: Valid, Void, Voidable and unenforceable contracts.
These contracts are classified based on the commodity, terms, legal or illegal etc.
conditions. They are explained here briefly.
Valid Contracts-if a contract has all the required elements, it is valid and enforceable in
a court of law.
A valid contract creates legal obligations between contractual parties. It gives a party
cause to compel another party to do or not do something.
Parties are legally responsible for performance in the contract. If one party commits
breach of contract, the other can take the case to court.
Void Contracts- a void contract is not a contract and has no effect in a court of law and
cannot be enforced in a court of law.
Mostly, a void contract will be missing one or all the essential elements needed for a
valid contract.
Neither party needs to take action to terminate it, since it was never a contract to begin
with.
For example, an agreement between drug dealers and buyers.
 3.1.2 Law of Contract cont…
Voidable Contracts- it is a contract which may appear to be valid and has all of the
necessary elements to be enforceable but has some type of flaw which could cause one
or both of the parties to void the contract.
The contract is legally binding but could become void. If there is an injured party
involved, the injured party or the defrauded must take action, otherwise the contract is
considered valid.
Unenforceable Contracts-it is a contract which cannot be enforced in a court of law.
This could happen because the terms of the contract are ambiguous, if one party has a
voidable contract or if the Statute of Limitations has expired.
Reasons why a contract may be unenforceable;
The statute of limitations requires that lawsuits be filed within a certain period of time
following a breach.
Due to Doctrine of Laches. This principal state that a court has determined a contract is
unenforceable due to needless delay or neglect in filing a claim even though the statute
of limitations may not have expired.
 3.1.3 Employment Conditions
These are expressed in the employment contract between the employer and the
employee. In it there are explicit terms and implicit terms.
Employment contract
There is a difference between ‘contract of service’ and ‘contract for service’.
Contract of service
An agreement between employee made with the employer to have a
continuous service relationship for a specified time.
The employee gets legal rights for example not to be unfairly dismissed.
Contract for service
It is an agreement made between an independent contractor to perform some
specified job.
Once this job is done successfully to completion, the contract is over.
 3.1.4 Terms of Employment Contract
These are the obligations of both the employer and employee derived in the
common law.
The employer obligations are:
to pay wages or salaries,
to provide work to the employee,
to take sensible care of the employee,
to protect (cover) the employee for liabilities and expenses incurred in due
course of employment,
to treat the employee with courtesy.
The employee obligations are:
Be physically present personally at the workplace and serve,
Be sensibly careful in performing duties,
Obey reasonable instructions from the employer, and
Act in good faith towards the employer.
 3.1.5 Explicit Terms of Employment Contract
There are three tests to determine whether a contract of employment exists or not.
Control test: If a person is told what to do and how, where and when to do, then it is
employment contract.
Organization test: If the individual is very much integrated in the organization, then
there is contract of employment.
Multiple test: The factors of control, organization and circumstances are considered
together. Salary payment, responsibility for insurance, tax payment. Otherwise it is a
contract for service.
Following are the visible features of employment contract.
Letter of employment,
Job description,
Written conditions of employment,
Organisation’s rule book,
Collective agreements between employer and employee,
Subsequent confirmation and promotion.
 3.1.6 Note that Explicit Terms also Include
The employee should be given a written statement of the main terms and
conditions of the employment within one week after commencing employment.
The information such as;
job title,
salary scale or wage rate,
payment intervals,
normal working hours per day,
holiday entitlement,
sick pay and pension scheme arrangements,
terms of notice,
rules relating to the job,
grievance and
disciplinary procedures.
 3.1.7 Implied Terms Employment Contract
They are put in overall qualification statements such as ‘The list is not all
exhaustive’ for the rules, offences etc.
For example, in the case of ‘gross misconduct’, actions that constitute gross
misconduct are many and cannot all be written.
In disciplinary matters, every case must be judged on its own merit.
Other implied terms come from the common law whereby the employee is not
supposed to disclose company secrets to a competitor.
 3.1.8 Variation of Terms of Employment Contract
The employee has very little or no chance of varying employment terms.
The employer can change them as long as a notice is given first.
The employee has the following options when changes are made ‘in due notice’.
agree to the changes,
ignore the changes and risk being taken through disciplinary procedures,
operate the grievance procedure,
participate in industrial action such as strikes,
leave and claim constructive dismissal,
claim for breach of contract.
 3.1.9 Equal Opportunities for Employment
This is the concept of giving individuals equal chances to access to employment, training,
promotion and other services related to employment, in the absence of unfair discrimination.
An example of unfair discrimination can be that of a manager selecting a less qualified
worker who belongs to his social group and leaves a well qualified one who does not come
from his social group.
The employment and Labour Relations Act (2004) gives guidelines in this respect.
There are three type of discriminations
Sex discrimination
The law against sex discrimination has the aim of eliminating unfair discrimination against
individuals on the grounds of their sex or marital status.
Sexism, also known as gender discrimination or sex discrimination, is defined as prejudice
or discrimination based on sex or gender; or conditions or attitudes that foster stereotypes of
social roles based on sex.
Sexist attitudes are frequently based on beliefs in traditional stereotypes of gender roles.
Sexism is not just a matter of individual attitudes but is built into many societal institutions.
The term sexism is most often used in relation to discrimination against women.
3.1.9 Equal Opportunities for Employment cont…
Religious discrimination
The law against religious discrimination has the aim of eliminating unfair discrimination
against individuals on the grounds of their religion.
Religious discrimination is valuing or treating a person or group differently because of
what they do or do not believe.
Specifically, it is when adherents of different religions (or denominations) are treated
unequally, either before the law or in institutional settings such as employment.
Disabled discrimination
There are three forms of discrimination against disabled persons.
Direct discrimination. The manager treats a disabled unfavourably.
The employer purposely fails to make adjustments to work conditions and makes a
disabled greatly disadvantaged.
Discrimination by victimisation.
For example a disabled gives evidence against a person but looses the case on unfair
grounds.
 3.1.10 Equal Opportunities for All
An organization can give equal opportunities for all for example,
Promoting women in leadership position when qualified ones show up.
Educating women whenever they qualify.
Removing the assumption that men are career minded and women are not.
 3.1.11 Emancipation of Woman
The aim is to encourage women to hold key leadership and managerial positions
which were in the past dominated by men, in all walks of life.
Feminism is a collection of movements and ideologies aimed at defining,
establishing, and defending equal political, economic, and social rights for
women.
In addition, feminism seeks to establish equal opportunities for women in
education and employment.
A feminist is "an advocate or supporter of the rights and equality of women ”.
End

Thank you for listening