Article 18/2021

Labour Edge

Employment contracts are, by their nature, reciprocal contracts.  What does this principle of reciprocity entail?


In the case of reciprocal contracts, one party undertakes to perform specifically in exchange for a particular counter-performance by the other. In such cases, the principle of reciprocity applies: the first party is not entitled to demand counter-performance from the other party unless the first party has himself or herself performed, or is prepared to perform, as the case may be. Whether the obligations are reciprocal depends on the terms of the contract, actual or implied. In each instance, it is basically a question of interpretation whether the obligations are so closely linked that there exists the relation that one was undertaken specifically in return for the other (see ‘Contract’ Vol 9 LAWSA 3rd ed paragraph 379 – By ADJ van Rensburg, JG Lotz & TAR van Rhijn (updated by RD Sharrock)).

 

 

Is it always required to lead evidence about the destruction of the trust relationship in order to avoid a reinstatement order?

On what basis did the labour court recently hold, in De Kock v CCMA and Others (2019) 30 SALLR 177 (LC), that insubordination destroys the relationship of trust, mutual confidence and respect, and generally makes the continued employment relationship intolerable?

To what extent is a commissioner permitted to rely on the employer’s decision in determining whether or not a dismissal is fair?