Employment expressions: It is important to know and understand the meaning of “terms and conditions of employment“.  There is confusion and whether employment terms include policies and how they differ from procedures and work practices and even codes of good practice.  This is an attempt to create some certainty but further research is required.

See also: Contractual terms: Avoid confusion over conditions

Debts arising from contractual terms become due and payable when they arise and prescription begins then, unless clearly intended otherwise by the parties.

Per Cameron J:

“[156] The qualification I have to this statement relates to equating a “time for performance” stipulated in a contract with a “demand [that] has been made as agreed”, and then characterising this demand as “a condition precedent to claimability”. I would prefer to stay with the recognised distinction in our law between contractual terms or obligations, time clauses, demands to place defaulting contracting parties in mora debitoris (default on the part of the debtor), and suspensive conditions.

From my perspective, the failure to distinguish between these different concepts creates uncertainty and also explains why the conclusion that the debt here has not prescribed is not sustainable.

[157] Our law recognises that the terms of the contract – express, tacit or implied – determine the obligations parties to a contract owe to each other. To be distinguished from contractual terms or obligations are conditions:

‘[T]he word ‘condition’ in relation to a contract, is sometimes used in a wide sense as meaning a provision of the contract, i.e. an accepted stipulation, as for example in the phrase ‘conditions of sale’.  In this sense the word includes ordinary arrangements as to time and manner of delivery and of payment of the purchase price, etc – in other words the so called accidentalia of the contract.

In the sense of a true suspensive or resolutive condition, however, the word has a much more limited meaning, viz. of a qualification which renders the operation and consequences of the whole contract dependent upon an uncertain future event . . . . Where the qualification defers the operation of the contract, the condition is suspensive, and where it provides for dissolution of the contract after interim operation, the condition is resolutive’.”

Seven decision-making levels

By now it should be well known that in employment law and labour relations planning and decisions are made at seven distinct levels in any enterprise.  See EEA9.   Ideally employees will enter the enterprise near the bottom and work their way up the ladder.  In the process various skills have to be acquired to enable them to take more complex decisions.  This results in value-exchange where senior employees taking more complex decisions receive more pay.  The top three levels of decision-making involve:

#7   setting enterprise purposes or goals (why);

#6   formulating strategic objectives to implement the purpose (what); and

#5   devising tactics to give effect to strategies (how).

Work practices

These need to be distinguished from terms of employment.  There have been a number of judgments on this topic.  See for example Work practice: Striking to change.  It is important because  there is a managerial prerogative to change work practices.  But not terms of employment.

 

Codes

code of good practice can be regarded as a set of written rules that explains how persons working in a particular profession or environment should behave.  For an example of such a code see Internal equity external parity: Policies and practices.  Do codes or policies assume contractual effect?  In Denel (Pty) Ltd v Vorster (13/2003) [2004] ZASCA 4 (5 March 2004) a disciplinary code was expressly incorporated in the terms and conditions of employment of each employee.  Nugent JA in the SCA held that the terms of the code then assumed binding contractual effect.  So that judgment suggests that unless policies, codes and procedures are expressly incorporated in the terms of employment , they do not have any contractual or binding legal effect.

Policies

A policy is a formal statement of a principle or rule that should be followed by all employees.  Each policy should address an important issue concerning the achievement of the overall purpose of the enterprise.  So a policy on health and safety in the workplace addresses the relevance of safety to the enterprise and to whom the principles apply.  The policy must link with the strategic objectives (such as improved service quality, reduced costs and fewer injuries).    Related policies and procedures underpin the process to ensure all enterprise resources contribute to the strategic objectives and tactical direction.

See also Guiding principles: application of policies in general

Guiding principles: policy regarded as a decisive factor in deciding the application and so in slavishly following it the merits were not considered.

Procedures

A procedure informs employees how to carry out or implement a policy.  Procedures usually contain written instructions in logical numbered steps.