Labour law Portfolio

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QUESTION 1

1.1

In the facts at hand, the structure of Moji’s business on the outset rather
paints him as an independent contractor rather than an employee of either of
the establishments. Looking at the facts at hand in the light of the approach
used in the SABC v Mckenzie case that is, the six-crucial differences between
a contract of employment (employee) and a contract of work (independent
contractor); and the dormant impression test one may devise a standing. Moji
generally appears to operate on the object of a contract of work that is the
performance of a certain specified work which is maintenance at O.R
International Airport and installation of security features at the Lobatse border
respectively, rather than rendering personal services as in the case of
contract of service.

Moreover, there is rather very little (if any) control over Moji except for the
demand from the O.R manager which may be regarded as an indirect
declaration that Moji is obliged to perform his/her duties personally as in the
case of a contract of service however his heedless delegation of the work to
Dineo may suggest otherwise though Mr Katsande’s reaction may suggest
also that perhaps Moji’s personal performance of the duties is to be expected.
Furthermore, Moji’s response to Mr Katsande further suggests that he is
rather subordinate to the will of the employer but rather notionally on a footing
of equality with the employer hence the lack of supervision or control and is
not obliged of obey any orders of the employer but is rather bound to produce
in terms of his contract of work.

The swift action of Moji in delegating the O.R duties in order to rush to
complete the duties at Lobatse suggests that he is bound to perform the
specified work within a fixed or reasonable time which is the case in terms of
independent contractors rather than employees. In addition, this may subtly

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 suggest that in the case of the Botswana authorities he is at the beck and call
of the employer to render services. Moji does not seem to depend on the
employer in the performance of the duties and the fact that he is doing work
for both establishments shows that he is allowed to work for another.

Taking into account the productive capacity test from Brassey’s article (The
Nature of Employment) that an independent contractor sells the job and the
employee sells his hands one may argue that Moji rather sells the job that is
either to build, install and maintain security features rather than the later.

Considering the above one may state that Moji is rather an independent
contractor in both establishments though there are subtle elements of an
employee. Mr Katsande’s demand is not legally viable for in the case of an
independent contractor he is not obliged to obey any orders of the employee
regarding the way the work is to be performed. The lack of or subtleness of
control or right of supervision in the facts at hand an in terms of independent
contractors in general Mr Katsande is not intitled to discipline Moji for ranting
however he may file a complaint of disrespect within the sphere of work
ethics.

1.2

The pay difference and fairness in question falls within the armpit of section
6(4) of the Employment Equity Act, 1998 which governs the issue of equal
pay under circumstances such as those of Finky and Hendriet. The two do the
same job/work as defined by the Employment Equity Regulations, 2014, for
their work is identical or interchangeable.

Hendriet and Finky literally have equal standing in almost all aspects such
that at face value one may argue that there is unfair discrimination in pay

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 since Finky earns more than Hendriet. However, this is not the case for these
facts fall within similar circumstances as those of Pioneer Foods (Pty) Ltd v
Workers Against Regression and Others whereby the concept of the
individual’s respective seniority or length of service applies.

The two individuals in question have one differentiating detail between them,
that is their length of service for Finky started working for Pretoria Zoo SA
LTD in 1994 then Hendriet in 2000 thus Finky has 5 years of seniority against
Hendriet. Regulation 7(a) of the Employment Equity Regulations, 2014
provides the defence available to employers against issues of equal pay thus
giving a justification of the claimed discrimination. Finky having served the
company longer reasonably deserves to earn more in terms of longer service
and seniority hence the difference in pay between her and Hendriet is
justified.

It was stated int Pioneer foods case that “there is nothing irrational or unfair
for an employer to distinguish between employees in pay based on length of
service”, for is a common practice which can be used to encourage
permanent employment and reward loyalty and long service. Therefore, on
that note one may state that their pay difference is justified hence fair.

QUESTION 2

2.1
Eva was dismissed for incapacity due to her failure to meet the agreed sales
target that is her inability to perform in accordance with the standard set by
the employer (through the agreed upon performance agreement) thus
translating to poor work performance. However, Eva’s incapacity was one of
supervening impossibility of performance (due to incarceration) rather than
poor work performance, for a change in her circumstances rendered her
incapable to perform her duties.

The dismissal of Eva is both substantively and procedurally unfair be it for

poor work performance or supervening impossibility of performance. The
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 dismissal of poor work performance’s substantive fairness is governed by
Item 9 of the Code of Good Practice. Inline with the given Item Eva did fail to
meet a performance standard, which she was aware of but however the
employer failed to afford her a fair opportunity to meet the required standard
for she was presented letter of dismissal with immediate effect for incapacity
for failure to meet agreed sales target.

Given the constraints brought about by Covid 19 regulations one may argue
that maintaining the prior agreed upon standard of performance became
rather unreasonable hence measuring Eva’s performance against such and
proceeding to dismiss her for failing to meet the standard made the dismissal
unfair both procedurally and substantively. The employer failed to make an
investigation to establish the reasons for the unsatisfactory performance
hence the dismissal of Eva for failure to meet the required sales target when
yet it was a matter of supervening impossibility of performance due to
incarceration which meant it was due reasons out of her control.

Incarceration, incapacitated Eva from performing her obligations under the

contract. An investigation would have unveiled to the employee that there was
supervening impossibility of performance due to incarceration thus bringing to
light that such does not automatically terminate the employment relationship.
The employer failed to consider the reasons for the incapacity, the extent of
the incapacity, whether it was permanent of temporary and any alternatives
hence the dismissal was procedurally unfair. Furthermore, the employee was
not afforded the opportunity to be heard but was rather arbitrarily dismissed
hence like the case the Samancor case the dismissal was procedurally unfair.

2.2

The five employers are: an employer who employs 50 or more employees; an

employer who employs fewer than 50 employees but whose annual turnover
in any given year exceeds a certain level; municipalities; organs of state and
an employer as a designated employer in terms of a collective agreement.

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QUESTION 3

3.1

Freedom of association is a fundamental right which enjoys constitutional

protection and is afforded to all including senior manager thus they may join
trade unions and will be protected against victimisation. The labour Relations
Act protects employees from being dismissed and victimised because of their
trade union activities. However, in the case of managerial employees’ conflicts
of interest may arise given that the senior manager is also an office- bearer or
representative of a trade union or staff association for, the senior manager
may possibly have access to the employer’s confidential information that may
influence collective bargaining between the employer and the union.

In facts at hand Melisa was promoted to the position of operational manager

while at the same time she had been elected trade union representative of
Trusted Employees Association two years prior hence as a result she is now
involved in the formulation of GG Logistics approach to various matters during
annual negotiations with the Trusted Employees Association. As discussed
above despite the possibility of conflict of interest she has the right of freedom
of association and is protected by the law, therefore GG logistics cannot for
her to terminate her membership with Trusted Employees Association due to
her new position for that will be an infringement upon her right to freedom of
association.

Moreover, she cannot be dismissed regarding such for such a dismissal will
register as an unfair dismissal. However, Melisa’s right can be limited by her
common law duty as an employee to act in good faith towards her employer a
good example of the two would be the Keshwar v SANCA case.

3.2

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 The deduction of trade union membership subscriptions from the salaries of
employees is one of the five types of organisational rights afforded by the
Labour Relations Act. The membership subscriptions are an important source
of income for trade unions though collecting them members may prove to be
difficult as the case for FF Trade Union in the facts at hand. Section 13 of the
Labour Relations Act affords registered unions the right to the deduction of
trade union membership subscriptions, when the members authorise the
employer in writing to deduct the given fees from his/her wages.

After the authorisation, the employer is to begin deducting the funds and
make the membership payments to the trade union on or before the 15 th day
of the next month. The authorisation maybe revoked by means of a written
notice by the employee to both the employer and union. Together with the
deducted payments the employer is to present the union, with a list of
members from whom deductions were made; the details of the amounts
deducted and paid to the union and the period which the deductions relate;
and copies of all the written notices of revocation of the authorisation by union
members.

Therefore, by the use this right the process of collection of membership fees
which can prove to be complication will become simplified and easier. Hence
by having CC acquire the right to the deduction of the subscription fees from
its member, FF Trade Union may simplify the collection process.

3.3

The right to engage in collective bargaining is afforded for, by section 23(5) of

the Constitution of the Republic of South Africa, 1996. However, the right
does not imply that there is an enforceable right to bargain collectively that is,
as stated in the South African National Defence Union v Minister of Defence &
Others , Minister Defence and Others v SA National Defence Union and
Others case that it does not impose a judicially enforceable obligation to
bargain on employers or employees.

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 On appeal of the aforementioned case to the Constitutional court it was noted
that establishing a judiciable duty to bargain, which would be enforceable by
either employers or unions outside of a legislative framework to regulate that
duty, would find courts being dragged into a variety of controversial, industrial
relations issues. The list of such issues would range from questions as to at
what level should bargaining take place, what level of union membership
would be required to give rise to the duty and the topics of bargaining and the
manner of such.

Therefore, a trade union like Remmogo Workers Association cannot approach

the Labour Court or another tribunal and seek an order to compel LL
Construction to bargain with it. However, despite there not being a recognised
duty to bargain in the Labour Relations Act, the act supports the role of
collective bargaining as a mechanism of regulating terms and conditions of
employment and resolves disputes.

It promotes and encourages collective bargaining through its provisions via

various channels. These channels include; providing effective protection of
the right of employees to form, join and participate in the activities of trade
unions; enabling trade unions to obtain organisational rights which enhance
their position on the workplace, thereby making it easier for the trade unions
to persuade or force an employer to bargain collectively with it; permitting
employees to strike in an attempt to force an employer to bargain collectively
with it; and regulating the legal status and enforceability of the product of
collective bargaining , namely collective agreements, thus making collective
bargaining more effective by extending its scope to sectors it did not cover
before like state employees.

QUESTION 4

4.1

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 The circumstances under which members of the Babereki Mmogo Association
need not comply with procedural requirements set by the Labour Relations
Act for the strike to be protected are laid down in section 64(3) of the same
act. The procedures need not be followed if the parties to the dispute are
members of a council and the dispute has been dealt with by that council in
accordance with its constitution.

The parties need not comply with the procedural requirements if they entered
into a collective agreement in terms of which they agree that certain dispute
resolution procedures must be followed prior to a strike or lock-out being
called. Moreover, if an employer embarks on a lockout that is not protected in
terms of the Labour Relations Act, it is employees will be able to strike in
response to that unprotected lock out without complying with section 64
procedures.

Furthermore, vice versa, if employees embark on an unprotected strike, an

employer will also be able to respond by means of an automatically protected
lockout, even though the employer has not complied with the provisions of
section 64. In addition, the parties need not comply with the procedural
requirements if an employer has unilaterally introduced changes to the terms
and conditions of the employment of employees that is the employer has done
so without the employees’ consent, or intends or proposes to do so.

4.2

The provisions of Section 68(5) of the Labour Relations Act highlights that the
participation of employees in an unprotected strike or taking part in conduct in
contemplation or furtherance of an unprotected strike may constitute a fair
reason for dismissal. However, in evaluating the fairness of such dismissals,
the provisions of the Code of Good Practice: Dismissals contained in the
Schedule 8 to the Labour Relations Act (code) must be complied with.

The requirements set by the Labour Relations Act which must be complied
with for the dismissal of the employees who are engaged in the strike to be
fair are divided into two fronts that is those of substantive fairness of the
dismissal and procedural fairness of the dismissal.

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In terms of substantive fairness, if there is deliberate failure by a party to
comply with the prescribed procedures set in section 64 of the Labour
Relations Act , the dismissal of the strikers might be held to be fair and the
same goes for when the deviation from the requirements set by section 64 is
of a serious nature. Furthermore, to determine such fairness the attempts to
comply with this Labour Relations Act must be considered. Whether the strike
was in response to unjustified conduct by the employer or not must also be
considered. On the other hand, it must be noted that minor technical factors
such as non-compliance with the time limits/incorrectly completing forms may
be condoned; hence the court could hold that, in the absence of the other
factors, it is unfair to dismiss strikers who took part in an unprotected strike.
Genuine belief that the strike was protected may also mitigate against
dismissal.

In terms of procedural fairness, the first step is for the employer to contract
union official at the earliest possible opportunity to discuss the course of act
that is proposes to take. The purpose of such is to provide a hearing to the
union or employees as to whether an ultimatum should be issued and whether
the employees who disregard the ultimatum should be dismissed; it may also
be a means to persuade the employees to return to work. Moreover, the
employer must issue an ultimatum in a clear and unambiguous terms or in
vernacular where necessary. The ultimatum must outline that the strikers are
expected to return to work by a reasonable date and time allowing ample time
for them to consider their position, seek advice and make a decision. Upon
failure to return the resultant outcome will be dismissal.

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