MRL3702 EXAM PACK 2024

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MRL3702
EXAM PACK

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UNIVERSITY EXAMINATIONS

October/November
2023

MRL3702

Labour Law

100 Marks

Duration: 4 Hours

This paper consists of 10 pages

INSTRUCTIONS FOR A PORTFOLIO OR TAKE-HOME EXAM ON MYEXAMS

PLEASE READ THE FOLLOWING INSTRUCTIONS CAREFULLY BEFORE ANSWERING THE

EXAMINATION QUESTIONS.

1. The examination question paper counts 100 marks.

2. It consists of 4 questions. Answer ALL of the questions.
3. The duration of the examination on the timetable is 4 hours.
4. In addition to the duration of the examination indicated on the timetable, you are given
30 minutes to FINALISE the uploading of your exam file. Your exam file must be
uploaded via the myExams platform on 17 OCTOBER 2023 before 12H:30 (South
African Standard Time).
5. This is an open-book examination. You may consult your prescribed material.
However, while the examination is in progress, you are not allowed to consult another
person or any source in order to assist you to answer any of the questions contained
in this question paper. While the examination is in progress, you may not assist
another student in answering any of the questions contained in this question paper.
6. This examination is proctored via the Invigilator App. You are required to activate
the Invigilator app between 7H:45 and 8H:30. The QR code is provided below on
page 10.
7. Your exam file must be uploaded on the myExams platform.
7.1 When ready to submit, open the Take-Home assessment again and click on the Add
Submission button. Note: You only get 10 minutes after the due time to submit
your script on the Invigilator App and 30 minutes on the myExams portal.

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7.2. Note the file requirements such as:

a. File size limit.
b. Number of files that can be submitted.
c. File formats allowed.

7.3. Check the acknowledgment checkbox and upload your answers document and then
click on the Save changes button.

7.4. Review your submission information regarding the status and click on your submission
file link to check if it's correct.

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7.5. If you need to resubmit a file, click on the Edit Submission button. Do not click on the
Remove submission button. Note: You will need to delete any existing files by clicking
on the file and then on delete.

7.6 Use proper PDF conversion software to create the final file for upload. Free PDF
conversion software is available on the Internet.
7.7 Add your student number and the module code in the file name. That will assist you to
select the correct document to upload during submission.
7.8 You are advised to preview your submission (answer script) to ensure legibility and that
the correct answer script file has been uploaded.
8. The cover page for your take-home exam must include your name, student number and
the module code.

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9. It is preferred that your take-home exam is typed. However, handwritten submissions will
also be accepted. If the take-home exam is typed, the maximum length is 12 pages (which
includes the cover page and the bibliography). If the take-home exam is handwritten, the
maximum length is 14 pages (which includes the cover page and the bibliography).
10. Whether your answers are typed or handwritten, your submission on the myExams
platform on Moodle must be made in the form of one PDF document. Only the last file
uploaded and submitted will be marked.
10.1 The exam answer file that you submit must not be password protected or uploaded as a
“read only” file.
10.2 Your examination answer file will not be marked if:
10.2.1 you send your examination answer file via email.
10.2.2 you submit the incorrect examination answer file. A mark of 0% will be awarded.
10.2.3 you submit your exam answer file on an unofficial examination.
10.2.4 you submit your examination answer file in the incorrect file format.
10.2.5 you submit a password-protected document.
10.2.6 you submit your examination answer file late.
10.2.7 you submit your answer file from a registered student account that is not your own.
10.3 The mark awarded for an illegible examination answer file submission will be your final
mark. You will not be allowed to resubmit after the scheduled closing date and time of the
exam.
11. If your answers are typed, ensure that the following requirements are adhered to. Items
11.3-11.6 applies to written assignments as well.
11.1 The text must be typed in Arial font, size 12 with single line spacing within the paragraph,
and double line spacing after the paragraph.
11.2 The text must be justified.
11.3 All of the pages must be numbered in the right hand corner at the bottom of the page.
11.4 All margins must be 2.5cm, but the left margin must be 3cm.
11.5 South African English and not American English should be used. For example, the correct
spelling is “Labour” and not “Labor”.
11.6 Do not use abbreviations or SMS language.
11.7 All quotes that are two lines long (or less), must form part of the main text, be written in
italics, and be bracketed by quotation marks. Where a quotation is longer than two lines,
it must be typed in a separate paragraph in italics in size 11 font and must be indented by
1 cm. No quotation marks are required when the quotations stand alone. Use quotations
very sparingly. In this take-home exam, a maximum of 5% of the text may be quoted.
12. When answering the take-home exam questions, remember that an open-book exam is
a test at a higher level than the usual type of exam, where memory is tested as much as
insight. In an open-book exam, you need not memorise any information. You are expected
to prove that you can use information, rather than merely repeat it. In brief, what is being
tested is factual knowledge, understanding and the correct application thereof, not
memory skills. For this reason, you do not earn marks by merely detailing a list of all the
information that you think might be relevant to a particular question. This gives no
indication that you know what statutory or other provisions are applicable in a specific
context. You are expected to identify precisely what information applies, and then explain
why you think so.
12.1 PLEASE DO NOT CUT AND PASTE ANSWERS FROM THE STUDY MATERIAL (OR
ANY OTHER SOURCE).
13. The arguments that you make must be logical, well-structured and substantiated by all of
the relevant legal principles. Use the time given wisely.

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13.1 Ensure that you give reasons for each answer. Substantiate your answers by referring to
ALL of the relevant authorities, e.g. sections from relevant legislation and/or court cases
in the text or in your footnotes.
13.2 You are required to have read and summarised the prescribed cases yourself. When
using case law to support your answer, please include complete references to the relevant
cases in your footnotes. This means that you must not only include the name of the case
but also the exact page and section and/or paragraph where the information can be found.
The same applies to articles and books used.
13.3 A number of students lose marks because they do not approach problem-type questions
correctly. When answering such questions, it is important to first clarify for yourself the
area of work where the answer must be sought. Once you have done this, set out the
relevant legal principles. Deal only with those principles that relate to the given facts. Next,
apply these principles to the facts. This is where most of the students lose marks - they
set out the law in some detail, but then do not illustrate how it applies to the factual
situation they have been asked to solve. Finally, state your conclusion.
14. You must complete the online declaration of own work when submitting.
14.1 By ticking the Honesty Declaration, you confirm that you have read (i) the
University’s Policy on Copyright Infringement and Plagiarism and the Student Disciplinary
Code, which are both available on myUnisa: www.unisa.ac.za/unisarules, and (ii) the
information relating to student values and plagiarism that is found at
https://www.unisa.ac.za/sites/myunisa/default/Study-@-Unisa/Student-values-and-rules.

14.2 Students suspected of dishonest conduct during the examinations will be subjected to
disciplinary processes. Students may not communicate with any other person or request
assistance from any other person during their examinations. The use of Telegram,
WhatsApp or any other instant messaging services with any other person (except
when asking for technical assistance via official channels of the SCSC or the
Invigilator WhatsApp line) are strictly prohibited. Plagiarism is a violation of
academic integrity and students who plagiarise, copy from published works or use
Artificial Intelligence Software (eg ChatGPT) or online sources (eg course material)
will be in violation of the Policy on Academic Integrity and the Student Disciplinary
Code and may be referred to a disciplinary hearing. Unisa has a zero tolerance for
plagiarism and/or any other forms of academic dishonesty.

PLEASE NOTE:

If you experience challenges with the Invigilator app, please send a WhatsApp message to the
technical helpdesk on 073 505 8273. Do not contact the lecturers. For all other exam-related
challenges, you may contact the SCSC on 080 000 1870 or e-mail
[email protected] or refer to Get-Help for the list of additional contact numbers.

FURTHER NOTE THE FOLLOWING USE OF ABBREVIATIONS IN THE PAPER:

1. The Constitution of the Republic of South Africa, 1996 is referred to as the 'Constitution'.
2. The International Labour Organisation is referred to as the 'ILO'.
3. The Labour Relations Act 66 of 1995 is referred to as the 'LRA'.
4. The Commission for Conciliation, Mediation and Arbitration is referred to as the 'CCMA'.

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MRL3702
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QUESTION 1

According to recent statistics issued by the Department of Employment and Labour,

unemployment in South Africa is sitting at 32.7 percent. This number includes both new
and disgruntled graduates. The latter category has been seeking jobs for more than five
years without success and has since gave up. In early 2023, a group of graduates formed
a movement called Concerned Unemployed Graduates of South Africa (CUGSA) which
demands that the government must make jobs available for all the graduates. Further
that priority should be given to South Africans when filing the positions and that a
retirement policy should be developed, which sets retirement age at 60 years across all
the economic sectors. These demands are aimed at levelling the unemployment curve
in South Africa, de-stress the country’s unemployed youth and to alleviate poverty.
Garibishane, a Serbian national and a labour law student agrees with the demand for
the setting out of the retirement age but feels that the demand to prioritise South Africans
when hiring unfairly discriminates against non-South Africa.

With reference to relevant legal authority, write a one page well supported legal opinion
regarding the fairness of the two demands made by CUGSA insofar as they relate to
age, and discrimination based on nationality. (25)
[25]

QUESTION 2

Scumba owns a record label and employs six (6) employees. In early 2022, Scumba
advertised a position of admin clerk to ease the admin department staff of the stress
associated with the workload. In the advert, the requirements were that candidates
should have a Diploma in Office management and at least a year's experience as admin
clerk. Sesi applied, was called for an interview, and was appointed to fill the post. She
has five years’ experience and possesses the relevant diploma. A month later Sesi
realized that she was earning the same salary as the other six admin clerks, yet she is
five years more experienced than any of the admin clerks. Based on that, she demands

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an immediate pay increase suitable for her experience. Dimakatso, one of the admin
clerks feels that Sesi does not deserve a pay higher than theirs as she found them there;
they are doing the same job and should thus earn the same.

2.1 With reference to relevant legal authority discuss whether Sesi or Dimakatso has
a legitimate claim and why? (10)
2.2 Distinguish between ‘re-employment’ and ‘reinstatement’ and provide an example
of each. (4)
2.3 Define the concept ‘automatically unfair dismissal’. (8)
2.4 Explain the circumstances under which an employee may be entitled to a ‘family
responsibility leave’? (3)
[25]

QUESTION 3

3.1 UNISA employees who travel to and from Tembisa daily are complaining that their
transport fare has increased since the introduction of e-tolls. Accordingly, they
argue that their salaries are 10 percent less than their colleagues from Pretoria
and other areas where they do not use e-tolled routes. Therefore, they demand
that the employer should reimburse them the 10 percent they lose to the e-tolled
routes or to cause the government to remove the e-tolls, failing which, they will
strike.
With reference to relevant legal authority, discuss the lawfulness of the use of the
strike to support their demand to have the e-tolled route between Tembisa and
UNISA removed. (15)
3.2 Discuss the employer’s conducts which constitute a refusal to bargain with the
trade union? (10)
[25]
QUESTION 4

4.1 Distinguish between the primary strike and the secondary strike in terms of their
procedures. (10)

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4.2 Members of the South African National Defence Force working at the border posts
demand a fifteen percent salary increase because, they claim, ‘we work in
bushes, remote from our families, and are exposed to physical danger and
foreign illnesses associated with the bush life. This is not social’. They gave
the government an ultimatum to respond positively within a month, failing which,
they will strike.
With reference to relevant legal authority, discuss whether the ultimatum by the
SANDF to strike is legally possible. (15)
[25]
TOTAL: [100]

FIRST EXAMINER : ADV KL KUBJANA

SECOND EXAMINER : PROF ME MANAMELA

©
UNISA 2023

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ANNEXURE A

PLAGIARISM DECLARATION

Student name:

Student number:

Course code:

I know that plagiarism is to use another’s work and pass it off as one’s own work.
I know that plagiarism is wrong.
I confirm that this portfolio is my own work.
I have acknowledged all sources that I have used.
I have not directly copied anything from the internet or from any other source.
I have indicated every quotation and citation in a footnote or bracket linked to that
quotation.
I have not allowed anyone else to copy my work so as to pass it off as their work.
I understand that if any unacknowledged copying whatsoever appears in my portfolio,
I will receive 0% for the portfolio.
I am aware of the UNISA policy on plagiarism and understand that disciplinary
proceedings can be instituted against me by UNISA if I contravene this policy.

Signed by …………………………………….

Date .............................................

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MRL3702 OCTOBER EXAM 2023

Question 1

Legal Opinion

The demands made by Concerned Unemployed Graduates of South Africa

(CUGSA) regarding the setting of a retirement age and the priority given to
South Africans during hiring raise concerns regarding fairness and potential
discrimination based on age and nationality. In this legal opinion, we will analyze
the legality and fairness of these demands in light of relevant legal authority.

Setting a retirement age at 60 years:

The demand for a uniform retirement age of 60 years across all economic
sectors can be supported by the Promotion of Equality and Prevention of Unfair
Discrimination Act (PEPUDA) in South Africa. This Act prohibits unfair
discrimination, including discrimination based on age. However, it should be
noted that the Constitution of South Africa also provides protection against
unfair discrimination in section 9, which includes both direct and indirect
discrimination.

In assessing the fairness of this demand, it must be considered whether the

proposed retirement age of 60 years is reasonable and justifiable in terms of
the intrinsic requirements of the job and the promotion of the efficiency,
productivity, and competitiveness of the workforce. Different sectors may have
different requirements and considerations when it comes to a retirement age,
such as physical demands or the need for innovation and fresh perspectives.
Therefore, it is necessary to evaluate the impact and feasibility of a uniform
retirement age across all sectors.

2. Priority given to South Africans during hiring:

The demand for priority to be given to South Africans when filling job positions
raises concerns regarding potential discrimination based on nationality. The
Employment Equity Act (EEA) in South Africa prohibits unfair discrimination on
the grounds of nationality or citizenship. Section 6 of the EEA prescribes that

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no employer may unfairly discriminate when recruiting, selecting, or training

employees.

In determining whether this demand is fair, it is necessary to consider whether

the protection of South African citizens in employment opportunities can be
justified in terms of promoting employment equity and redressing historical
disadvantages. The South African government has a legitimate interest in
addressing past injustices through affirmative action policies. However, any
such policy must be implemented in a manner that is consistent with the
principles of fairness and non-discrimination.

It should be noted that the Constitutional Court of South Africa has addressed
the issue of employment equity and has clarified that affirmative action
measures can be taken to promote equality and redress past discriminatory
practices, but such measures must be reasonable and justifiable in a
democratic society.

Conclusion:

The demands made by CUGSA regarding the retirement age are supported by
anti-discrimination legislation, and the fairness of a uniform retirement age of
60 years should be evaluated on a sector-specific basis. However, the demand
for priority given to South Africans during hiring raises concerns of potential
discrimination based on nationality. While the South African government has a
legitimate interest in promoting employment equity, any policy must be
implemented in a fair and non-discriminatory manner. Therefore, it is advised
that caution be exercised in implementing such a policy to ensure compliance
with the principles of fairness and non-discrimination.

Question 2

2.1 Sesi and Dimakatso both have valid arguments but neither can claim a
legitimate right to a pay increase solely based on experience. Sesi may argue
that her five years of experience should be taken into account and she should

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be compensated accordingly. However, the advertisement only required a

minimum of one year's experience, and Sesi was hired based on meeting that
requirement. It is up to the employer to determine the salary and it is not
automatically adjusted based on experience beyond the minimum requirement.

On the other hand, Dimakatso's argument that they should all earn the same
salary is also not entirely valid. It is common for employees with different levels
of experience to earn different salaries, as long as it is not based on
discriminatory grounds. In this case, Sesi was hired under the same
requirements as the other admin clerks and therefore it is not unfair for her to
earn the same salary.

In summary, while Sesi may feel that she deserves a higher salary based on
her experience, she does not have a legitimate claim as she was hired based
on the advertised requirements. Similarly, Dimakatso's argument that they
should all earn the same salary is also not valid as it is acceptable for
employees to have different salaries based on factors such as experience.

2.2 Re-employment refers to when an employee is hired again by their previous

employer after a period of absence, such as a termination or resignation. This
could occur when an employee is rehired after a gap in employment due to
personal reasons or when an employee is rehired after being dismissed and
then successfully challenging the dismissal.

For example, if an employee resigns from a company to take care of a sick

parent and then later decides to rejoin the company after the parent's health
improves, it would be considered re-employment.

Reinstatement, on the other hand, refers to when an employee who has been
unfairly dismissed is ordered to be reinstated to their previous position with all
the rights and benefits they had prior to the dismissal. This could occur when
an employee wins a case of unfair dismissal and the court or relevant authority
orders the employer to reinstate the employee.

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For example, if an employee is wrongfully dismissed for discriminatory reasons

and the court determines that the dismissal was unfair, the employee may be
reinstated to their previous position with all the same rights and benefits they
had before the dismissal.

2.3 An automatically unfair dismissal is this type of dismissal the employer

cannot defend the dismissal. Automatic unfair dismissal is a term used to
describe certain situations where an employee was dismissed for a specific
reason which is protected by legislation. Some examples of automatically unfair
dismissals are dismissals relating to:

a) asserting a statutory right

b) maternity/paternity leave

c) parental/adoption leave

d) asking to be paid the minimum wage

e) pregnancy

f) trade union activities

g) making a protected disclosure (ie whistleblowing)

If the reason for dismissing an employee was for one or more of these (non-
exhaustive) reasons, then the dismissal will be considered automatically unfair.
The difference between unfair dismissal and an automatic unfair dismissal is
that the latter is available to all employees regardless of length of service.

In Imatu and Others v Rustenburg Transitional Council1 it was held that a senior
manager cannot be prevented from joining a trade union but must act in good
faith towards the employer and must be careful in order to balance trade union
and employer’s interests. Therefore, if LLZ (Pty) Ltd dismisses Anzo the
dismissal will automatically be unfair.

1
IMATU & Others v Rustenburg Transitional Council (2000) 21 ILJ 377 (LC)

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In terms of section 187 of the LRA a dismissal is automatically unfair if an

employer discriminates against an employee or if an employee is dismissed
because he exercised his rights in terms of the LRA.

2.4 In South Africa, an employee may be entitled to a family responsibility leave

under the following circumstances:

Birth of a child: An employee is entitled to leave when their child is born,

including any stillbirth from the 26th week of pregnancy or the birth of a disabled
child.

Illness of a child: If an employee's child is sick or requires immediate medical

attention, they are entitled to leave to take care of the child. This is also
applicable in the event of the death of a child.

Illness of a spouse or life partner: If an employee's spouse or life partner falls ill
or requires immediate medical attention, the employee is entitled to leave to
provide care and support.

Death of a relative: In the unfortunate event of the death of an employee's

spouse or life partner, parent, adoptive parent, grandparent, child, adopted
child, grandchild, brother, sister, or in-law, the employee is entitled to leave to
make funeral arrangements and attend the funeral.

Adoption of a child: When an employee adopts a child, they are entitled to leave
for a period as specified in their employment contract or according to the
bargaining council agreement.

Question 3

3.1 The Labour Relations Act defines a strike in its section 213 as the partial or
complete concerted refusal to work, or the retardation or obstruction of work,
by persons who are or have been employed by the same employer or by
different employers, for the purpose of remedying a grievance or resolving a
dispute in respect of any matter of mutual interest between employer and
employee, and every reference to ‘‘work’’ in this definition includes overtime
work, whether it is voluntary or compulsory’.

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In order to determine the lawfulness of using a strike to support the demand to

remove the e-tolled route between Tembisa and UNISA, we need to consider
relevant legal authority.

The right to strike is protected in South Africa under the Labour Relations Act
(LRA) No. 66 of 1995. Section 64 of the LRA provides that every employee has
the right to strike, subject to certain requirements and restrictions. A strike can
be lawful if it meets the following criteria:

Compliance with procedural requirements: The employees must have given

the employer notice of their intention to strike at least 48 hours in advance,
unless a different period is agreed upon. This notice must specify the date and
time of the intended strike.

The strike must relate to a matter of mutual interest: The issue being contested
must directly affect the employment relationship between the employees and
the employer, and it must be a matter that the employer is able to address or
influence.

Attempts at resolution: The parties must have engaged in, or attempted to

engage in, dispute resolution processes such as negotiation, mediation, or
conciliation. If a strike is called without first attempting these processes, it may
be deemed unlawful.

Proportional conduct: The employees must act within the bounds of

reasonableness and proportionality. This means that the strike action must not
involve violence, intimidation, or damage to property.

In the given scenario, the employees are arguing that the e-tolled route has led
to an increase in their transport fare and a decrease in their salaries when
compared to their colleagues in other areas. While their demand to be
reimbursed for the additional costs may have some merit, it is unclear whether
their demand to remove the e-tolled route entirely falls within the scope of a
matter of mutual interest.

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The e-tolls are a government initiative and not directly within the control of the
employer. Therefore, it may be argued that the employer is unable to address
or influence the issue, which is one of the requirements for a lawful strike.

Furthermore, there is no mention of the employees attempting to engage in

dispute resolution processes before resorting to strike action. It is important for
the employees to demonstrate that they have exhausted these processes or
can prove that they were futile before a strike can be considered lawful.

In conclusion, while the employees may have a legitimate grievance regarding

the increase in transport fare and decrease in salaries, it is unclear whether
their demand to remove the e-tolled route between Tembisa and UNISA falls
within the scope of a matter of mutual interest, which is a requirement for a
lawful strike. Additionally, it is important for the employees to demonstrate that
they have exhausted or attempted dispute resolution processes before
resorting to strike action.

3.2

1. Refusal to recognize a trade union as a collective bargaining agent: This

occurs when an employer refuses to acknowledge a trade union as the
representative of its employees for the purpose of collective bargaining. The
employer may refuse to engage in negotiations or discuss any matters related
to employment conditions and terms with the trade union.

2. Refusal to agree to establish a bargaining council: A bargaining council is a

formal institution consisting of representatives from both employer
organizations and trade unions. Its purpose is to facilitate collective bargaining
and resolution of disputes between employers and trade unions. If an employer
refuses to agree to establish a bargaining council, they are effectively
preventing the trade union from engaging in collective bargaining and resolving
workplace issues through formal mechanisms.

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3. Withdrawal of recognition of a collective bargaining agent: This occurs when

an employer previously recognized a trade union as the collective bargaining
agent but decides to withdraw that recognition. By doing so, the employer
refuses to negotiate with the trade union on future employment conditions and
terms, thereby disregarding the organization's role as a representative of the
employees.

4. Resignation of a party from a bargaining council: A bargaining council

functions by having representatives from both employer organizations and
trade unions. If an employer resigns from a bargaining council, they are
effectively refusing to continue participating in collective bargaining and
resolving workplace disputes through the established mechanism. This can
hinder the trade union's ability to negotiate and advocate for better employment
conditions for its members.

5. Dispute about appropriate bargaining units, levels, or subjects: In some

cases, employers may dispute the appropriateness of the bargaining units,
levels, or subjects proposed by the trade union for collective bargaining. This
can manifest as a refusal to negotiate unless the trade union accepts the
employer's terms on these matters, essentially preventing the trade union from
bargaining for its members' interests.

Disputes regarding a refusal to bargain must first be referred to the CCMA for
an advisory award before the notice in terms of section 64(1)(b) or (c) is given.
An advisory award provides guidance only; it is not binding on the parties.

Question 4

4.1 The primary strike and the secondary strike refer to two different types of
labor strikes and their procedures:

Primary Strike:

- A primary strike is initiated by workers who are directly involved in a labor

dispute with their employer.

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- The primary strike involves employees who are seeking to address

issues related to their own employment conditions, wages, benefits, or
other grievances they have with their employer.
- The procedure for a primary strike involves workers stopping work and
refusing to carry out their job responsibilities until their demands are met
or until they reach an agreement with their employer.
- The primary strike primarily affects the company or organization directly
involved in the dispute.

Secondary Strike:

- A secondary strike, also known as a sympathetic strike, is initiated by

workers who are not directly involved in the labor dispute but choose to
strike in solidarity with another group of workers who are facing
difficulties.
- The secondary strike involves employees who may work for different
companies or industries but share a common interest or goal with the
primary striking workers.
- The procedure for a secondary strike involves workers from different
workplaces or industries refusing to work in support of the primary
striking workers, thereby increasing the pressure on the employer to
meet the demands of the primary strike.
- The secondary strike primarily affects companies or industries indirectly
connected to the primary labor dispute.

4.2 The legality of the ultimatum by the South African National Defence Force
(SANDF) to strike depends on the legal framework governing the right to strike
for members of the SANDF. In South Africa, the right to strike is protected by
the Labour Relations Act, 1995 (LRA). Essential service is defined in section
213 of the LRA as: the Parliamentary service; the South African Police Service;
or a service the interruption of which endangers the life, personal safety or
health of people declared as such by the Essential Services Committee.

Section 65 of the LRA provides that every employee has the right to strike,
except for certain categories of employees designated as "essential services."
Essential services are defined in the Act as services that, if interrupted, would

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endanger the life, safety, or health of the whole or any part of the population. In
this case, members of the SANDF are working at border posts, where they
argue to be in remote locations, exposed to physical danger and foreign
illnesses. However, it is important to determine whether the SANDF and their
functions can be classified as an essential service.

In SA Police Service v Police and Prisons Civil Rights Union and Another 2011
(9) BCLR 992 (CC) it was held that support staff were entitled to strike. The
prohibition applies only to those who are employed to perform police functions.
These employees may refer their dispute for arbitration under section 74 of the
LRA.

Considering the SANDF's mandate of protecting the country's borders, it can

be argued that their functions are crucial for national security and defense. Any
interruption or strike by the SANDF could potentially endanger the safety and
security of the country and its population. Therefore, it is likely that the SANDF
would be classified as an essential service, and its members would be
prohibited from striking under the LRA.

However, it is important to note that the LRA allows for dispute resolution
mechanisms such as negotiation, mediation, and arbitration. The SANDF
members could engage in these processes to address their demands for a
salary increase without resorting to a strike. In terms of section 74 where there
is a collective bargaining dispute in an essential service or maintenance
service, it must first be referred for conciliation to either a bargaining council or
the CCMA and, if it remains unresolved it must be referred for arbitration to
either a council or the CCMA. The arbitrator is tasked to achieve a rational
outcome of the dispute.

Application to the facts

based on the legal framework in South Africa, it is unlikely that the ultimatum by
the SANDF to strike is legally possible. However, the members of the SANDF
can explore alternative dispute resolution mechanisms to address their
demands. In this case, members of the SANDF are working at border posts,
where they argue to be in remote locations, exposed to physical danger and
foreign illnesses. However, it is important to determine whether the SANDF and

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their functions can be classified as an essential service. Part of these

employees can be able to strike only if there is a collective agreement providing
for the maintenance of certain minimum services in which employees who
provide the minimum service will not be able to strike as they will now be
regarded as an essential service in respect of the employer, while the rest of
the ‘essential services’ may strike.

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UNIVERSITY EXAMINATIONS

May/June 2023
Exam

MRL3702

Labour Law

100 Marks

Duration: 4 Hours
This paper consists of 11 pages

INSTRUCTIONS FOR A PORTFOLIO OR TAKE-HOME EXAM ON MYEXAMS

PLEASE READ THE FOLLOWING INSTRUCTIONS CAREFULLY BEFORE ANSWERING THE

EXAMINATION QUESTIONS.

INSTRUCTION:

1. The examination question paper counts 100 marks.

2. It consists of FOUR sections. Answer ALL the questions.

3. The scheduled duration of the examination on the timetable is FOUR hours.

4. In addition to the duration of the examination indicated on the timetable, you are given 30
minutes to FINALISE the uploading of your exam file. Your exam file must be uploaded
via the myExams platform on 12 MAY 2023 BEFORE 12h30 (South African Standard
Time).

5. This is an open-book examination. You may consult your prescribed study material
during the examination.

6. This examination is proctored via the Invigilator App. You are required to activate the
Invigilator app between 07h45 and 08h30 (South African Standard Time).

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The QR CODE is below:

6.1. Please note: If a student is found to have been outside the invigilator app for a total of 10
minutes during their examination session, they will be considered to have violated Unisa's
examination rules and their marks will be withheld.

6.2 You only get 15 minutes after the due time to submit your script on the Invigilator
App

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6.3 Students have 48 hours from the date of their examination to upload their invigilator
results from the Invigilator App. Failure to do so will result in students deemed not to
have utilised the invigilation or proctoring tools.

7. Your exam file must be uploaded on the myExams platform.

7.1 When ready to submit, open the Take-Home (Assignment) assessment again and click on
the Add Submission button. Note: You only get 15 minutes after the due time to submit
your script on the Invigilator App and 30 minutes on the myExams portal.

7.2. Note the file requirements such as:

a. File size limit.
b. Number of files that can be submitted.
c. File formats allowed.

7.3. Check the acknowledgment checkbox and upload your answers document and then
click on the Save changes button.

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7.4. Review your submission information regarding the status and click on your submission
file link to check if it's correct.

7.5. If you need to resubmit a file, you can click on the Edit Submission button. Note: You will
need to delete any existing files.

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7.6 Use proper PDF conversion software to create the final file for upload. Free PDF
conversion software is available on the Internet.

7.7 Add your student number and the module code in the file name. That will assist you to
select the correct document to upload during submission.

7.8 You are advised to preview your submission (answer script) to ensure legibility and that
the correct answer script file has been uploaded.

8. The cover page for your take-home exam must include your name, student number and
the module code.

9. It is preferred that your take-home exam is typed. However, handwritten submissions will
also be accepted. If the take-home exam is typed, the maximum length is 10 pages (which
includes the cover page and the bibliography). If the take-home exam is handwritten, the
maximum length is 15 pages (which includes the cover page and the bibliography).

10. Whether your answers are typed or handwritten, your submission on the myExams
platform on Moodle must be made in the form of one PDF document. Only the last file
uploaded and submitted will be marked.

10.1 The exam answer file that you submit must not be password protected or uploaded as a
“read only” file.

10.2 Your examination answer file will not be marked if:

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10.2.1 you send your examination answer file via email.

10.2.2 you submit the incorrect examination answer file. A mark of 0% will be awarded.
10.2.3 you submit your exam answer file on an unofficial examination.
10.2.4 you submit your examination answer file in the incorrect file format.
10.2.5 you submit a password-protected document.
10.2.6 you submit your examination answer file late
10.2.7 you submit your answer file from a registered student account that is not your own.

10.3 The mark awarded for an illegible examination answer file submission will be your final
mark. You will not be allowed to resubmit after the scheduled closing date and time of the
exam.

11. If your answers are typed, ensure that the following requirements are adhered to. Items
11.3-11.6 applies to written assignments as well.

11.1 The text must be typed in Arial font, size 12 with single line spacing within the paragraph,
and double line spacing after the paragraph.

11.2 The text must be justified.

11.3 All of the pages must be numbered in the right-hand corner at the bottom of the page.

11.4 All margins must be 2.5cm, but the left margin must be 3cm.

11.5 South African English and not American English should be used. For example, the correct
spelling is “Labour” and not “Labor”.

11.6 Do not use abbreviations or SMS language.

11.7 All quotes that are two lines long (or less), must form part of the main text, be written in
italics, and be bracketed by quotation marks. Where a quotation is longer than two lines,
it must be typed in a separate paragraph in italics in size 11 font and must be indented by
1 cm. No quotation marks are required when the quotations stand alone. Use quotations
very sparingly. In this take-home exam, a maximum of 5% of the text may be quoted.

12. When answering the take-home exam questions, remember that an open-book exam is a
test at a higher level than the usual type of exam, where memory is tested as much as
insight. In an open-book exam, you need not memorise any information. You are expected
to prove that you can use information, rather than merely repeat it. In brief, what is being
tested is factual knowledge, understanding and the correct application thereof, not
memory skills. For this reason, you do not earn marks by merely detailing a list of all the
information that you think might be relevant to a particular question. This gives no
indication that you know what statutory or other provisions are applicable in a specific

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context. You are expected to identify precisely what information applies, and then explain
why you think so.

12.1 Also, because you have the guide available when answering questions, we do not give
marks for direct quotations from the guide. You are therefore assessed on your level of
understanding of the legal principles by looking at how well you applied the principles to
the questions.

12.2 PLEASE DO NOT CUT AND PASTE ANSWERS FROM THE STUDY GUIDE (OR ANY
OTHER SOURCE).

12.3 The arguments that you make must be logical, well-structured and substantiated by all of
the relevant legal principles. Use the time given wisely.

12.4 Ensure that you give reasons for each answer. Substantiate your answers by referring to
ALL of the relevant authorities, e.g. sections from relevant legislation and/or court cases
in the text or in your footnotes.

12.5 A number of students lose marks because they do not approach problem-type questions
correctly. When answering such questions, it is important to first clarify for yourself the
area of work where the answer must be sought. Once you have done this, set out the
relevant legal principles. Deal only with those principles that relate to the given facts. Next,
apply these principles to the facts. This is where most of the students lose marks - they
set out the law in some detail, but then do not illustrate how it applies to the factual situation
they have been asked to solve. Finally, state your conclusion.

13. You must complete the online declaration of own work when submitting.

13.1 By ticking the Honesty Declaration, you confirm that you have read (i) the
University’s Policy on Copyright Infringement and Plagiarism and the Student Disciplinary
Code, which are both available on myUnisa: www.unisa.ac.za/unisarules, and (ii) the
information relating to student values and plagiarism that is found at
https://www.unisa.ac.za/sites/myunisa/default/Study-@-Unisa/Student-values-and-rules.

13.2 Students suspected of dishonest conduct during the examinations will be subjected to
disciplinary processes. Students may not communicate with other students, or request
assistance from other students during examinations. Plagiarism is a violation of academic
integrity, and students who do plagiarise or copy verbatim from published work will be in
violation of the Policy on Academic Integrity and the Student Disciplinary Code and may
be referred to disciplinary hearing. Unisa has a zero tolerance for plagiarism and/or any
other forms of academic dishonesty.

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13.3 Unless a student is exempted because of disability or incarceration, students who have
not utilised invigilation or proctoring tools will be deemed to have transgressed Unisa’s
examination rules and will have their marks withheld.

PLEASE NOTE:

If you experience challenges with the Invigilator app, please send a WhatsApp message to the
technical helpdesk on 073 505 8273. Do not contact the lecturers.

For all other exam-related challenges, you may contact the SCSC on 080 000 1870 or e-mail
[email protected] or refer to Get-Help for the list of additional contact numbers.

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QUESTION 1

1.1 Whilst Donkie and Pere agree that an employment contract may be ended through
a dismissal, they are of the view that an employment contract may also be
terminated in other different forms.

Discuss different forms in which an employment contract may be terminated and

give an example of each. (10)

1.2 The employer’s common law duties include providing employees with work and to
pay them for having done the work. This is how the ‘no work, no pay’ principle
came about.

Assume that Lebitso and Lebona, employees of MG Dairies (Pty) Ltd (MGD)
reported to work the whole week but were not able to render their services
because MGD ran out of milk to continue with the production.

Discuss whether MGD has an obligation to pay Lebitso and Lebona for the week
during which they did not render their services. (5)

1.3 Define the concept ‘unfair labour practices’. (10)

[25]
QUESTION 2

2.1 Piet is a medical graduate from Cuba. Six years after completion of his studies,
Piet has not been fortunate to get a job opportunity. On the 1 st April 2023, he
receives a call from a friend, who is an HOD at Bophelong Hospital (BH), to attend
an interview. It emerged during the interview that Piet is HIV positive. After the
interview, Piet was informed that he scored the highest points, but that due to his
HIV status, the Hospital cannot offer him a job. This is because the nature of the
job includes physical contact with patients, some of who may have open wounds
and are therefore at a high risk of infection. Piet felt defeated and decided to take
his sorrows to alcohol abuse. Piet shared his ordeal with you.

Write a one and half page legally supported opinion explaining the position and or
the protection of the law, which Piet or BH may have in this situation. Your opinion
should also cover the fairness of the action by BH and, any legal remedies
available to Piet. (25)

[25]

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QUESTION 3

3.1 The LRA recognises three grounds of dismissal. For each of these grounds of
dismissal, there is also a relative procedure to follow in order for the dismissal to
be fair. Assume that the employer wishes to retrench employees because of the
unfavourable economic climate. In terms of section 189 (2) of the LRA the
employer is required to consult and to engage in a meaningful joint consensus-
seeking process with the affected employees or their trade union and attempt to
reach consensus on a number of topics.

Answer the following questions with reference to relevant legal authority

(i) Explain what those topics are? (12)

(ii) Distinguish between these acronyms: ‘LIFO’ and ‘FIFO’? (5)
(iii) What are the three grounds of dismissal that are recognised by the LRA?
(3)
3.2 Define the concept ‘protest action’. (5)

[25]

QUESTION 4

4.1 Rabasotho Municipality (RM) and Basotho Workers Union (BWU) began salary
increase negotiations in early January 2021. Initially RM offered a 6% across the
board increase whilst BWU demanded 15%. Eventually, the parties agreed on a
10% increase, which will run for two more years. A collective agreement was
concluded and duly signed by the parties.

Answer the following questions with reference to relevant legal authority:

(i) Define the concept ‘collective agreement’. (5)

(ii) Assume that food and transport price increased in 2022 such that BWU felt
that a 10% increase will not take them far. BWU want to negotiate for a
further 2% increase for 2022. Discuss the lawfulness of BWU’s latest
demand and the possible defence RM may have. (5)
(iii) Assume that RM rejects BWU's demand and the latter resorted to a strike.
RM is advised to dismiss BWU members for they are involved in an
unprotected strike. Discuss the procedure which RM must follow if it
considers the dismissal of these employees for engaging in an unprotected
strike. (10)

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(iv) Advise whether the employer whose employees are on a strike is allowed
to hire temporary employees to keep the business operational. (5)

[25]
TOTAL: [100]

FIRST EXAMINER : ADV KL KUBJANA

SECOND EXAMINER : PROF ME MANAMELA

©
UNISA 2023

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MRL3702 MAY JUNE 2023 MEMO

QUESTION 1

1.1.

There are various forms in which an employment contract may be terminated in

accordance with the Labour Relations Act 66 of 1995. Some of these forms include:

1. Dismissal: This occurs when an employer terminates an employment contract due

to the employee's conduct or capacity. For example, if an employee is continuously
absent without a valid reason, the employer may choose to dismiss them.

2. Resignation: This occurs when an employee voluntarily terminates their

employment contract by giving notice to the employer. For example, if an employee
finds a better job opportunity and decides to resign from their current position.

3. Retrenchment: This occurs when an employer terminates an employment contract

due to economic, technological, or structural reasons. For example, if a company is
undergoing financial difficulties and needs to reduce its workforce, it may choose to
retrench a certain number of employees.

4. Mutual agreement: This occurs when both the employer and the employee agree to
terminate the employment contract. This can happen for various reasons, such as a
change in the terms and conditions of employment or a mutual understanding that the
employment relationship is no longer mutually beneficial.

5. Liquidation: This occurs when a company goes into liquidation and all employment
contracts are automatically terminated. For example, if a company fails to meet its
financial obligations and is declared bankrupt, its employees' contracts will be
terminated due to the liquidation process.

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6. Death: In the unfortunate event of an employee's death, their employment contract

is automatically terminated. The employer usually needs to provide support to the
deceased employee's family, such as pension benefits or compensation.

7. Expiry of fixed-term contract: If an employment contract is for a fixed term, such as

a contract for a specific project or for a temporary position, it will automatically
terminate at the end of the agreed-upon term without any need for further action.

It is important to note that the termination of an employment contract should typically

comply with the requirements and procedures outlined in the Labour Relations Act to
ensure fairness and protect the rights of both the employer and the employee.

1.2.

According to the provisions of the Labour Relations Act 66 of 1995, MGD may have
an obligation to pay Lebitso and Lebona for the week they were unable to render their
services due to MGD running out of milk.

Section 34 of the Labour Relations Act states that an employer is required to

remunerate an employee for the work performed, unless there is a valid and fair reason
not to do so. In this case, MGD may argue that the unavailability of milk was a valid
reason for not being able to assign work to Lebitso and Lebona. However, it is
important to analyze whether this reason meets the criteria of a valid and fair reason.

One relevant factor to consider is whether MGD had control over the availability of
milk. If it can be demonstrated that MGD did not take reasonable steps to ensure that
there was sufficient milk for production, it could be argued that the company failed in
its duty to provide work to the employees. In such a scenario, MGD may be obligated

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to pay Lebitso and Lebona for the week in question as it would be unfair to withhold
payment due to the employer's own failures.

Another factor to consider is whether there are any relevant provisions in the
employment contract or collective bargaining agreement that address this specific
situation. If the contract or agreement stipulates that employees will be paid even if
the employer is unable to provide work due to circumstances beyond their control,
then MGD would likely be obligated to remunerate Lebitso and Lebona.

Ultimately, the determination of whether MGD has an obligation to pay Lebitso and
Lebona for the week they were unable to render their services will depend on the
specific circumstances and applicable contractual and legal provisions. It is advisable
for the employees to consult with an attorney or labor expert to fully assess their rights
in this situation.

1.3.

Unfair labor practices refer to any actions by an employer or management that violate
the rights of workers, exploit them, or create a hostile work environment. These
practices typically involve actions that deprive employees of their basic labor rights,
undermine their bargaining power, or hinder their ability to collectively organize. Some
common examples of unfair labor practices include:

1. Discrimination: The unjust treatment of employees based on their race, gender, age,
religion, disability, or any other protected characteristic in hiring, promotion, wages, or
working conditions.

2. Harassment: Creating a hostile work environment through abusive or offensive

behavior, such as sexual harassment, bullying, or intimidating tactics.

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3. Retaliation: Taking adverse actions, such as termination, demotion, or salary

reduction, against employees for participating in protected activities, such as
whistleblowing or filing complaints.

4. Wage and hour violations: Failing to pay employees minimum wage, overtime pay,
or wrongly classifying them as independent contractors to avoid providing benefits or
complying with labor laws.

5. Unreasonable work hours: Forcing employees to work excessive hours without

proper rest or compensation, violating maximum hours regulations or denying legally
mandated breaks.

6. Unlawful termination: Firing employees without just cause or in violation of

employment contracts, labor laws, or collective bargaining agreements.

7. Interference with organizing efforts: Preventing or suppressing workers' rights to

freely associate, join unions, or engage in collective bargaining.

8. Employing child labor: Using underage workers in hazardous or inappropriate work

conditions, violating child labor laws or international conventions.

9. Denial of benefits: Withholding or denying legally mandated benefits, such as paid

leave, health insurance, retirement plans, or safety protections.

10. Unfair negotiations or refusal to bargain: Engaging in bad faith bargaining or

refusing to negotiate in good faith with employees' representatives during collective
bargaining negotiations.

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These unfair labor practices undermine the dignity, well-being, and rights of workers,
and are typically regulated and prohibited by labor laws, trade unions, and international
labor standards.

The LRA establishes mechanisms for addressing unfair labor practices. It provides for
the establishment of the Commission for Conciliation, Mediation, and Arbitration
(CCMA) to hear and resolve disputes related to unfair labor practices. Parties can
approach the CCMA for dispute resolution, and if unresolved, the matter can be
referred to the Labour Court for adjudication.

In conclusion, the concept of "unfair labor practices" under the Labour Relations Act
66 of 1995 encompasses a range of actions or behaviors that violate the principles of
fairness and equity in the workplace. It covers unfair conduct by employers, trade
unions and employers' organizations, unfair practices relating to strikes and lockouts,
and unfair discrimination. The LRA provides a framework for handling such practices
through dispute resolution mechanisms.

QUESTION 2

The case of Piet, a medical graduate who was denied a job opportunity at Bophelong
Hospital (BH) due to his HIV-positive status, raises important legal questions
surrounding employment discrimination, HIV status disclosure, and the protection
offered by the Labour Relations Act 66 of 1995 (LRA).

Prohibition of Unfair Discrimination under LRA:

The LRA aims to promote fair and non-discriminatory employment practices in South
Africa. Section 6 of the LRA prohibits unfair discrimination on various grounds,
including HIV status, during any stage of the employment relationship, including job
applications, selection, and hiring processes. This provision is in line with the

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constitutional undertaking to protect the rights of individuals, including those living with
HIV/AIDS, to equal treatment and dignity.

Does BH's Decision Constitute Unfair Discrimination?

Based on the information provided, it appears that Bophelong Hospital denied Piet the
job solely due to his HIV status. This action may indeed be considered unfair
discrimination as it violates the principles outlined in the LRA. BH's decision to deny
employment based on Piet's HIV status undermines the spirit of the legislation and the
constitutional rights of the individual.

Considerations for BH:

While promoting equal rights and opportunities, it is essential to consider the

perspective of BH as a healthcare institution responsible for ensuring the safety and
wellbeing of its patients. Health facilities have a responsibility to mitigate risks of
transmission of infectious diseases, including HIV, to patients. In this case, BH may
argue that the nature of the job requires physical contact with patients, including those
with open wounds, which poses a higher risk of infection. Nevertheless, BH still has to
demonstrate that such risks cannot be effectively managed or minimized through
reasonable measures, such as universal precautions and adherence to infection
control guidelines.

Possible Legal Remedies for Piet:

Piet's situation calls for appropriate legal remedies to address the unfair discrimination
he has faced. Potential remedies may include:

1. Reporting the incident to a relevant labor inspector or the Commission for

Conciliation, Mediation, and Arbitration (CCMA) to initiate a dispute resolution process.

2. Filing a case at the Equality Court, seeking a ruling that BH has contravened the
LRA and claiming appropriate compensation for the discrimination suffered.

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3. Seeking damages through a civil lawsuit against BH for the violation of his
constitutional rights to equality and dignity.

Conclusion:

Based on the provisions of the LRA and the constitutional guarantee of equal
treatment, BH's decision to deny Piet employment solely due to his HIV status appears
unfair and discriminatory. While BH's concerns for patient safety must be
acknowledged, it is essential to recognize that reasonable measures can be
implemented to ensure patient safety while affording equal employment opportunities
to qualified individuals living with HIV. Piet has legal remedies available to challenge
the discrimination he faced and seek appropriate compensation for the violation of his
rights.

QUESTION 3

3.1.

(i) The topics that the employer is required to consult and attempt to reach consensus
on in the retrenchment process, as outlined in section 189(2) of the Labour Relations
Act 66 of 1995, are:

1. The reasons for the proposed retrenchment.

2. The alternatives to retrenchment that may be explored.

3. The methods for minimizing the number of retrenchments.

4. The criteria for selecting employees to be retrenched.

5. The severance pay or other compensation for retrenched employees.

6. The timing of the retrenchment.

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(ii) LIFO stands for "Last In, First Out" and FIFO stands for "First In, First Out." These
acronyms are used to describe different methods of selecting employees for dismissal
in situations where retrenchment is necessary. LIFO means that the last employees
who were hired will be the first ones to be considered for retrenchment. FIFO means
that the employees who have been with the company the longest will be the first ones
to be considered for retrenchment. In essence, LIFO and FIFO are different ways to
determine which employees will be selected for retrenchment.

(iii) The three grounds of dismissal recognized by the Labour Relations Act 66 of 1995
are:

1. Misconduct: This refers to the employee's behavior or actions that can be

categorized as improper or in violation of company policies or rules.

2. Incapacity: This refers to the employee's inability to perform their job duties due to
factors such as poor performance, ill health, or lack of qualifications or skills.

3. Operational requirements: This refers to situations where the employer needs to

retrench employees due to economic, technological, or structural reasons, such as
financial constraints, changes in the business, or the introduction of new technology.

3.2.

A protest action refers to a planned and organized event or activity where individuals
or groups publicly express their dissatisfaction, disagreement, or opposition to a
specific issue, policy, or event. It often involves a gathering of people who share a
common cause or belief and seek to bring attention to their concerns by engaging in
activities such as marches, demonstrations, sit-ins, strikes, boycotts, or other forms of
nonviolent resistance. Protest actions are typically aimed at raising awareness,
generating public support, and pressuring authorities or decision-makers to address
the grievances or bring about the desired change.

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QUESTION 4

(i) According to the Labour Relations Act 66 of 1995, a collective agreement is a written
agreement concluded between a registered trade union or trade unions and an
employer or employers' organization. It regulates the terms and conditions of
employment, including matters such as wages, working hours, dispute resolution
procedures, and other conditions of employment. It is binding on the parties who have
concluded it and can be enforced through legal means.

(ii) In this case, BWU's demand for a further 2% increase for 2022 may not be lawful
if it is made outside the scope of the existing collective agreement. The lawfulness of
BWU's demand depends on whether the collective agreement allows for renegotiation
or amendment of the agreed-upon terms. If the collective agreement does not provide
for such renegotiation, BWU may not have a legal basis to demand a further increase.
RM may argue that the parties had already reached a final agreement on the 10%
increase for two years, and therefore, BWU's demand for a further increase is not
valid.

(iii) If RM considers dismissing BWU members for engaging in an unprotected strike,

it must follow certain procedures as prescribed by the Labour Relations Act 66 of 1995.
These procedures include:

1. Issuing a written notice: RM must issue a written notice to each striking employee,
informing them of the intention to dismiss them for participating in an unprotected
strike. The notice should clearly state the reasons for the intended dismissal.

2. Giving employees an opportunity to make representations: RM must give the

affected employees a reasonable opportunity to make representations against the
proposed dismissal. The employees should be allowed to state their case and provide
any relevant information or evidence in their defense.

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3. Considering representations: RM must consider the representations made by the

employees before making a final decision on whether to dismiss them or not. The
decision should be based on fair and objective grounds.

4. Notifying the employees of the decision: RM must inform the employees of its final
decision regarding their dismissal. The decision should be communicated in writing,
clearly stating the reasons for the dismissal.

5. Compliance with other legal requirements: RM must ensure that the dismissal
process complies with other legal requirements, such as notice periods, severance
pay, and any other terms and conditions of employment as provided by the Labour
Relations Act.

It is important for RM to ensure that it follows these procedures diligently to avoid any
potential claims of unfair dismissal.

(iv) Yes, the employer whose employees are on strike is generally allowed to hire
temporary employees to keep the business operational during the strike. The Labour
Relations Act 66 of 1995 provides for the engagement of temporary or substitute
employees during strikes. However, the temporary employees should not be used as
a replacement for the striking employees but only to maintain essential services or
operations during the strike. The temporary employees should not be used as a means
to undermine the striking employees' right to strike or to break the strike. The employer
must ensure that the use of temporary employees does not result in unfair labor
practices or breaches of the collective agreement.

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MRL3702
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1

UNIVERSITY EXAMINATIONS

October/November 2022

MRL3702

Labour Law

100 Marks

Duration: 4 Hours

This paper consists of 11 pages

INSTRUCTIONS FOR A PORTFOLIO OR TAKE-HOME EXAM ON MYEXAMS

PLEASE READ THE FOLLOWING INSTRUCTIONS CAREFULLY BEFORE ANSWERING THE

EXAMINATION QUESTIONS.

INSTRUCTIONS:
1. The examination question paper counts 100 marks.

2. It consists of four questions. Answer ALL of the questions.

3. The duration of the examination on the timetable is 4 hours.

4. In addition to the duration of the examination indicated on the timetable, you are given
30 minutes to FINALISE the uploading of your exam file. Your exam file must be
uploaded via the myExams platform on 20 OCTOBER 2022 BEFORE 12:30 (South
African Standard Time).

5. This is an open-book examination. You may consult your prescribed study material
during the examination.

6. This examination is proctored via the Invigilator App. You are required to activate the
Invigilator app between 7:45 and 08:30 (South African Standard Time).

The QR code is below (at the end of the paper):

7. Your exam file must be uploaded on the myExams platform.

7.1 When ready to submit, open the Take-Home (Assignment) assessment again and
click on the Add Submission button. Note: You only get 15 minutes after the due

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time to submit your script on the Invigilator App and 30 minutes on the
myExams portal.

7.2. Note the file requirements such as:

a. File size limit.
b. Number of files that can be submitted.
c. File formats allowed.

7.3. Check the acknowledgment checkbox and upload your answers document and then
click on the Save changes button.

7.4. Review your submission information regarding the status and click on your
submission file link to check if it's correct.

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7.5. If you need to resubmit a file, you can click on the Edit Submission button. Note: You
will need to delete any existing files.

7.6 Use proper PDF conversion software to create the final file for upload. Free PDF
conversion software is available on the Internet.

7.7 Add your student number and the module code in the file name. That will assist you to
select the correct document to upload during submission.

7.8 You are advised to preview your submission (answer script) to ensure legibility and
that the correct answer script file has been uploaded.

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8. The cover page for your take-home exam must include your name, student number and
the module code.

9. It is preferred that your take-home exam is typed. However, handwritten submissions

will also be accepted. If the take-home exam is typed, the maximum length is 10 pages
(which includes the cover page and the bibliography if you have). If the take-home exam
is handwritten, the maximum length is 10 pages (which includes the cover page and the
bibliography if you have).

10. Whether your answers are typed or handwritten, your submission on the myExams
platform on Moodle must be made in the form of one PDF document. Only the last file
uploaded and submitted will be marked.

10.1 The exam answer file that you submit must not be password protected or uploaded as
a “read only” file.

10.2 Your examination answer file will not be marked if:

10.2.1 you send your examination answer file via email.

10.2.2 you submit the incorrect examination answer file. A mark of 0% will be awarded.
10.2.3 you submit your exam answer file on an unofficial examination.
10.2.4 you submit your examination answer file in the incorrect file format.
10.2.5 you submit a password-protected document.
10.2.6 you submit your examination answer file late
10.2.7 you submit your answer file from a registered student account that is not your own.

10.3 The mark awarded for an illegible examination answer file submission will be your final
mark. You will not be allowed to resubmit after the scheduled closing date and time of
the exam.

11. If your answers are typed, ensure that the following requirements are adhered to. Items
11.3-11.6 applies to written assignments as well.

11.1 The text must be typed in Arial font, size 12 with single line spacing within the paragraph,
and double line spacing after the paragraph.

11.2 The text must be justified.

11.3 All of the pages must be numbered in the right hand corner at the bottom of the page.

11.4 All margins must be 2.5cm, but the left margin must be 3cm.

11.5 South African English and not American English should be used. For example, the
correct spelling is “Labour” and not “Labor”.

11.6 Do not use abbreviations or SMS language.

11.7 All quotes that are two lines long (or less), must form part of the main text, be written in
italics, and be bracketed by quotation marks. Where a quotation is longer than two lines,
it must be typed in a separate paragraph in italics in size 11 font and must be indented
by 1 cm. No quotation marks are required when the quotations stand alone. Use
quotations very sparingly. In this take-home exam, a maximum of 5% of the text may
be quoted.

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12. When answering the take-home exam questions, remember that an open-book exam is
a test at a higher level than the usual type of exam, where memory is tested as much
as insight. In an open-book exam, you need not memorise any information. You are
expected to prove that you can use information, rather than merely repeat it. In brief,
what is being tested is factual knowledge, understanding and the correct application
thereof, not memory skills. For this reason, you do not earn marks by merely detailing
a list of all the information that you think might be relevant to a particular question. This
gives no indication that you know what statutory or other provisions are applicable in a
specific context. You are expected to identify precisely what information applies, and
then explain why you think so.

12.1 Also, because you have the guide available when answering questions, we do not give
marks for direct quotations from the guide. You are therefore assessed on your level of
understanding of the legal principles by looking at how well you applied the principles
to the questions.

12.2 PLEASE DO NOT CUT AND PASTE ANSWERS FROM THE STUDY GUIDE (OR ANY
OTHER SOURCE).

13. The arguments that you make must be logical, well-structured and substantiated by all
of the relevant legal principles. Use the time given wisely.

13.1 Ensure that you give reasons for each answer. Substantiate your answers by referring
to ALL of the relevant authorities, e.g. sections from relevant legislation and/or court
cases in the text or in your footnotes.

13.2 You are required to have read and summarised the prescribed cases yourself. The
summaries in the Study Guide are not sufficient for this exam. When using case law to
support your answer, please include complete references to the relevant cases in your
footnotes. This means that you must not only include the name of the case but also the
exact page and section and/or paragraph where the information can be found. The
same applies to articles and books used.

13.3 A number of students lose marks because they do not approach problem-type questions
correctly. When answering such questions, it is important to first clarify for yourself the
area of work where the answer must be sought. Once you have done this, set out the
relevant legal principles. Deal only with those principles that relate to the given facts.
Next, apply these principles to the facts. This is where most of the students lose marks
- they set out the law in some detail, but then do not illustrate how it applies to the factual
situation they have been asked to solve. Finally, state your conclusion.

14. You must complete the online declaration of own work when submitting.

14.1 By ticking the Honesty Declaration, you confirm that you have read (i) the
University’s Policy on Copyright Infringement and Plagiarism and the Student
Disciplinary Code, which are both available on myUnisa: www.unisa.ac.za/unisarules,
and (ii) the information relating to student values and plagiarism that is found at
https://www.unisa.ac.za/sites/myunisa/default/Study-@-Unisa/Student-values-and-
rules.

14.2 Students suspected of dishonest conduct during the examinations will be subjected to
disciplinary processes. Students may not communicate with other students, or request
assistance from other students during examinations. Plagiarism is a violation of
academic integrity, and students who do plagiarise or copy verbatim from published
work will be in violation of the Policy on Academic Integrity and the Student Disciplinary

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Code and may be referred to disciplinary hearing. Unisa has a zero tolerance for
plagiarism and/or any other forms of academic dishonesty.

14.3 Unless a student is exempted because of disability or incarceration, students who have
not utilised invigilation or proctoring tools will be deemed to have transgressed Unisa’s
examination rules and will have their marks withheld.

PLEASE NOTE:

If you experience challenges with the Invigilator app, please send a WhatsApp message to
the technical helpdesk on 073 505 8273. Do not contact the lecturers.

For all other exam-related challenges, you may contact the SCSC on 080 000 1870 or e-mail
[email protected] or refer to Get-Help for the list of additional contact numbers.

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MRL3702
October/November

QUESTION 1

Nhlana Attorneys & Associates (NAA) runs a law firm in the East Rand which is part of
Gauteng Province. It has three candidate attorneys, Kryshna, Thandi and Piet. In the first
quarter of 2022, Kryshna and Thandi fell pregnant and subsequently took maternity leave
towards the end of the third quarter of 2022. Effectively, by the 1 st of October 2022, NAA
had only Piet as the candidate attorney and thus he had to carry by himself the entire
workload meant for all candidate attorneys. Practically, Piet was able to manage the
workload alone for the duration of Kryshna and Thandi’s maternity leave so much that
NAA decided to terminate the services of both Kryshna and Thandi as it believes that
keeping them is costly, particularly, because of their absence due to maternity leave.
When Kryshna and Thandi received the news of the abrupt termination of their contracts
of employment on the 30th of December 2022, they got worried and sought legal advice.

Answer the following questions:

(a) (i) With reference to the applicable legal authority, explain what the conduct
of NAA towards both Kryshna and Thandi amounts to? (5)

(ii) Define the concept you mentioned as the answer to question (a)(i) above.
(8)

(iii) What would be the possible remedies for Kryshna and Thandi should they
decide to refer their case to the CCMA? (6)

(b) Distinguish between the contemporaneous and historical inconsistencies insofar

as the employer’s disciplinary power over its employees is concerned. (6)
[25]
QUESTION 2

Sbu-On-the-Wireless (SOW) employs a hundred employees, half of whom are males, and
another half are females. The main business of SOW is advertising, news reading, talk
shows and entertainment. In line with the affirmative action goals set out in the EEA, all
the designated employers must develop an employment equity plan to ensure equality in
the workplace.
Answer the following questions:

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8 MRL3702
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(a) (i) Who are ‘designated employers’ for the purpose of affirmative action? (10)
(ii) Does SOW fit the description of the designated employer and why?
(2)
(iii) Distinguish between the formal approach to equality and the substantive
approach to equality? (6)

(b) Assume that Angela, a very experienced newsreader, retires and, in her place,
SOW puts, Chantel, a new graduate from UNISA with no experience, but on the
terms and conditions that are more lucrative than Albert and 20 other employees
with comparably the same experience as Angela. When asked why experienced
employees were ignored over Chantel, SOW simply stated that, ‘she is young and
has a future ahead of her’. Albert and others think that SOW’s conduct amounts to
a prohibited and unfair ‘employment practice or policy’.

Which ‘employment practices or policies’ are regarded as unfair and prohibited

against the employees in terms of the EEA? (7)
[25]
QUESTION 3

The LRA makes provision for organisational rights to enable the trade union to engage
effectively in collective bargaining with the employer. Amongst organisational rights,
there is the right of disclosure of information. Kanana Workers Union (KWU) is a newly
found trade union which represents employees at Primary Food SA (Pty) Ltd (PFSA).
KWU accuses PFSA of refusing to bargain with it.

Answer the following questions:

(a) Which conducts by the employer amount to a refusal to bargain in terms of the
LRA. (10)
(b) Discuss the circumstances under which certain information cannot be disclosed or
withheld by the employer for the purposes of bargaining. (8)
(c) Discuss the ways in which a trade union may acquire organisational rights? (6)

(d) What is the primary goal of collective bargaining? (1)

[25]

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9 MRL3702
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QUESTION 4
Amandanis Aero (Pty) Ltd (AA) and Workers Union (WU) have reached a stalemate
during wage negotiations. WU demanded a 7% wage increase across the board, whilst
AA offered 3%. On the one hand, in support of its wage increase demand, WU mentioned
the high food and fuel prices. WU further argued that the employer’s offer was way less
than the consumer price index (the CPI). On the other hand, the employer baldly argued
affordability as its challenge, but refused to share the business financial statements. WU
condemned AA’s approach as egocentric and in bad faith towards the toiling employees.

Answer the following questions:

(a) With reference to the relevant legal authority, discuss whether South African labour
law requires parties to bargain in good faith? (8)
(b) Assume that, in retaliation to what they call bad faith bargaining by the employer,
WU members continue to work at a slow pace daily. With reference to the relevant
legal authority, discuss whether WU’s slow-paced strategy amounts to a strike?
(5)
(c) Discuss instances under which WU employees may not be allowed to strike? (12)
[25]
TOTAL: [100]

FIRST EXAMINER : ADV KL KUBJANA

SECOND EXAMINER : PROF ME MANAMELA

©
UNISA 2022

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10 MRL3702
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ANNEXURE A

PLAGIARISM DECLARATION

Student name:

Student number:

Course code:

I know that plagiarism is to use another’s work and pass it off as one’s own work.
I know that plagiarism is wrong.
I confirm that this portfolio is my own work.
I have acknowledged all sources that I have used.
I have not directly copied anything from the internet or from any other source.
I have indicated every quotation and citation in a footnote or bracket linked to that
quotation.
I have not allowed anyone else to copy my work so as to pass it off as their work.
I understand that if any unacknowledged copying whatsoever appears in my portfolio,
I will receive 0% for the portfolio.
I am aware of the UNISA policy on plagiarism and understand that disciplinary
proceedings can be instituted against me by UNISA if I contravene this policy.

Signed by …………………………………….

Date .............................................

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11 MRL3702
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MRL3702 October November 2022 MEMO

QUESTION 1

(a) (i) The conduct of NAA towards both Kryshna and Thandi amounts to unfair
discrimination on the grounds of pregnancy and maternity leave. According to Section
6(2)(a) of the Labour Relations Act (LRA), it is unfair discrimination for an employer to
dismiss a female employee due to her pregnancy or any reason related to her
pregnancy. In this case, NAA terminated the services of Kryshna and Thandi due to
their absence on maternity leave, which is directly related to their pregnancy.

(ii) The concept mentioned in (a)(i) above is unfair discrimination. Unfair discrimination
refers to treating employees differently on arbitrary grounds such as race, gender,
pregnancy, and other grounds listed in Section 6(1) of the LRA. Discrimination based
on pregnancy or maternity leave is specifically prohibited under Section 6(2)(a) of the
LRA.

(iii) The possible remedies for Kryshna and Thandi should they decide to refer their
case to the CCMA (Commission for Conciliation, Mediation, and Arbitration) include:

1. Reinstatement: NAA may be ordered to reinstate Kryshna and Thandi to their

previous positions or equivalent positions with full employment benefits.

2. Compensation: The CCMA may award compensation to Kryshna and Thandi for the
unfair dismissal, which can include payment of lost wages and any damages suffered
as a result of the dismissal.

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3. Compensation for unfair discrimination: In addition to compensation for unfair

dismissal, Kryshna and Thandi may also be entitled to compensation for the unfair
discrimination they experienced based on their pregnancy and maternity leave.

(b) Contemporaneous and historical inconsistencies refer to different aspects of an

employer's disciplinary power over its employees:

1. Contemporaneous inconsistencies: These occur when the employer applies

different disciplinary measures or penalties for similar misconduct committed by
different employees at the same time or in close proximity. For example, if two
employees commit the same offense, and one is severely reprimanded while the other
receives a minor warning, it would be a contemporaneous inconsistency.

2. Historical inconsistencies: These occur when the employer applies different

disciplinary measures or penalties for similar misconduct committed by different
employees at different times. For example, if an employer had previously issued minor
warnings for the same offense committed by other employees, but suddenly decides
to dismiss an employee for the same offense, it would be a historical inconsistency.

In both cases, inconsistency in disciplinary actions can be unfair and potentially lead
to claims of unfair labor practice. It is important for employers to apply consistent
disciplinary measures to avoid potential disputes and ensure fairness in the workplace.

QUESTION 2

(i) 'Designated employers' for the purpose of affirmative action are employers who
meet the following criteria:

- They employ 50 or more employees, or

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- They employ fewer than 50 employees but have a total annual turnover that is equal
to or above the relevant amount specified in Schedule 4 of the Employment Equity Act
(EEA).

(ii) SOW fits the description of a designated employer if it employs 50 or more

employees. Since SOW employs a hundred employees, it meets the first criteria for
being a designated employer for the purpose of affirmative action.

(iii) The formal approach to equality focuses on equal treatment and non-discrimination
in terms of the law. It promotes the idea that everyone should be treated the same,
regardless of their individual circumstances or needs. In the context of employment
equity, this could mean implementing policies and procedures to ensure that all
employees are treated equally in terms of recruitment, promotions, and access to
training and development opportunities.

On the other hand, the substantive approach to equality acknowledges that treating
everyone the same may not lead to true equality, as certain individuals or groups may
need additional assistance or support to overcome historical disadvantages. It
recognizes that equality may require taking proactive measures to address existing
inequalities and promote equal opportunities. In the context of employment equity, this
could involve implementing affirmative action measures to increase the representation
of designated groups (such as women, people with disabilities, and historically
disadvantaged individuals) in the workplace.

b.

In this scenario, there are two potential employment practices or policies that could be
regarded as unfair and prohibited under the Employment Equity Act (EEA):

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1. Discrimination based on age: The fact that SOW gave significant preference to
Chantel, a new graduate, solely because she is young and has a future ahead of her,
implies that the company engaged in age discrimination. The EEA prohibits unfair
discrimination in employment on the grounds of age.

2. Discrimination based on experience: By offering Chantel more lucrative terms and

conditions compared to Albert and the other 20 employees with similar experience as
Angela, SOW may have engaged in discrimination based on experience. The EEA
prohibits unfair discrimination in employment on the grounds of experience.

Both of these practices could be considered unfair and prohibited under the EEA, as
they create an unequal and unjust treatment of employees based on age and
experience.

QUESTION 3

(a) The following conducts by the employer may amount to a refusal to bargain in
terms of the LRA:

1. Ignoring or disregarding requests by the trade union to engage in collective

bargaining.

2. Deliberately evading or avoiding meetings or negotiations with the trade union.

3. Imposing unrealistic preconditions or requirements for bargaining.

4. Making unilateral decisions or changes to terms and conditions of employment

without consulting or negotiating with the trade union.

5. Refusing to provide relevant information requested by the trade union for the
purpose of collective bargaining.

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6. Taking actions that undermine or hinder the trade union's ability to engage
effectively in collective bargaining, such as threatening or intimidating employees who
support the union.

(b) Certain information may be withheld or not disclosed by the employer for the
purposes of bargaining under the following circumstances:

1. When the information is confidential or commercially sensitive and its disclosure

could harm the employer's competitive position or business interests. This may include
trade secrets, strategic plans, or financial information.

2. When the disclosure of the information would violate any legal or contractual
obligations, such as the protection of personal information or attorney-client privilege.

3. When the information is not directly relevant or necessary for the bargaining
process. The employer may argue that the requested information is not related to the
terms and conditions of employment or the issues being negotiated.

4. When the information is already in the possession of the trade union or is publicly
available. In such cases, the employer may argue that there is no need to disclose
information that is already known or accessible to the trade union.

(c) A trade union may acquire organizational rights through various ways, including:

1. Recognition agreements: Trade unions can negotiate and enter into agreements
with employers that recognize the union as the representative of employees for
collective bargaining purposes. These agreements may include provisions for the
rights and responsibilities of the union, as well as the procedures for collective
bargaining.

2. Voluntary recognition: An employer may voluntarily recognize a trade union as the

representative of employees without the need for formal negotiations or agreements.

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This usually occurs when the majority of employees have shown their support for the
union through membership or other means.

3. Statutory recognition: In certain circumstances, trade unions may be entitled to

statutory recognition based on the number of members or the level of support among
employees. Statutory recognition can be obtained through processes such as a
verification or a certification process conducted by a recognized authority.

4. Court orders or rulings: Trade unions may seek legal intervention and obtain court
orders or rulings that grant them organizational rights, especially when the employer
refuses to recognize or engage in collective bargaining.

(d) The primary goal of collective bargaining is to reach agreement between the trade
union and the employer on the terms and conditions of employment, as well as other
matters related to the employment relationship. This includes negotiating wages,
working hours, leave entitlements, job security, and grievance procedures. The aim is
to find a mutually acceptable solution that balances the interests and needs of both
parties, ensuring fair and equitable outcomes for employees while also taking into
account the employer's business interests and economic sustainability.

QUESTION 4

(a) With reference to the relevant legal authority, discuss whether South African labour
law requires parties to bargain in good faith?

In South African labour law, parties are indeed required to bargain in good faith. The
Labour Relations Act (LRA) provides the legal framework for collective bargaining and
sets out the duties and obligations of both employers and trade unions during this
process.

Section 34 of the LRA stipulates that parties to a collective agreement must conduct
their negotiations in good faith. This means that they must act honestly, fairly and

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without any intention to undermine or frustrate the bargaining process. The obligation
to bargain in good faith includes the duty to disclose relevant information, to respond
to proposals made by the other party, and to consider and give reasons for rejecting
any proposals.

The requirement to bargain in good faith is also emphasized in the Code of Good
Practice on Collective Bargaining, which provides further guidance on the principles
and practices to be followed during negotiations. The Code states that parties should
approach negotiations without preconditions, engage in meaningful discussions, and
make every effort to reach an agreement.

In the case of Bramley and Others v International University Contact Africa (Pty) Ltd
and Others, the Labour Court held that parties must negotiate with an open mind and
should not merely go through the motions of bargaining while having no real intention
of reaching an agreement.

Therefore, based on the relevant legal authority, it is clear that South African labour
law requires parties to bargain in good faith, which includes acting honestly, fairly, and
without any intention to frustrate the bargaining process.

(b) Assume that, in retaliation to what they call bad faith bargaining by the employer,
WU members continue to work at a slow pace daily. With reference to the relevant
legal authority, discuss whether WU’s slow-paced strategy amounts to a strike?

In South African labour law, a strike is defined as "the partial or complete concerted
refusal to work, or to continue to work, or to accept work offered" (Section 213 of the
Labour Relations Act). Therefore, for WU's slow-paced strategy to be considered a
strike, it must meet the criteria of a concerted refusal to work.

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In the case of National Union of Metalworkers of South Africa v Henry Tayob and
Associates CC, the Labour Appeal Court held that a "go-slow" can be considered a
strike if it involves a concerted and deliberate effort by employees to disrupt production
or operations by working at a deliberately reduced pace.

However, in order for the slow-paced strategy to be classified as a strike, it must also
meet the requirement of being a collective action. This means that a significant number
of employees must engage in the slow-paced strategy at the same time.

Therefore, if WU members are engaging in a concerted and deliberate effort to work

at a reduced pace, with the intention of disrupting production and operations, and if a
significant number of members are participating, then their slow-paced strategy can
amount to a strike under South African labour law.

(c) Discuss instances under which WU employees may not be allowed to strike?

There are certain instances in which WU employees may not be allowed to strike, as
provided for in South African labour law. These include:

1. Protected strike period: According to Section 65(1) of the Labour Relations Act, a
strike is only protected if it occurs during the currency of a bargaining council or
statutory council's collective agreement, or within 30 days after the expiry of such an
agreement. Therefore, if the WU employees are outside of the protected strike period,
their strike may not be allowed.

2. Dispute resolution procedures: Before resorting to a strike, employees and their

union are required to engage in dispute resolution procedures. These procedures may
include conciliation or arbitration through a bargaining council or the Commission for
Conciliation, Mediation, and Arbitration (CCMA). If the dispute has not been referred

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to the CCMA or if the prescribed dispute resolution procedures have not been
followed, the strike may not be allowed.

3. Essential services: Essential services are defined by the Essential Services

Committee and may include sectors such as healthcare, water and sanitation,
electricity supply, and transportation. Employees in essential services are prohibited
from striking, as their absence from work can have a severe impact on the public or
national interest.

4. No-contractual obligation to refrain from striking: In some cases, employees may

have signed contracts or agreements that contain a clause prohibiting them from
participating in strikes. If such a clause exists and is valid, the employees may not be
allowed to strike.

It is important to note that each situation is unique, and the specific circumstances and
relevant legal provisions should be considered to determine whether WU employees
may or may not be allowed to strike in their particular case.

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MAY/JUNE 2022

MRL3702
LABOUR LAW
100 marks

4 Hours Portfolio Examination

Examiners: Adv LK Kubjana

Prof ME Manamela

This paper consists of 9 pages

INSTRUCTIONS FOR A PORTFOLIO OR TAKE-HOME EXAM ON MYEXAMS

PLEASE READ THE FOLLOWING INSTRUCTIONS CAREFULLY BEFORE ANSWERING THE

EXAMINATION QUESTIONS.

 Note that this module uses the Invigilator App. The QR code is included below.

Instructions:

1. The examination question paper counts 100 marks.

2. It consists of FOUR questions. Answer ALL of the questions.
3. The duration of the examination is 4 hours. Your answers must be submitted via myUnisa on 25
May 2022 at or before 12:00 (South African Standard Time).
4. This is an open-book examination. You may consult your prescribed study material during the
examination. While the examination is in progress, you are not allowed to consult another person or
any source in order to assist you to answer any of the questions contained in this question paper.
While the examination is in progress, you may not assist another student in answering any of the
questions contained in this question paper.
5. Your answer to this portfolio or take-home examination must be submitted online on the myExams
platform.
5.1 Access myExams at https://myexams.ac.za/portal and login using your student number and myUnisa
password.
5.2 Go to your specific examination site through the site tabs on the horizontal navigation bar. Also check
your Sites link in the top right-hand corner if you do not find the site on the horizontal navigation bar.
5.3 Once the site has loaded, select the eAssessment tool from the left-navigation menu.
5.4 The list of all available assessments in the site will be displayed.
5.5 Select the assessment for which you want to upload the examination answer file by clicking on
the title of the assessment in the list. A new page will open.
5.6 Submit your examination answer file

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Depending on the assessment criteria, you may be allowed to attach a file or perhaps multiple files.
Under Attachments, click the Choose File button to browse for a file on your device.

Once you have attached your answer file, the name of the file, as well as the file size and upload
time stamp will be displayed under Attachments.

Tip: You may click Remove to remove the attachment if you selected the wrong file.

Tip: Select the honour pledge. Students MUST check the honour pledge before submission if it
appears on the screen. A student will not be able to submit the assessment if he/she did not check
the honour pledge.

When you are ready and satisfied that you have a correct answer file, click the Submit button to
complete your assessment submission.

Tip: If you are not yet ready to submit, you may click Preview to preview the submission, or Save
Draft to save your submission and submit it later. Click Cancel to exit the assessment without saving
or submitting.

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5.7 Submission confirmation

Once you have submitted your assessment, you will receive a confirmation message on the screen.
Make a screen copy for your records. In addition, if you have opted to receive email notifications, you
will also receive an email confirmation of your submission.

6. The cover page to your take-home exam must include your name, student number and the module
code.
7. It is preferred that your take-home exam is typed, however, handwritten submissions will also be
accepted. If the take-home exam is typed, the maximum length is 10 pages (which includes the
cover page and the bibliography). If the take-home exam is handwritten, maximum length is 12
pages (which includes the cover page and the bibliography).
8. Whether your answers are typed or handwritten, your submission on myUnisa must be made in the
form of one PDF document. Remember NOT to password protect your portfolio.
9. If your answers are typed, ensure that the following requirements are adhered to. Items 9.3-9.6
apply to written assignments as well.
9.1 The text must be typed in Arial font, size 12 with single line spacing within the paragraph, and double
line spacing after the paragraph.
9.2 The text must be justified.
9.3 All of the pages must be numbered in the bottom right hand corner of the page.
9.4 All margins must be 2.5cm, but the left margin must be 3cm.
9.5 South African English and not American English should be used. For example, the correct spelling
is “Labour” and not “Labor”.
9.6 Do not use abbreviations or SMS language.
9.7 All quotes that are two lines long (or less), must form part of the main text, be written in italics, and
be bracketed by quotation marks. Where a quotation is longer than two lines, it must be typed in a
separate paragraph in italics in size 11 font and must be indented by 1 cm. No quotation marks are
required when the quotations stand alone. Use quotations very sparingly. In this take-home exam, a
maximum of 5% of the text may be quoted.
10. When answering the take-home exam questions, remember that an open-book exam is a test at a
higher level than the usual type of exam, where memory is tested as much as insight. In an open-
book exam, you need not memorise any information. You are expected to prove that you can use
information, rather than merely repeat it. In brief, what is being tested is factual knowledge,
understanding and the correct application thereof, not memory skills. For this reason, you do not
earn marks by merely detailing a list of all the information that you think might be relevant to a
particular question. This gives no indication that you know what statutory or other provisions are
applicable in a specific context. You are expected to identify precisely what information applies, and
then explain why you think so. You are therefore assessed on your level of understanding of the
legal principles by looking at how well you applied the principles to the questions. PLEASE DO NOT
CUT AND PASTE ANSWERS FROM YOUR STUDY MATERIAL (OR ANY OTHER SOURCE).

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11. The arguments that you make must be logical, well-structured and substantiated by all of the relevant
legal principles. You are given 4 hours to complete the take-home exam. Use the time given wisely.
11.1 Ensure that you give reasons for each answer. Substantiate your answers by referring to ALL of the
relevant authorities, e.g. sections from relevant legislation and/or court cases in the text or in your
footnotes.
11.2 A number of students lose marks because they do not approach problem-type questions correctly.
When answering such questions, it is important to first clarify for yourself the area of work where the
answer must be sought. Once you have done this, set out the relevant legal principles. Deal only
with those principles that relate to the given facts. Next, apply these principles to the facts. This is
where most of the students lose marks - they set out the law in some detail, but then do not illustrate
how it applies to the factual situation they have been asked to solve. Finally, state your conclusion.
You must attach a signed plagiarism declaration to your exam. Exam scripts sent without signed
plagiarism declarations will not be marked. Find a copy of the declaration at the end of the portfolio
under ANNEXURE A.
12. You must attach a signed plagiarism declaration to your exam. Exam scripts sent without signed
plagiarism declarations will not be marked. Find a copy of the declaration at the end of the portfolio
under ANNEXURE A.
13. Take note of the following abbreviations in the portfolio:

 The Labour Relations Act 66 of 1995 is referred to as the ‘LRA’.

 The Basic Conditions of Employment Act 75 of 1997 is referred to as the ‘BCEA’.
 The Commission for Conciliation, Mediation and Arbitration is referred to as the ‘CCMA’

PLEASE NOTE:
If you experience technical problems, of any kind, on the day of the examination and your examination
answers are not submitted by the cut-off time, you will be marked as absent. No other type of submission
of your examination answers will be accepted. This means that emailed submissions will not be
accepted for marking.

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MRL3702
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QUESTION 1

1.1 Selina worked for GM Hairdo (Pty) Ltd (‘GMH’) as a hairdresser until 2019 when the
business was forced to close due to COVID-19. Two years later, the business
reopened, however, Selina did not return to GMH, instead, she decided to start her
own salon in the neighborhood. GMH thinks that it is unfair that Selina could operate
a similar business in the neighborhood as that would negatively affect the customer
base GMH has built over a long period. Selina argues that business is about
competition and that both businesses must compete for customers. Labour Law
students debated about this issue and some think that GMH is greedy because
business is all about competition, while others think that GMH has a legal ground to
have Selina relocate her business elsewhere.
Discuss whether GMH has any legal remedy to use in order to have Selina relocate
her salon business elsewhere. Your answer must include the following:
 the legal remedy; (2)
 how that legal remedy operates; (10)
 the fairness or otherwise of that legal remedy (5)
 relevant legal authority (3)

1.2 Lemao and Gare are engaged in an argument on how much remuneration is paid to
an employee who has taken three weeks’ annual leave. On the one hand, Lemao
argues that, the payment is determined by the Unemployment Insurance Fund and
that nobody knows about the exact amount. On the other hand, Gare argues that,
the payment is 25% of the normal monthly salary because an employee would have
stayed away from work for three weeks and that, this is not only fair but, is also in
line with the commercial language that says, ‘value for money’.
Advise based on the applicable provision of the BCEA whether the above arguments
are correct regarding the remuneration the employers are required to pay an
employee who has taken annual leave and why. (5)
[25]

QUESTION 2

The LRA provides for the following three grounds upon which an employer may rely on to
dismiss employees: misconduct, operational requirements and incapacity. However, the
LRA further requires that all dismissals should be fair in both substance and procedure.
Answer the following questions:
(a) Discuss the procedural steps which the employer is required to follow for the
dismissal of an employee on the ground of misconduct to be fair. (16)

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MRL3702
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(b) Distinguish between ‘desertion’ and ‘abscondment’ from work by the
employee. (4)
(c) Dismissal is only one of a number of penalties that the employer can impose
against an employee who has committed misconduct.
List five (5) examples of other penalties that may be imposed against an
employee charged with misconduct. (5)

[25]

QUESTION 3

3.1 Steno & Stelma (Pty) Ltd (‘SS’) and Fyn Boss (Pty) Ltd (‘FB’) are not only trading in
the automotive industry, but they are also adjacent to each other. SS assembles and
sells cars, while FB produces and sells car rubber parts and tyres to different car
manufacturers, including SS. SS employees are engaged in a strike which has been
going on for two weeks, because SS refused the employees’ demand for a 10%
salary increment. On the third week, the strike gained momentum as employees of
FB also engaged in a strike in support of employees of SS.

Answer the following questions with reference to the relevant legal authority:

(a) Distinguish between the nature of strikes engaged in by the employees of SS

and employees of FB. (2)

(b) Discuss the necessary procedure to be followed by employees of FB before

they can engage in their strike. (6)

(c) Assume that both strikes are protected. Are there any reasons in terms of
Labour Law which SS and FB may rely on to dismiss employees engaged in
the strikes? (3)

(d) Distinguish between a ‘lock out’ and a ‘protest action’ with reference to their
purposes. (4)

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3.2 With reference to the relevant legal authority, discuss the purpose and the
consequences of providing prior notice when employees or the employer intends to
engage in a strike or lock-out. (8)

3.3 Who presides over the CCMA matters? (2)

[25]

QUESTION 4

Dracula T (Pty) Ltd (‘DT’) is a poultry farm in Alexandra township, west of Gauteng province.
DT rears and sells chickens to established grilling houses in the country. It has two trade
unions with members in the workplace namely, the People’s Union (‘PU’) and Members
Union (‘MU’). The former is the majority union and the latter is the minority union. Both PU
and MU need organisational rights in order to effectively bargain for their respective
members’ interests within the workplace.

Answer the following questions with reference to the relevant legal authority:

(a) Explain which of the organisational rights should be granted to PU and MU

respectively. (10)

(b) What is your understanding of the concept: ‘collective bargaining’? Your answer
must contain the following:
 what collective bargaining entails; and (4)
 the purpose of collective bargaining. (1)

(c) Assume that Minnie is a senior manager at DT. Discuss whether Minnie is also
entitled to join and partake in trade union activities. (10)
[25]
TOTAL: [100]

©
UNISA 2022

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MRL3702
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ANNEXURE A

PLAGIARISM DECLARATION

Student name:

Student number:

Course code:

I know that plagiarism is to use another’s work and pass it off as one’s own work.
I know that plagiarism is wrong.
I confirm that this portfolio is my own work.
I have acknowledged all sources that I have used.
I have not directly copied anything from the internet or from any other source.
I have indicated every quotation and citation in a footnote or bracket linked to that
quotation.
I have not allowed anyone else to copy my work so as to pass it off as their work.
I understand that if any unacknowledged copying whatsoever appears in my portfolio,
I will receive 0% for the portfolio.
I am aware of the UNISA policy on plagiarism and understand that disciplinary
proceedings can be instituted against me by UNISA if I contravene this policy.

Signed by …………………………………….

Date .............................................

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MRL3702 Exam

Lynn Oosthuizen
67798888

25 May 2022

Answer 1

1.1) GMH could rely on the restraint of trade clause. This clause is included in
employment contracts to protect the employer's interests, the trade secrets, and the
overall goodwill of the business. This clause also prohibits employees from
competing with their former employer within a specific demographic and period.
To determine if GMH can enforce such a remedy, two considerations will be looked
at:
• The public interests and the right for individuals to engage in their profession
of choice.
The reasonableness of the clause and restraint will be looked at to determine
validity.
• Is there an interest from GMH that should be looked at?
• Is that interest being prejudiced?
• If it is being prejudice, how does the interest weigh up towards the party not to
work?
• Is there any other public policy that requires the restraint?
• Is the restraint by GMH wider than necessary to protect their interest?
These questions are important to show that this remedy has grounds for justification.

In Magna Alloys & Research the courts held that the restraint of trade agreement is
only valid and enforced if it is in line with the public policy. The restraint clause will be
unenforceable it is unreasonable.
GMH was forced to close its doors due to Covid 19 and only opened its doors 2
years later. Although Selina worked for this company, she was forced to leave due to
the company closing its doors due to financial complications, GMH’s restraint will be
viewed as being wider than necessary and not within the public's interest.

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The courts will dismiss the restraint, as fair competition is allowed. Selina has the
right to engage in her profession of choice.

1.2) An employee is intituled to no less that 2 weeks annual leave according to the
BCEA. Annual vacation leave is a minimum of 21 consecutive days, or 15 working
days paid leave per year.
Neither the BCEA or any other form of law prescribes the minimum or prescribed
wages. Collective agreement concluded in the bargaining councils and the
ministerial, sectoral determinations will set out the minimum wage for categories of
employees. The decided wages should be paid in SA Rands and the employer must
provide the employee with a written letter including the period in which the payment
is made, the amount and reason for any deductions.

Answer 2

A) The LRA encourages and supports the principles of progressive discipline.

The procedural steps for fair dismissal for misconduct is regulated by Section 188 of
the LRA, the dismissal of the misconduct must have a fair reason and there should
be procedural fairness. Section 188(2) provides that any person considering whether
a dismissal of misconduct is fair must take the relevant code of good practice issued
by the LRA into consideration. An employee is at fault for breaking a workplace rule
and his/her employer is considering dismissal based on misconduct. In order to do
so the workplace rule or rules broken should be found in the disciplinary code of the
workplace, rules like theft, assault etc. The rules provided must be lawful, it should
justify the needs and situation of the business, the employee should also be aware of
such rules, there should be consistent applications of such rules in the workplace.
There should be no Historical or contemporaneous inconsistency for example the
employer cannot let the employee get away with certain misconduct and then
suddenly decide to proceed punishment against the employee, the employer may
also not punish only two employees for a certain misconduct when five of the
employees broke such rules at the same given time. The dismissal should also be
appropriate and seen as the last resort, the employer cannot dismiss an employee
for his first offence unless the misconduct is so severer that the relationship between
the employer and employee is intolerable.
Whether the dismissal is fair will depend on the circumstances (length of service,
previous disciplinary records) and the personal circumstances. The nature of the job
and the infringement itself will also be considered.

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B) Desertion: the employee has the intention of terminating his/her employment

contract without resigning. The employer will terminate the contract by holding a
disciplinary hearing in the employee's absence. If the employee decides to return the
employer will give him an opportunity to be heard.

Absconding: means that the employee is absent from work for such a period
that they might not or do not intend to return, the duty of an employee is to render his
service to the employer if he/she does not arrive at work to do so, he/she will be in
breach of contract.

C)
• Counselling
• Warnings
• Informal correction
• Suspension
• Demotion (pay cut)

Answer 3
3.1)
A) Primary and Secondary Strike.

B) Employees of FB must follow the requirements for a secondary strike.:

• The second strike will only be authorized if the first primary strike was
protected.
• The employer must be given a 7-day written notice prior to the secondary
strike. However, if the strike is about dismissal and operational requirements,
14-day notice must be provided.
• The nature and extent of the secondary strike must be reasonable and in
proportion with the primary strike.

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These requirements ensure that the secondary employer does not suffer any harm
formed by the secondary strike. Should the secondary strike in anyway not meet the
requirements the Labour Courts will provide an interdict to prevent or limit such a
secondary strike.

C) If the strike continues beyond the point where the employer agreed to,
misconduct during a protected strike may be the subject of appropriate disciplinary
action and if the strike is no longer functional to collective bargaining and that it does
not hold up the legitimate purpose of collective bargaining.

D) The LRA defines Lock out as the exclusion by an employer of the employees to
enter the workplace, for the sole purpose of compelling them to accept a demand
regarding any matter of mutual interest.

A protest action is the refusal to work or the obstruction of work to promote or defend
the socio-economic interest of the workers. The protection strike supports political
matters and is not authorized by the LRA.

3.2) Once conciliation(resolution of dispute) has been deemed unsuccessful a 48-

hour written notice must be provided to the employee before the commencement of
any strike or lockout. Where the state is involved with an upcoming strike or lockout,
a 7-day notice must be provided.
These notices allow the employer and state to prepare for the impending strike. If the
dispute is in relation with the collective agreement, the notice must be given to the
council. If the employer is a member of the organisation to the dispute, the notice
must be given to the employers' organisation.
For the proposed lock out the notice must be given to any trade union that is a party
of the dispute. If the dispute is in relation to a collective agreement in a bargaining
council the notice must be given to the council.
The LRA does not provide what information must be written in such a notice, the only
requirement is the 48 hours or 7 days provided.
If no notice is provided, the legal consequences can be in a form of an interdict,
claim for compensation or dismissal. The LC may also grant an interdict to stop the
action

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3.3) Commissioners at the CCMA.

Answer 4

A) The LRA provides organisational rights to the registered trade unions, to allow
trade unions to faction more effectively and to help build and support in the
workplace.
Organisation rights by the LRA:
• The right to access the premisses of the employer
• The right to have trade union fees deducted.
• The right to elect trade union representatives.
• The right to institute office bearers.
• The right to disclosure of information.

Whether or not the PU and MU union is entitled to such rights depends on its level of
representativity.

Majority representation: a union representing 51% and more are entitled to 5

organisational rights.

Sufficient representation: a union representing about 30% are entitled to access the
workplace, deduct fees and office bearers.

Union as a member of a bargaining council: they have access to the workplace and
deduction of fees.

Minority union: may enforce their rights through collective bargaining or industrial
actions.
PU and MU’s rights depend on their representation and in what category of union
they fall under (as explained above)

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These rights can also be acquisitioned by collective agreement, bargaining council,

through strike action or through the Section 21 procedure.

B) Collective bargaining can be defined as the process in which the trade unions,
employers or their organisations negotiate and bargain the terms and
conditions of any employment matter (given there is mutual interest).
Collective bargaining considers representations by the parties to find common
ground. The collective agreement helps to regulate the rights and duties of all
parties. Collective bargaining encourages workers to participate in joint
decision making to ensure mutual interest in the workplace.

C) Section 23 protects the freedom of association of workers, employers, trade

unions and employer organisations. Every employee can join and participate
in any activities by the trade union.
Managerial employees like Minnie have limited freedom of association, they may join
a trade union but is encouraged to balance their right to freedom with their common
law fiduciary duties (acts in good faith) towards the other employees. If Minnie were
to reveal any information that he/she obtains because of his/her senior position to
the trade union, Minnie will be given a disciplinary action against him/her.
In Imata & others v Rustenburg Council, it was establishing that although a senior
manager cannot be prevented from joining a union, he or she must act in good faith
towards the other employees, he or she cannot be dismissed from the right to
freedom of association.

Minnie will be expected to keep the information that could potentially harm another
party disclosed and handle it in a professional manner.

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JANUARY/FEBRUARY 2022

MRL3702
LABOUR LAW
100 marks

24 Hours Portfolio Examination

This paper consists of 5 pages.

PLEASE READ THE FOLLOWING INSTRUCTIONS CAREFULLY BEFORE

ANSWERING QUESTIONS

(1) The examination question paper counts 100 marks. ANSWER ALL QUESTIONS.
(2) The cover page to your portfolio must include your name, student number and the module code.
(3) This is an open-book examination. You may consult your prescribed study material during the
examination. You may however not consult another person to assist you answer questions. You
may also not assist another student in answering questions.
(4) All answers must refer to relevant legal authority.
(5) The duration of the examination is 24 hours. Your portfolio must be submitted via myUnisa on 15
February 2022 on or before 18:00). LATE SUBMISSIONS WILL NOT BE MARKED.
To submit your portfolio via myUnisa:

• Go to myUnisa.
• Log in with your student number and password.
• Select the module.
• Click on “Assignments Info” tab in the menu on the left-hand side of the screen and look
for the summative assessment which is classified as a ‘portfolio’.
• Follow the instructions to submit your portfolio.
(6) If your answers are typed, ensure that the following requirements are adhered to. Items 6.2; 6.3;
6.6 & 6.7 apply to written assignments as well:
6.1 All the pages must be numbered in the bottom right hand corner of the page.
6.2 Your exam answers must be submitted in PDF format.
6.3 Portfolio answers must not exceed ten (10) typed pages or twelve (12) handwritten pages.
Please adhere to the length restrictions. If your answer exceeds the prescribed length, we
shall stop marking when your answer reaches the page limit.
6.4 Your exam must be typed in Arial 12pt with single line spacing within the paragraph, and
double line spacing after the paragraph.
6.5 The text must be justified.
6.6 South African English and not American English should be used. For example, the correct
spelling is “Labour” and not “Labor”.

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MRL3702
January/February 2022

6.7 Do not use abbreviations or SMS language.

6.8 All quotes that are two lines long (or less), must form part of the main text, be written in
italics, and be bracketed by quotation marks. Where a quotation is longer than two lines, it
must be typed in a separate paragraph in italics in size 11 font and must be indented by 1
cm. No quotation marks are required when the quotations stand alone. Use quotations very
sparingly. In this portfolio, a maximum of 5% of the text may be quoted.
(7) When answering the portfolio questions, remember that an open-book exam is a test at a higher
level than the usual type of exam, where memory is tested as much as insight. In an open-book
exam, you need not memorise any information. You are expected to prove that you can use
information, rather than merely repeat it. In brief, what is being tested is factual knowledge,
understanding and the correct application thereof, not memory skills. For this reason, you do not
earn marks by merely detailing a list of all the information that you think might be relevant to a
particular question. This gives no indication that you know what statutory or other provisions are
applicable in a specific context. You are expected to identify precisely what information applies,
and then explain why you think so. Also, because you have the guide available when answering
questions, we do not give marks for direct quotations from the guide. You are therefore assessed
on your level of understanding of the legal principles by looking at how well you applied the
principles to the questions. PLEASE DO NOT CUT AND PASTE ANSWERS FROM THE STUDY
GUIDE (OR YOUR TEXTBOOK).
(8) You must familiarise yourself with the UNISA rules pertaining to plagiarism. Plagiarism will result
in zero marks, disciplinary action, and possible expulsion from UNISA.
(9) The arguments that you make must be logical, well-structured and substantiated by all of the
relevant legal principles. You are given 24 hours to complete the portfolio. Use the time given
wisely.
(10) Several students lose marks because they do not approach problem-type questions correctly.
When answering such questions, it is important to first clarify for yourself the area of work where
the answer must be sought. Once you have done this, set out the relevant legal principles. Deal
only with those principles that relate to the given facts. Next, apply these principles to the facts.
This is where most of the students lose marks - they set out the law in some detail, but then do not
illustrate how it applies to the factual situation they have been asked to solve. Finally, state your
conclusion.
(11) You must attach a signed plagiarism declaration to your exam. Exam scripts sent without signed
plagiarism declarations will not be marked. Find a copy of the declaration at the end of the portfolio
under ANNEXURE A.

TAKE NOTE OF THE FOLLOWING:

 The Constitution of the Republic of South Africa, 1996 is referred to as the

‘Constitution’.
 The Labour Relations Act, 1995 is referred to as the ‘LRA’.

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MRL3702
January/February 2022

QUESTION 1

(a) In a maximum of one A4 page, demonstrate with reference to two court decisions
how the principle of constructive dismissal works in an employment environment.
(15)
(b) Tiny is an employee of the Diamond Shapes (Pty) Ltd (‘DS’). DS cuts and shapes
diamond stones and sells them as wedding rings, earrings and necklaces. DS
experienced several theft incidents and the last one was in 2017. The employer
initiated investigations and the findings pointed at Tiny as the culprit because, in
all incidents no door or window was broken. DS sent Tiny the investigation report
via email with the following message - ‘based on the information in the attached
report, please be informed that you are dismissed with immediate effect.’
With reference to the relevant legal authority, advise whether Tiny’s dismissal can
stand in the CCMA or the Labour Court and whether there is any legal remedy for
Tiny. (10)
[25]

QUESTION 2

Maria is employed as a driver at Pholo Heart Hospital (‘PHH’). She delivers donated heart
organs, medication and documents between heart hospitals in and around provinces in
South Africa and earns R100 000 a month. In her contract of employment there is a
condition that, except for the observance of traffic signs and directions, drivers must only
stop at hotels or fuel stations because of the sensitive nature of the deliveries. For longer
distances, the employer often gives her an allowance to enable her to make bookings in
hotels in order to eat, sleep and continue with the trip the following day when she is
refreshed. This is meant to ensure that she does not continue driving even when she is
tired. On the 1st June, she had to make a delivery in Gqeberha, the place she found to
be very rural with only two-way and potholed routes which made her journey even longer.
She decided to pull over to the roadside in order to stretch her legs and to smoke. After
smoking she threw away the cigarette stub unaware that it was still burning, and a fire
broke out burning about seven hectares of wheat belonging to Ms Sara van der Merwe
(‘Sara’). The wheat was due for harvesting in a fortnight. Sara claimed damages for her
burnt wheat from PHH, however, PHH refused because, all drivers can only stop at hotels
or fuel stations.

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MRL3702
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Answer the following questions:

(i) With reference to the relevant legal authority, advise if there is any legal
possibility that Sara can successfully claim damages against PHH. Explain how
and why? (15)

(ii) Assume that PHH overpaid Maria with an amount of R20 000 on her salary for
July 2021 and in September PHH decided to pay Maria R20 000 less on her
salary in order to recover the July overpayment. Maria is unhappy about this
and when she complained to PHH, she was told that she was unduly enriched
through the July overpayment. With reference to the relevant legal authority,
advise Maria whether the deduction by PHH was lawful. (10)
[25]
QUESTION 3

Spring Spark (Pty) Ltd (‘SS’) runs a flower plantation in Mpumalanga and sells the
produce to a number of hotels in South Africa. It has nine (9) branches in South Africa
and employs three hundred and fifty (350) employees countrywide who work in the
plantation, harvest and deliver the produce to hotels. To become the success, it is, SS
put a clause in all its employees’ contracts which states that ‘employees must not engage
in any strike action and must also never be members of any trade union’. The inclusion
of this clause in the contract is informed by the belief it holds that, strikes negatively affect
production and reduce business profitability, whilst trade unions generally interfere with
the administration of businesses.
Discuss the lawfulness of the clause above with reference to the employees’ labour rights
in terms of the Constitution and the LRA. [25]

QUESTION 4

The South African Police Service (‘SAPS’) members who were deployed to prevent
further lootings in Gauteng and Kwazulu-Natal were neither paid an extra amount nor the
annual increment as provided in terms of a collective agreement. Attempts to get the
employer to pay them failed. After following the section 64(1) of the LRA procedure, the
SAPS members engaged in a strike in order to force the employer to pay them.

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MRL3702
January/February 2022

Answer the following questions with reference to the relevant legal authority:

(i) Discuss whether the strike in the circumstances above will be protected. (5)

(ii) Under which circumstances would the employees not be required to follow
the section 64(1) of the LRA procedure in order to engage in a protected
strike? (10)

(iii) What are the consequences available in case of an unprotected strike? (10)
[25]
TOTAL: [100]

©
UNISA 2021

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QUESTION 1

(a)

The principle of constructive dismissal works the following way in an employment

environment. According to section 186(d) of the Labour Relations Act, in the case of a
constructive dismissal, it is the employee who terminates the employment contract,
however his resignation is not voluntary, but is caused by the actions or omissions of
the employer and which made it impossible for the employee to continue working for the
employer.

According to the Copeland case the following elements must be present to succeed
with a claim for constructive dismissal: The employee must show:

. that he has resigned

. that the reason for the resignation was that continued employment became
intolerable.

. that it was the employer’s conduct that created the intolerable circumstances

. that he resigned as a result of the intolerable behaviour of the employer.

In the case of Gordon and Western Cape Education Department: the employee applied
for temporary incapacity leave due to ill health, however the employer took
unreasonably long to grant the leave and made unjustifiable deductions from his salary.
The court held the dismissal was unfair.

In Vermeulen, it was held that not all constructive dismissals are unfair. The employee
resigned after the employer changed the commission structure in the workplace, which
led to a reduction in his income. The Legal Assistance Centre found that although this
rendered the employment intolerable and amounted to a constructive dismissal, it was
not an unfair dismissal. The employer acted fairly under the circumstances where he
had to apply a uniform commission structure in the workplace.

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(b)

Tiny’s dismissal can stand in the CCMA or the Labour Court and there is legal remedy
for Tiny. This is explained below.

In dismissing an employee, the dismissal should have two fundamental characteristics.

The dismissal should be substantively fair, this meaning that the Tiny should be
dismissed for a good reason. The dismissal should also be procedurally fair, there
should have been a fair internal process/hearing of which the Applicant had enough
prior knowledge and also had an opportunity to appear, present witness, evidence and
pose questions. Tiny will also be entitled to be represented by a shop steward, union
representative or even a co-worker.

In Allpass v Mooikloof Estates (Pty) Ltd t/a Mooikloof Equestrian Centre (2011)
ZALCJHB 7, an employee was dismissed after disclosing he had several illnesses
including HIV. The court found that the employee was automatically unfairly dismissed
since the real reason for dismissal was because of the employee’s HIV status. 1

The primary remedy for unfair dismissal is reinstatement which must be ordered except
in the following circumstances, where compensation will rather be awarded:

• Where the employee does not wish to be reinstated or re-employed

• Where the circumstances surrounding the dismissal are such that a continued
employment relationship would be intolerable

• Where it is not reasonably practicable for the employer to reinstate or reemploy the
employee

• Where the dismissal is unfair only because the employer did not follow a fair
procedure

1 Allpass
v Mooikloof Estates (Pty) Ltd t/a Mooikloof Equestrian Centre (2011)
ZALCJHB 7.

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Should the Tiny be dismissed during the disciplinary enquiry/hearing, the employee will
have thirty (30) days to approach the CCMA Bargaining Council and lodge a dispute
regarding the fairness of his/her dismissal. The CCMA / Bargaining Council will assign a
date for the case and inform both parties thereof. Tiny will now become the Applicant
and the Employer the Respondent. When it comes time to argue the dismissal at the
CCMA/Bargaining Council it will be up to Tiny to prove that there was, in fact, a
dismissal and if so, the onus will then shift to the employer to prove that the dismissal of
Tiny was in fact fair. This will include, as mentioned above, for a fair reason as well as
after completion of a fair procedure.

QUESTION 2

(i)

There is legal possibility that Sara can successfully claim damages against PHH. This
is explained as follows. The principle common-law doctrine of vicarious liability holds an
employer liable for the unlawful or delictual acts of an employee which are committed
during the course of business, and is based on the principle that the employer must
compensate those who suffer prejudice as a result of the wrongful conduct of its

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employees. Vicarious liability protects third parties, however, an employer will have
recourse against the offending employee and may discipline the employee for
misconduct and even claim repayment.

Before an employer can be held liable for the acts of its employees, the following
requirements must be met:

. there must be a contract of employment – an employer-employee relationship.

. the employee must have committed a delict (a delict is an act or omission, which is
unlawful and culpable, and which causes damage to a third party).

. the employee must have acted in the course and scope of employment.

In Bezuidenhout v Eskom, the employer had expressly forbidden the employee (who
had been given a company truck to perform his duties) from giving lifts to anyone
without permission. The employee gave someone a lift and thereafter caused an
accident in which the passenger was injured. The Court held that the employer’s
instruction not to carry passengers placed a limitation on the scope of employment and
the employer was not vicariously liable for the injuries sustained by passenger because
“the driver knew that he was prohibited from giving lifts and had no intention of
furthering his master’s affairs by doing so, and that the passenger’s presence added
nothing to the interests of the employer in the administration of its service.” 2

However, if the employee is expressly forbidden from acting in a particular way by the
employer, or if his act constitutes a criminal act, this will not necessarily absolve the
employer from being held vicariously liable for the employee’s wrongful actions. For
example, Richard is a maker of fine and expensive pens of Ink ltd. While fixing an
expensive pen, Richard switches the expensive one for a fake. After the client discovers
this, they claim damages from Ink ltd. The employer will be liable for damages of the
client. The fraudulent action does not affect the fact that the employer is vicariously

2 Bezuidenhout v Eskom (2002) ZASCA 152.

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liable. Richard may however be formally disciplined by Ink it and may also face criminal
charges.

To sum up, there is legal possibility that Sara can successfully claim damages against
PHH because before an employer can be held liable for the acts of its employees, the
following requirements must be met: there must be a contract of employment – an
employer-employee relationship, the employee must have committed a delict (a delict is
an act or omission, which is unlawful and culpable, and which causes damage to a third
party) and the employee must have acted in the course and scope of employment. In
this scenario, all these requirements are met.

(ii)

Section 34(1) and section 34(5) of the Basic Conditions of Employment Act 75 of 1997
(BCEA), cover the deduction of monies from employees. Employers may not deduct
money from a worker’s pay unless the worker agrees in writing to the deduction of a
debt or the deduction is made in terms of a collective agreement, law, court order or
arbitration award.3

Deductions for damage or loss caused by the worker may only be made if the employer
has followed a fair procedure and given the worker a chance to show why the deduction
should not be made. Furthermore, the deduction is made if the total deduction is not
more than 25% of the worker’s net pay. The silver lining though is on Section 34(5) of
the BCEA, which literally deals with the recovery of any overpayment which was
mistakenly made to an employee by the employer. An employer may not require or
permit an employee to repay any remuneration except for overpayments previously
made by the
employer resulting from an error in calculating the employee’s remuneration and
acknowledge receipt of an amount greater than the remuneration.

3 Basic Conditions of Employment Act 75 of 1997.

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The issue of overpayments by the employer was addressed in the following CCMA
case. In Jonker v Wireless Payment Systems CC (2010) 31 ILJ 381 (LC) the employee
had initially been paid a car allowance by the employer. However, when she was
subsequently given a company vehicle, she was no longer entitled to the allowance.
The employer erroneously continued to pay her the allowance for 11 months. The court
said that as a general rule the BCEA prohibits deductions from employees’ salaries
w4ithout their prior consent. However, deductions without consent were permitted where
the employee had been overpaid in error. In such an instance the employer merely had
to advise the employee of the error in payment and the amount of the deduction to be
made.

In conclusion, the PHH has the right to deduct monies owed to them by Maria if
overpayments were mistakenly made due to payroll calculation errors or the employer
can adjust the employee’s remuneration to what was agreed upon in the contract of
employment. It is advisable that the PHH consults and informs the employees of the
payroll error and reach an agreement with Maria and her representatives on how the
money is going to be recovered or how the adjusting is going to take place.

QUESTION 3

The clause in the employment contract of Spring Spark (Pty) Ltd is unlawful with
reference to the employees’ labour rights in terms of the Constitution and the LRA. In
terms of the protection of freedom of association, employees have the right to form, join
and to participate in the lawful activities of a trade union. The employer may not in any
way victimise or prejudice an employee for exercising the fundamental right to freedom
of association. Freedom of association means that people have a right to associate with
others in order to defend and protect their common interest in the work place. Freedom
of association is a Constitutional right given to every worker regardless of their seniority
4 Jonker v Wireless Payment Systems CC (2010) 31 ILJ 381 (LC).

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status in the work place.5 Section 23 of the constitution provides that every worker has
the right to form and join trade union, to participate in the activities and programmes of
trade union and to strike.6 Section 4 of the LRA states that every employee has a right
to participate in forming and join a trade union, subject to the Constitution. The
employee further has the right to participate in the lawful activities and to stand for
nomination or election.7

The right to strike is enshrined in the Constitution of the Republic of South Africa, 1996
(the Constitution). It is recognised as a fundamental right of workers to down their tools
and flex their collective might in support of a demand at the workplace. An employer has
considerable power in the employment relationship and the right to strike has been seen
as a way to balance the scales between the parties. Collective bargaining has the
purpose of compelling the employer and union to engage with one another and to
ultimately reach an agreement. The employer has recourse to lockout its employees.
This may take the form of an offensive lockout to compel the employees to accede to
their demand or a lockout in response to a strike.

The LRA protects freedom of association for employees, employers, trade unions and
employers' organisations. According to the LRA, every employee has the right to form
and join a union, trade union membership is only subject to the constitution of the union.
An employer may not discriminate against an employee for exercising the right to
freedom of association. No-one may give or promise an advantage to an employee or a
work-seeker in exchange for that person not exercising her / his right to freedom of
association. Employer may not require an employee or applicant for a job:

 Not to become a member of a union

 To give up membership of a particular union

5 Section 18 of the Constitution 1994.

6 Section 23 of the Constitution 1994.
7 Section 4 of the LRA

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 Prejudice an employee or job applicant for past, present or anticipated union

membership.

However the LRA prescribes certain procedural requirements which must be complied
with before a strike or lockout will be lawful and thus protected. These requirements,
such as the notice requirement, allow the employer an opportunity to prepare for the
impending industrial action. Whilst lack of compliance may result in an unprotected
strike or lockout, the courts have interpreted the requirements purposefully. One of the
limitations to the right to strike is that those employed in essential services are
prohibited from striking. The limitation only extends however to those involved in the
core duties and not to support staff. In the case of SA Police Service v POPCRU 2011
(9) BCLR 992 (CC) it was held that the limitation only applied to those carrying out
police functions.

QUESTION 4

i. There are certain employees who are prohibited from striking due to the essential
nature of their work.8 Essential service is defined in section 213 of the LRA as: the
Parliamentary service; the South African Police Service; or a service the interruption
of which endangers the life, personal safety or health of people declared as such by
the Essential Services Committee. The prohibition does not cover all employees in
the essential service and should not cover those providing a support function.

In SA Police Service v Police and Prisons Civil Rights Union and Another 2011 (9)
BCLR 992 (CC) it was held that support staff were entitled to strike. The prohibition
applies only to those who are employed to perform police functions. These employees
may refer their dispute for arbitration under section 74 of the LRA.

8 Section 65(1)(d) of the LRA

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Whether the designation of the South African Police Service as an “essential service” in terms of
section 71(10) of the Labour Relations Act(“the LRA”) prohibits all of the personnel of the South
African Police Service from participating in a strike or whether the prohibition applies only to
those members of staff who are members or who are deemed to be members of the SAPS as
defined under the South African Police Services Act2 (“the SAPS Act”). The Labour court held
that in terms of s71(10) of the LRA only those members of the SAPS staff who were
employed under the SAPS Act formed part of the essential service and were prohibited
from striking while the prohibition did not apply to the other SAPS employees.

ii. The requirements of section 64(1) of the LRA do not apply to a strike or a lock-out 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 strike or lock-out
conforms with the procedures in a collective agreement; the employees strike in
response to a lock-out by their employer that does not comply with the provisions of
section 64(1) of the LRA his; the employer locks out its employees in response to
their taking part in a strike that does not conform with the provisions of section
64(1) of the LRA; or the employer fails to comply with the requirements of section
64(4) and(5) of the LRA .

iii. The Labour Relations Act (LRA) affords striking employees the opportunity to
participate in strike action that, when regarded as procedural, also provide them
with some form of protection. Unprotected strikes in terms of the current LRA are
merely discouraged and the hand of employers is strengthened through a number
of options. The current spate of industrial action in the agricultural sector, which
commenced in November 2012 are clearly unprocedural, unprotected and thus in
contravention with the requirements of the LRA. Employers should consider any of
the following options:

 Restraining interdicts

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Section 68(1) gives the Labour Court exclusive jurisdiction to grant an interdict
restraining any person from participating in a strike that does not comply with the
provisions of the Act, or any conduct in contemplation or in furtherance of such a strike.
Whilst interdicts can be quite expensive to obtain they are powerful tools to use where
employees continue to disregard the requirements of the LRA and act in either non-
compliance thereof or participate in other acts of a criminal nature.

Compensation

Similarly the Labour Court also has jurisdiction to order the payment of ‘just and
equitable compensation’ for any loss attributable to an unprotected strike. As in the case
of protected strikes, the employer may withhold wages during

unprotected strikes; Employers can also consider other measures to persuade workers
not to strike, like e.g. withholding bonuses, rewarding non-striking employees with an
additional bonus; the refusal to back-date wages after a wage offer has been rejected.
These options must however not unfairly discriminate against the strikers or amount to
victimization.

Disciplinary action short of dismissal

The disciplinary penalty most commonly imposed on strikers after their return to work is
a written or final written warning. However, the Code of Good Practice: Dismissal
expressly states that unprotected strikes may be regarded as a from of misconduct
justifying dismissal.

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SEP/NOV 2021

MRL3702
Labour Law

100 marks

24 Hours Portfolio Examination

Examiners: Adv LK Kubjana

Prof ME Manamela

This paper consists of 9 pages

INSTRUCTIONS FOR A PORTFOLIO OR TAKE-HOME EXAM ON MYEXAMS

PLEASE READ THE FOLLOWING INSTRUCTIONS CAREFULLY BEFORE ANSWERING THE

EXAMINATION QUESTIONS.
Instructions:

1. The examination question paper counts 100 marks.

2. It consists of FOUR questions. Answer ALL of the questions.
3. The duration of the examination is 24 hours. Your answers must be submitted via myUnisa on or
before 16 September 2021 at 10:00 (South African Standard Time).
4. This is an open-book examination. You may consult your prescribed study material during the
examination. While the examination is in progress, you are not allowed to consult another person or
any source in order to assist you to answer any of the questions contained in this question paper.
While the examination is in progress, you may not assist another student in answering any of the
questions contained in this question paper.
5. Your answer to this portfolio or take-home examination must be submitted online on the myExams
platform.
5.1 Access myExams at https://myexams.ac.za/portal and login using your student number and myUnisa
password.
5.2 Go to your specific examination site through the site tabs on the horizontal navigation bar. Also check
your Sites link in the top right-hand corner if you do not find the site on the horizontal navigation bar.
5.3 Once the site has loaded, select the eAssessment tool from the left-navigation menu.
5.4 The list of all available assessments in the site will be displayed.
5.5 Select the assessment for which you want to upload the examination answer file by clicking on
the title of the assessment in the list. A new page will open.
5.6 Submit your examination answer file

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Depending on the assessment criteria, you may be allowed to attach a file or perhaps multiple files.
Under Attachments, click the Choose File button to browse for a file on your device.

Once you have attached your answer file, the name of the file, as well as the file size and upload
time stamp will be displayed under Attachments.

Tip: You may click Remove to remove the attachment if you selected the wrong file.

Tip: Select the honour pledge. Students MUST check the honour pledge before submission if it
appears on the screen. A student will not be able to submit the assessment if he/she did not check
the honour pledge.

When you are ready and satisfied that you have a correct answer file, click the Submit button to
complete your assessment submission.

Tip: If you are not yet ready to submit, you may click Preview to preview the submission, or Save
Draft to save your submission and submit it later. Click Cancel to exit the assessment without saving
or submitting.

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5.7 Submission confirmation

Once you have submitted your assessment, you will receive a confirmation message on the screen.
Make a screen copy for your records. In addition, if you have opted to receive email notifications, you
will also receive an email confirmation of your submission.

6. The cover page to your take-home exam must include your name, student number and the module
code.
7. It is preferred that your take-home exam is typed, however, handwritten submissions will also be
accepted. If the take-home exam is typed, the maximum length is 10 pages (which includes the
cover page and the bibliography). If the take-home exam is handwritten, maximum length is 12
pages (which includes the cover page and the bibliography).
8. Whether your answers are typed or handwritten, your submission on myUnisa must be made in the
form of one PDF document. Remember NOT to password protect your portfolio.
9. If your answers are typed, ensure that the following requirements are adhered to. Items 9.3-9.6
apply to written assignments as well.
9.1 The text must be typed in Arial font, size 12 with single line spacing within the paragraph, and double
line spacing after the paragraph.
9.2 The text must be justified.
9.3 All of the pages must be numbered in the bottom right hand corner of the page.
9.4 All margins must be 2.5cm, but the left margin must be 3cm.
9.5 South African English and not American English should be used. For example, the correct spelling
is “Labour” and not “Labor”.
9.6 Do not use abbreviations or SMS language.
9.7 Students are advised to preview submissions (answer scripts) to ensure legibility and that the correct
answer script file has been uploaded. Incorrect file format and uncollated answer scripts will not be
considered. Answer scripts made on unofficial examinations platforms will not be marked. Marks
awarded for illegible scanned submissions will be the student’s final mark.
9.8 All quotes that are two lines long (or less), must form part of the main text, be written in italics, and
be bracketed by quotation marks. Where a quotation is longer than two lines, it must be typed in a
separate paragraph in italics in size 11 font and must be indented by 1 cm. No quotation marks are
required when the quotations stand alone. Use quotations very sparingly. In this take-home exam, a
maximum of 5% of the text may be quoted.
10. When answering the take-home exam questions, remember that an open-book exam is a test at a
higher level than the usual type of exam, where memory is tested as much as insight. In an open-
book exam, you need not memorise any information. You are expected to prove that you can use
information, rather than merely repeat it. In brief, what is being tested is factual knowledge,
understanding and the correct application thereof, not memory skills. For this reason, you do not
earn marks by merely detailing a list of all the information that you think might be relevant to a
particular question. This gives no indication that you know what statutory or other provisions are
applicable in a specific context. You are expected to identify precisely what information applies, and
3

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then explain why you think so. You are therefore assessed on your level of understanding of the
legal principles by looking at how well you applied the principles to the questions. PLEASE DO NOT
CUT AND PASTE ANSWERS FROM YOUR STUDY MATERIAL (OR ANY OTHER SOURCE).
11. The arguments that you make must be logical, well-structured and substantiated by all of the relevant
legal principles. You are given 24 hours to complete the take-home exam. Use the time given wisely.
11.1 Ensure that you give reasons for each answer. Substantiate your answers by referring to ALL of the
relevant authorities, e.g. sections from relevant legislation and/or court cases in the text or in your
footnotes.
11.2 A number of students lose marks because they do not approach problem-type questions correctly.
When answering such questions, it is important to first clarify for yourself the area of work where the
answer must be sought. Once you have done this, set out the relevant legal principles. Deal only
with those principles that relate to the given facts. Next, apply these principles to the facts. This is
where most of the students lose marks - they set out the law in some detail, but then do not illustrate
how it applies to the factual situation they have been asked to solve. Finally, state your conclusion.
You must attach a signed plagiarism declaration to your exam. Exam scripts sent without signed
plagiarism declarations will not be marked. Find a copy of the declaration at the end of the portfolio
under ANNEXURE A.
12. You must attach a signed plagiarism declaration to your exam. Exam scripts sent without signed
plagiarism declarations will not be marked. Find a copy of the declaration at the end of the portfolio
under ANNEXURE A. Students suspected of dishonest conduct during the examinations will be
subjected to disciplinary processes.
13. Take note of the following abbreviations in the portfolio:
 The Labour Relations Act 66 of 1995 is referred to as the ‘LRA’.
 The Employment Equity Act 55 of 1998 is referred to as the ‘EEA’
 The Constitution of the Republic of South Africa, 1996 is referred to as the ‘Constitution’.

PLEASE NOTE:
If you experience technical problems, of any kind, on the day of the examination and your examination
answers are not submitted by the cut-off time, you are advised to apply with supporting evidence for an
Aegrotat within 3 days of the examination session. No other type of submission of your examination
answers will be accepted. This means that emailed submissions will not be accepted for marking.
Students experiencing technical challenges may contact the SCSC at 080 000 1870 or sent an email
to [email protected].

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QUESTION 1

1.1 Cool Dairy Products (Pty) Ltd (‘CDP’) produces and distributes dairy products to
grocery outlets in Gauteng. CPD employs 500 fulltime employees. Between the year
2016 and 2020, CPD experienced an unstable demand for dairy products as a result
of the unusual rising and dropping of temperatures caused by the climate change.
Dropping temperatures had a negative commercial impact on the CPD business and
in response to that, CPD decided to retrench employees in stages. Retrenchments
were conducted in the following manner:

 In 2016, 17 employees were retrenched;

 In 2017, 11 employees were retrenched;
 In 2018, 7 employees were retrenched;
 In 2019, 7 employees were retrenched; and
 In 2020, 8 employees were retrenched.

With reference to relevant legal authority, answer the following questions:

(a) Define and discuss the ground upon which the employer relied on to dismiss
employees in the scenario above. (10)
(b) Grietjie and Mosebethwane argue about the scale of retrenchments
conducted by CPD between the years 2016 and 2018. Grietjie argues that, it
was a large-scale retrenchment whereas according to Mosebethwane, it was
both a small-scale and a large-scale retrenchment.
(i) Advise Mosebethwane and Grietjie on what was the scale of
retrenchments conducted by CPD between 2016 and 2018 and why?
(3)

(ii) Would your answer in (b)(i) above remain the same if you were to
determine the scale of retrenchments conducted by CPD between
2016 and 2020. Motivate your answer. (4)
1.2 What constitutes a ‘dismissal’? (6)
1.3 Some forms of dismissal are called ‘no-fault’ dismissals. Name and explain why
those dismissals are called such. (2)
[25]

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QUESTION 2

2.1 Mjita is a qualified psychologist and has been looking for employment for quite some
time. He was invited to an interview for a position at a local therapy house and after
a month he received a call, informing him that his interview was successful and that
he should report for work the following day. During the orientation and in confidence,
Mjita told Ras Waka (the owner of the therapy house) that he had a gender-
realignment (gender changing) surgical appointment later that day. Ras Waka who
does not appreciate and identify with gender-realigned people; asked Mjita to choose
between proceeding with gender-realignment and lose the job or to stop gender-
realignment and keep the job.

Discuss the fairness of the position taken by Ras Waka, with reference to applicable
provisions of the Constitution, the EEA, the LRA and case law. (15)

2.2 Distinguish between the ‘formal’ and ‘substantive’ forms of equality and provide an
example for each. (4)

2.3 With reference to applicable case law, explain the concept of ‘automatically unfair
dismissal’, its constitutionality and fairness in the South African labour law. (6)
[25]

QUESTION 3

3.1 GG Manufacturers (‘GG’) is a company which manufactures and sells solar panels
and it employs a total of 600 employees. GG has a number of branches in different
cities including Polokwane where there are 400 employees and Pretoria where there
are 200 employees. Each branch has its management, however, the head office and
the human resource department for all branches are in Polokwane. There are two
trade unions with members employed by GG. Solar Workers Union (‘SWU’)
represents 350 employees in both branches, while Power Workers Union (‘PWU’)
represents 200 employees in both branches. The rest of the employees are not
members of any trade union. In the Polokwane branch, SWU has 280 members and
70 in the Pretoria branch, while PWU has 50 members in the Polokwane branch and
150 members in the Pretoria branch.

Discuss what will constitute the ‘workplace’ in the context of GG for purposes of the
acquisition of organisational rights and advise both SWU and PWU on the
organisational rights each of the trade unions may acquire from GG. (15)

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3.2 Abram and Sonto who are Labour Law students at UNISA argue about the protection
of employees’ right to freedom of association. Abram thinks that this right is important
to employees and should not be limited; while Sonto thinks that the right should be
limited.
With reference to relevant legal authority discuss how the LRA, limits employees’
right to freedom of association through trade union security arrangements and
whether the limitation is reasonable. (10)
[25]

QUESTION 4

4.1 True Workers Union (‘TWU’) and Shining Stars Supermarket (‘SSS’) started 2021
negotiations at the beginning of April and a collective agreement was concluded
between the parties. In terms of the collective agreement there will be new working
hours and a change in the shift system. In June 2021, SSS informed its employees
that the collective agreement will be effective from the beginning of July 2021 and
will apply to all its employees. Strong Workers Union (‘SWU’) is another trade union
with members employed by SSS, but was not part of the negotiations. SWU is
adamant that the changes brought by the collective agreement are unreasonable
and that the agreement should not apply to its members.
With reference to relevant legal authority, advise SWU on whether it is possible for
the collective agreement to apply to its members even though the union was not part
of negotiations with SSS. (8)

4.2 BB (Pty) Ltd (‘BB’) is a company which manufactures face masks and face shields
for protection against Covid-19 and the majority of its employees are members of
Masks Workers Union (‘MWU’). MWU approached BB for a wage increase of 15%
based on the fact that its members have been working hard due to the high demand
of masks, however, BB refused to grant them the increase due to the fact that the
lockdown had a negative impact on its finances. A dispute was referred to a private
conciliator in terms of a collective agreement which regulates the strike procedure,
however, parties still failed to reach agreement. As a result, members of MWU
decided to engage in a strike in order to force BB to accept their demand.

Answer the following questions with reference to relevant legal authority:

(i) Discuss whether the strike by members of MWU will be protected and whether
BB will be required to pay members of MWU their salaries while they are on
strike. (12)

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(ii) Assuming that the strike by members of MWU was protected, advise them on
another possible action they can use in addition to the strike to put pressure
on BB and indicate the requirements which must be met for that action to be
protected. (5)
[25]
TOTAL: [100]

©
UNISA 2021

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ANNEXURE A

PLAGIARISM DECLARATION

Student name:

Student number:

Course code:

I know that plagiarism is to use another’s work and pass it off as one’s own work.
I know that plagiarism is wrong.
I confirm that this portfolio is my own work.
I have acknowledged all sources that I have used.
I have not directly copied anything from the internet or from any other source.
I have indicated every quotation and citation in a footnote or bracket linked to that
quotation.
I have not allowed anyone else to copy my work so as to pass it off as their work.
I understand that if any unacknowledged copying whatsoever appears in my portfolio, I
will receive 0% for the portfolio.
I am aware of the UNISA policy on plagiarism and understand that disciplinary
proceedings can be instituted against me by UNISA if I contravene this policy.

Signed by ……………………………………….

Date ………….....................

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QUESTION 1

1.1.
a.

There are 3 forms of fair dismissal, dismissal based on misconduct of the employee,
incapacity of the employee, and operational reasons of the employer.

Cool Dairy Products (Pty) Ltd relied on Section 189 of the Labour Relations Act
which permits employers to dismiss employees for operational requirements. Like all
dismissals, retrenchments must be both procedurally and substantively fair. Section
189 of the LRA requires all consulting parties to reach consensus on the various
matters. Section 189(1) of the LRA provides that, before retrenching, employers
must consult any person whom the employer is required to consult in terms of any
collective agreement that may be in force.

The concept ‘operational requirements’ is defined and characterised in four

elements, which are, the economic, structural, technological and similar
requirements. An employer’s economic needs and the dismissal of employees as a
result of these needs relate to the financial management of the enterprise including
financial difficulties experienced by the business as a result of changes in the
market, a decrease in demand for its products, a decrease in production itself, in
government subsidies or the cost implications of compliance with the BCEA1.

In Kotze v Rebel Discount Liquor Group2, it was stated that the court should not
‘second guess’ the employer’s commercial reasons for taking a specific decision to
retrench employees. In later decisions the court adopted a stricter approach and held
that the employer’s version will not merely be accepted on face value. Rather, the
court itself should determine whether retrenchment had a reasonable basis and the
commercial rationale. In a later judgment, the court held that the retrenchment
should remain a matter of last resort.

Dismissals for operational requirements have been categorised as "no fault"

dismissals. In other words, it is not the employee who is responsible for the
termination of employment. Because retrenchment is a "no fault" dismissal and

1
Basic Conditions of Employment Act 75 of 1997
2
Johann Lindenberg Kotze v Rebel Discount Liquor Group (Pty) Limited (CA3/98) [1999] ZALAC 25

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because of its human cost, this Act places particular obligations on an employer,
most of which are directed toward ensuring that all possible alternatives to dismissal
are explored and that the employees to be dismissed are treated fairly.

b.
i.

In terms of section 189 of the Labour Relations Act a large scale retrenchment
(section 189A) is where the employer employs more than 50 people, and the
employer contemplates to: dismiss 10 employees, if he employs up to 200 people;
dismiss 20 employees if he employs more than 200 hundred up to 300: dismiss 30
employees if employs more than 300 but up to 400 people; and employs more than
500 employees, contemplates dismissing 50 employees.

Small scale retrenchment process involves more often than not smaller workplaces
where companies has fewer than 50 employees.

These thresholds apply for a period of 12 months. In other words, if the employer
dismisses the prescribed number of employees either at the same time or at different
times during a 12-month period, section 189A applies.

The total retrenchment by Cool Dairy Products (Pty) Ltd was 35 employees from
total of 500 employees between 2016 and 2018. This can be classified as a small
scale retrenchment since it happened over 3, 12 months periods.

ii.

The total retrenchment between 2016 to 2020 was 50 employees. However the
retrenchments occurred over a 5 year period. These thresholds apply for a period of
12 months. In other words, if the employer dismisses the prescribed number of
employees either at the same time or at different times during a 12-month period,
section 189A applies.

Therefore the retrenchments between 2016 and 2020 can still be classified as small
scale retrenchments.

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1.2.

A dismissal is when a contract of employment between an employer and employee

is terminated by the employer. In other words, against the will of the employee.

Section 186 of the Labour Relations Act 66 of 1995 defines dismissal as follows;

a) termination of employment with or without notice,

b) when an employee employed on a fixed term contract reasonably expected
employer to renew employment contract on the same or similar terms or
retain the employee on indefinite basis but the employer offered to renew on
less favourable terms or not renew at all, or not to retain employee
indefinitely,
c) an employer refused an employee to resume work after she took maternity
leave in terms of any law, collective agreement or contract of employment,
d) an employer who dismissed employees for the same or similar reasons
offered to re-employ one or more of them but has refused to re-employ
another,
e) constructive dismissal or,
f) the new employer offered substantially less favourable terms to employees
after the transfer in terms of section 197 of the LRA.

Section 186 of the LRA defines dismissals, it can be fair, unfair or automatically
unfair. The definition of dismissal indicates what actions performed by the employer
would bring the employment relationship to an end.

1.3.

No-fault dismissals

i. Dismissal for incapacity

ii. Dismissal for operational reasons

In these instances, employees are ready and available to offer their services but the
employer’s business focus or employee’s capacity demand that they be dismissed.
The inability is due to no fault of the employee under dismissal for incapacity. Under
operational requirements it is the focus of the employer’s business which leads to
dismissal.

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QUESTION 2

2.1.

It is apparent from the provisions of section 9 of the Constitution3 that discrimination

is prohibited on any of the grounds referred to in subsection (3) unless it is fair. The
provisions are not only applicable to the state but also to persons which would
include employers. In compliance with the provisions of section 9(3) of the
Constitution, the LRA and the EEA were enacted which also outlaws discrimination
in the work place unless it is fair.

Section 187 of the LRA provides that a dismissal is automatically unfair if the
employer, in dismissing the employee, acts contrary to section 5 or, if the reason for
the dismissal is that the employer directly or indirectly, on any arbitrary ground,
including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief, political opinion, culture,
language, marital status or family responsibility.

Section 6(1) of the Employment Equity Act No. 55 of 1998 prohibits direct and
indirect “unfair discrimination” against an employee in any employment policy or
practice based on an extensive list of grounds including gender, sex, sexual
orientation, and a number of other grounds.

Both the EEA and LRA give effect to the provisions of the Constitution that outlaws
unfair discrimination.

The evidence showed that the dominant reason for the dismissal was the Ras
Waka’s unhappiness about the applicant gender-realignment. The respondent had
automatically unfairly dismissed the applicant on the specified grounds of sex/gender
in terms of section 187(1)(f).

The LRA defines who an employee is. It does not distinguish between males and
females. A transsexual who undergoes a gender reassignment process would
continue to remain an employee and the prohibition against unfair discrimination
would still exist unless the respondent could show that the discrimination was fair.

3
Constitution of the Republic of South Africa, 1996

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Automatically unfair dismissals are the workplace equivalent of a heinous crime; very
unfair dismissals if you like. Automatically unfair dismissals are considered to be so
deplorable that they have a maximum compensation threshold of twenty four months
remuneration versus 12 months compensation for ordinary unfair dismissals.

In Atkins v Datacentrix (Pty) Ltd4 employer terminated Atkins contract of

employment, arguing that the employee had omitted to mention that he was in the
process of undergoing a gender-reassignment process. The dismissal was declared
automatically unfair and it was held that the employer had unlawfully discriminated
against the employee, with costs.

Considering the facts in the case and provision discussed above, the position taken
by Ras Waka in the appointment of Mjita amounts to unfair discrimination.

2.2.

In terms of subsections 9(3) and 9(4) of the Constitution, Formal equality, which is
also called ‘equality in treatment focuses on protecting individuals against
discrimination. It views individual ability and performance as the only factors relevant
for achieving success in society. Formal equality advocates for the neutral treatment
of all people based on the norms of the dominant group in society.

The substantive approach to equality is entrenched in human rights treaties, laws,

and jurisprudence, which is then adopted and implemented by nation states and
private actors. It does this by ensuring that laws or policies do not reinforce the
subordination of groups already suffering social, political or economic disadvantage
and requires that laws treat individuals as substantive equals, recognising and
accommodating peoples' differences.

2.3.

An automatically unfair dismissal is this type of dismissal the employer cannot

defend the dismissal. Automatic unfair dismissal is a term used to describe certain

4
Atkins v Datacentrix (Pty) Ltd (2010) 31 ILJ 1130 (LC

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situations where an employee was dismissed for a specific reason which is protected
by legislation.

Some examples of automatically unfair dismissals are dismissals relating to:

a) asserting a statutory right

b) maternity/paternity leave
c) parental/adoption leave
d) asking to be paid the minimum wage
e) pregnancy
f) trade union activities
g) making a protected disclosure (ie whistleblowing)

If the reason for dismissing an employee was for one or more of these (non-
exhaustive) reasons, then the dismissal will be considered automatically unfair. The
difference between unfair dismissal and an automatic unfair dismissal is that the
latter is available to all employees regardless of length of service.

In Imatu and Others v Rustenburg Transitional Council5 it was held that a senior
manager cannot be prevented from joining a trade union but must act in good faith
towards the employer and must be careful in order to balance trade union and
employer’s interests. Therefore, if LLZ (Pty) Ltd dismisses Anzo the dismissal will
automatically be unfair.

In terms of section 187 of the LRA a dismissal is automatically unfair if an employer

discriminates against an employee or if an employee is dismissed because he
exercised his rights in terms of the LRA.

5
IMATU & Others v Rustenburg Transitional Council (2000) 21 ILJ 377 (LC)

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QUESTION 3

The Labour Relations Act defines the workplace as “the place or places where the
employees of an employer work. If an employer carries on or conducts two or more
operations that are independent of one another by reason of their size, function or
organisation, the places where employees work in connection with each independent
operation, constitutes the workplace for that operation”.

The definition of a workplace plays a pivotal role in determining whether or not a

union has enough members to enjoy one or more of the respective organisational
rights. This is especially true of site based operations or where operations take place
on the premises of the client, an example thereof being the security industry.

In Chamber of Mines of South Africa obo Harmony Gold Mining Company Ltd and
Others v Association of Mineworkers of South Africa and Others6 it was held that the
following factors will suggest a single workplace: all operational decisions are subject
to approval by a central board, that all operating procedures are standardised across
an employer’s branches and are determined by a central board and that the
production planning and financial management of the business is centralised.

Organisational rights are requests by a trade unions made in writing, to represent

employees in a workplace on a variety of different rights. Sections 12,13,14,15 and
16 of the Labour Relations Act 66 of 1995, dictate the most commonly sought rights
by unions namely; access to the workplace, deduction of union levies, the
appointment of shop stewards, leave for union activities, and access to information.

Access premises of the employer

A representative trade union’s official, or office-bearer entitled to enter the

employer's premises in order to recruit members or communicate with members, or
otherwise serve their interests A representative trade union is entitled to hold
meetings with employees outside their working hours at the employer's premises.

The members of a representative trade union are entitled to vote at the employer's
premises in any election or ballot contemplated by that trade union's constitution.

6
Chamber Of Mines Of South Africa obo Harmony Gold Mining Company Ltd and Others v Association Of
Mineworkers Of SA and Others; In Re: Association Of Mineworkers And Construction Union and Others v
Chamber Of Mines Of South Africa obo Harmony Gold Mining Company Ltd and Others (J99/14) [2014]
ZALCJHB 223; [2014] 9 BLLR 895 (LC); 2014 (11) BCLR 1369 (LC); (2014) 35 ILJ 3111 (LC)

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The rights conferred by this section are subject to any conditions as to time and
place that are reasonable and necessary to safeguard life or property or to prevent
the undue disruption of work.

Deduction of trade union membership fees

Any employee who is a member of a representative trade union may authorise the
employer in writing to deduct subscriptions or levies payable to that trade union from
the employee's wages. The union may require an employer to make authorised
deductions of union subscription or levies from employees’ wages and pay them
over to the trade union. This is sometimes known as ‘union stop orders’.

Election of shop stewards

Members of a registered trade union may elect representatives (shop stewards) at

the workplace, and those elected may:

 represent employees in grievance and disciplinary hearings;

 monitor employer compliance with employment law and collective agreements
and report any contraventions; and
 take reasonable time off, with pay, to perform or to be trained in their
functions.

A trade union representative or shop steward is an employee of the employer. The

right to elect trade union representatives only applies to a registered trade union, or
two or more unions acting jointly, that have as members the majority of employees
employed by the employer in the workplace.

SWU has majority in the Polokwane branch while PWU has majority in Pretoria.
These should be considered when electing representatives.

Leave for union activities

An employee who is an office-bearer of the union, has the right to take reasonable
leave during working hours in order to perform the functions of that office. Such an
office-bearer is entitled to take reasonable leave during working hours for the
purpose of performing the functions of his/her office. The union and the employer
may agree on the number of days of leave, the number of days of paid leave and the
conditions attached to any leave for this purpose.

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Disclosure of information

This is an example of a ‘majority right’ as discussed above. The union may require
the employer to disclose all relevant information for the union to engage effectively
with the employer in consultation or collective bargaining.

SWU can acquire this right in Polokwane branch which PWU can acquire this right in
Pretoria branch.

3.2.

The right to freedom of association and the right of every worker to form and join a
trade union is expressed in section 4 (1) of the LRA7, which guarantees every
employee the right to join a trade union.

While intended to achieve these purposes, the LRA also provides for two forms of
union security arrangements namely the closed shop and agency shop agreements.
They are provided for under section 23 (6) of the Constitution20 of South Africa and
section 26 of the LRA.

A closed shop agreement is an agreement entered into between a representative

trade union and an employer in terms of which all employees covered by the
agreement must be members of the trade union.

An agency shop agreement is an agreement entered into between a representative

trade union and an employer in terms of which the employer must deduct an agency
fee from the wages of employees identified in the agreement who are not members
of the trade union but are eligible for membership.

These two agreements seem to be infringing employees’ right to freedom of

association, however it must be noted that section 23(6) of the Constitution provides
for union security arrangements. A closed shop agreement infringes on an
employee's right to freedom of association, because he could lose his job, for
example, if he does not join the union or is expelled from the union. A closed
shop dismissal is, in actual fact, a possible fourth ground for a fair dismissal. After
conciliation, the Labour Court retains jurisdiction to adjudicate on the fairness of such
a dismissal.

7
Labour Relations Act 66 of 1995

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Agency shop and closed shop agreements are thus not automatically
unconstitutional. However, the limitation by these agreements on freedom of
association must still comply with the requirements of section 36(limitation clause) of
the Constitution. Furthermore, in order to limit the possibility of agency shop and
closed shop agreements being unconstitutional on the basis that they infringe
freedom of association sections 25 and 26 of the LRA provides certain pre-requisites
for concluding valid agency shop or closed shop agreements.

The purpose of these agreements are to enhance collective bargaining by the

development of strong and powerful trade unions and stable bargaining
relationships.

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QUESTION 4

In terms of section 23 of the Labour Relations Act a collective agreement binds the
following:

 The parties to the agreement

 A party to the agreement and the members of another party
 Trade union members and members of employers’ organisations
 It may also be extended to employees who are not union members

In terms of section 23(1)(d) of the Labour Relations Act a registered trade union and
an employer may agree that a collective agreement they have concluded will be
extended to and bind employees who are not members of the said union and who
may be members of another competing union provided certain requirements are met:

a) The collective agreement must expressly state that it binds such employees;
b) That the employees must be expressly identified in the agreement; and
c) That the trade union that concluded the collective agreement in question must
represent the majority of employees working in the workplace.

Therefore, a minority trade union may be bound by the collective agreement which
was concluded between the employer and the majority trade union in terms of this
section. Section 23(1)(d) has been constitutionally challenged before on the basis
that it infringes the constitutional rights of other employees, for instance, the right to
strike.

In AMCU v Chamber of Mines8 the court found that section 23(1)(d) did indeed
infringe on the right to strike but is a justifiable infringement in terms of section 36
(limitation clause) of the Constitution.

Therefore, the agreement can be lawfully applied to SWU members as well since the
agreement specifically includes all employees including SWU members and
expressly binds all the employees.

8
Association of Mineworkers and Construction Union and Others v Chamber of Mines of South Africa and
Others (CCT87/16) [2017] ZACC 3

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4.2.

The Labour Relations Act defines a strike in its section 213 as the partial or complete
concerted refusal to work, or the retardation or obstruction of work, by persons who
are or have been employed by the same employer or by different employers, for the
purpose of remedying a grievance or resolving a dispute in respect of any matter of
mutual interest between employer and employee, and every reference to ‘‘work’’ in
this definition includes overtime work, whether it is voluntary or compulsory’.

However, Section 65 places substantive limitation to the right to strike in instances

where the strike is absolutely prohibited because of the parties involved and the
nature of the services rendered by the parties. Hence in terms of section 65 a strike
is unprotected even if all the requirements have been complied with for example
strike by essential services. This is because the provision of such services is
important either to society or the employer. An essential service means a service, of
which the interruption endangers the life, personal safety or health of the whole or
any part of the population. The supply and distribution of face masks and face
shields is an essential service.

In SAPS v POPCRU9 the court held that SAPS’ argument that all its employees fall
under essential services is neither justifiable nor reasonable and it would unjustifiably
restrict the fundamental right to strike provided in the Constitution. The court,
therefore, found that employees employed by the SAPS who are not performing
police functions do not fall under essential services and may engage in a strike.

Given that a contract of employment is reciprocal in nature, the common-law rule of

‘no work, no pay’ applies to strikes and lock-outs. Employers do not have to
remunerate employees for services not rendered during an protected strike. There is
however an exception to the ‘no work, no pay’ rule which applies in the case of
protected strikes, i.e., if the employees’ remuneration includes payment in kind in the
form of accommodation, the provision of food and other basic amenities of life, the
employer may not stop this payment in kind during the strike if the employees
request that it continues.

9
SAPS (SA Police Service) v POPCRU (Police and Prison Civil Rights Union) [2010] 12 BLLR 1263 (LAC)

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As in the case of protected strikes, the employer may withhold wages during
unprotected strikes After the strike the employer may recover the monetary value of
the payment in kind from the employees by way of legal proceedings in the Labour
Court.

Therefore, in terms of the above provision, the strike by members of MWU is

unprotected and therefore BB will not be required to pay members of MWU their
salaries while they are on strike.

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BIBLIOGRAPHY:

Books:

Basson AC et al The New Essential Labour Law Handbook (2019) Labour Law
Publications CC.

Cases Law:

Johann Lindenberg Kotze v Rebel Discount Liquor Group (Pty) Limited (CA3/98)
[1999] ZALAC 25

SAPS (SA Police Service) v POPCRU (Police and Prison Civil Rights Union) [2010]
12 BLLR 1263 (LAC)

Association of Mineworkers and Construction Union and Others v Chamber of Mines

of South Africa and Others (CCT87/16) [2017] ZACC 3

Chamber Of Mines Of South Africa obo Harmony Gold Mining Company Ltd and
Others v Association Of Mineworkers Of SA and Others; In Re: Association Of
Mineworkers And Construction Union and Others v Chamber Of Mines Of South
Africa obo Harmony Gold Mining Company Ltd and Others (J99/14) [2014]
ZALCJHB 223; [2014] 9 BLLR 895 (LC); 2014 (11) BCLR 1369 (LC); (2014) 35 ILJ
3111 (LC)

IMATU & Others v Rustenburg Transitional Council (2000) 21 ILJ 377 (LC)

Legislation:

The Constitution of the Republic of South Africa, 1996.

The Basic Conditions of Employment Act 75 of 1997.

The Employment Equity Act 55 of 1998.

The Labour Relations Act 66 of 1995

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OCTOBER/NOVEMBER 2020

MRL3702
LABOUR LAW
100 marks

24 Hours Portfolio Examination

This paper consists of 6 pages.

PLEASE READ THE FOLLOWING INSTRUCTIONS CAREFULLY BEFORE

ANSWERING QUESTIONS

(1) The examination question paper counts 100 marks. ANSWER ALL QUESTIONS.
(2) The cover page to your portfolio must include your name, student number and the module code.
(3) This is an open-book examination. You may consult your prescribed study material during the
examination. You may however not consult another person to assist you answer questions. You
may also not assist another student in answering questions.
(4) All answers must refer to relevant legal authority.
(5) The duration of the examination is 24 hours. Your portfolio must be submitted via myUnisa on
FRIDAY,13 NOVEMBER 2020 on or before 11H:15 (Central African Time). LATE SUBMISSIONS
WILL NOT BE MARKED.
To submit your portfolio via myUnisa:

• Go to myUnisa.
• Log in with your student number and password.
• Select the module.
• Click on “Assignments Info” tab in the menu on the left-hand side of the screen and look
for the summative assessment which is classified as a ‘portfolio’.
• Follow the instructions to submit your portfolio.
(6) If your answers are typed, ensure that the following requirements are adhered to. Items 6.2; 6.3;
6.6; & 6.7 apply to written assignments as well.
6.1 All the pages must be numbered in the bottom right hand corner of the page.
6.2 Your exam answers must be submitted in PDF format.
6.3 Portfolio answers must not exceed ten (10) typed pages or twelve (12) written pages.
Please adhere to the length restrictions. If your answer exceeds the prescribed length, we
shall stop marking when your answer reaches the page limit.
6.4 Your exam must be typed in Arial 12pt with single line spacing within the paragraph, and
double line spacing after the paragraph.
6.5 The text must be justified.
6.6 South African English and not American English should be used. For example, the correct

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MRL3702
October/November 2020

spelling is “Labour” and not “Labor”.

6.7 Do not use abbreviations or SMS language.
6.8 All quotes that are two lines long (or less), must form part of the main text, be written in
italics, and be bracketed by quotation marks. Where a quotation is longer than two lines, it
must be typed in a separate paragraph in italics in size 11 font and must be indented by 1
cm. No quotation marks are required when the quotations stand alone. Use quotations very
sparingly. In this portfolio, a maximum of 5% of the text may be quoted.
(7) When answering the portfolio questions, remember that an open-book exam is a test at a higher
level than the usual type of exam, where memory is tested as much as insight. In an open-book
exam, you need not memorise any information. You are expected to prove that you can use
information, rather than merely repeat it. In brief, what is being tested is factual knowledge,
understanding and the correct application thereof, not memory skills. For this reason, you do not
earn marks by merely detailing a list of all the information that you think might be relevant to a
particular question. This gives no indication that you know what statutory or other provisions are
applicable in a specific context. You are expected to identify precisely what information applies,
and then explain why you think so. Also, because you have the guide available when answering
questions, we do not give marks for direct quotations from the guide. You are therefore assessed
on your level of understanding of the legal principles by looking at how well you applied the
principles to the questions. PLEASE DO NOT CUT AND PASTE ANSWERS FROM THE STUDY
GUIDE (OR YOUR TEXTBOOK).
(8) You must familiarise yourself with the UNISA rules pertaining to plagiarism. Plagiarism will result
in zero marks, disciplinary action, and possible expulsion from UNISA.
(9) The arguments that you make must be logical, well-structured and substantiated by all of the
relevant legal principles. You are given 24 hours to complete the portfolio. Use the time given
wisely.
(10) Several students lose marks because they do not approach problem-type questions correctly.
When answering such questions, it is important to first clarify for yourself the area of work where
the answer must be sought. Once you have done this, set out the relevant legal principles. Deal
only with those principles that relate to the given facts. Next, apply these principles to the facts.
This is where most of the students lose marks - they set out the law in some detail, but then do not
illustrate how it applies to the factual situation they have been asked to solve. Finally, state your
conclusion.
(11) You must attach a signed plagiarism declaration to your exam. Exam scripts sent without signed
plagiarism declarations will not be marked. Find a copy of the declaration at the end of the portfolio
under ANNEXURE A.

PLEASE NOTE:

 The Labour Relations Act, 1995 is referred to as the ‘LRA’

 The Basic Conditions of Employment Act, 1997 is referred to as the ‘BCEA’
 The Employment Equity Act, 1998 is referred to as the ‘EEA’
 The Constitution of the Republic of South Africa, 1996 is referred to as ‘the Constitution’

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MRL3702
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QUESTION 1

1.1 Moji’s business is to build, install and maintain security features mainly for South
African national key points and in the Southern African Developing Countries
(SADC). For his business’ success as a pioneer and a leader in the security sector
in the region, Moji invests in young and technically skilled graduates from UNISA
who offer reliable technical services to its clients. One evening, Moji received a call
from Botswana authorities while doing maintenance rounds at OR International
Airport (OR), asking him to urgently install security features at their Lobatse border
in order to stop criminal syndicates from operating between South Africa and
Botswana as this is crippling the Botswana economy. This meant that Moji had two
jobs to do, namely, to maintain OR and to install security features at Lobatse
border. Realising the importance of the two tasks, Moji who was already tired that
evening decided to call his girlfriend, Dineo to continue with maintenance at OR
while he rushed to the Lobatse border to install security features. When Mr
Katsande, the OR manager, heard that maintenance is being done by Dineo, he
became very angry and demanded that Moji should be the one to do the work.
Moji’s response was, ‘shut up, you are not my boss’.

Answer the following questions:

(i) With reference to applicable legal authority, discuss the following -

- whether Moji is an employee or independent contractor in both
establishments;
- whether Mr Katsande’s demand is legally correct and;
- whether Mr Katsande is entitled to discipline Moji for the ranting. (15)

1.2 Finky and Hendriet work for Pretoria Zoo SA (Pty) Ltd (‘PSA’). Their duty is to feed
two lions (one lion each). They work same shift and are both fifty years of age.
Finky started working for PSA in 1994 while Hendriet started in the year 2000.
Both have the same qualification, however, Finky earns more than Hendriet.

Write a legally supported opinion regarding their pay difference and fairness
thereof while their duties are practically the same. [Your opinion should not exceed
one page]. (10)
[25]

QUESTION 2

2.1 Eva was employed by Seboko General Dealer (Pty) Ltd (‘SGD’) which has been
operating in the city of Polokwane for five years. For the past two years Eva’s sales
were excellent. In December 2019, she signed a performance agreement which
stated that she must sell Fifty Thousand Rands (R50 000.00) worth of stock
monthly. Her job included working inside and outside the business premises selling
the employer’s products. For this purpose, she was equipped with a car, loaded

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MRL3702
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petrol card and a cellphone with airtime. With mounting pressure to meet agreed
sales target and fear of possible job loss if the target is not met, Eva tried her best
under the strict COVID 19 regulations in the first half of 2020, but was unfortunately
arrested on the 25th July 2020 for breaking the COVID 19 regulation to remain
indoors. Two months later, she received a letter from SGD which stated that she
was dismissed with immediate effect for incapacity due to her failure to meet
agreed sales target.

Answer the following question:

(i) With reference to applicable legal authority, discuss the nature of the
incapacity Eva is accused of and whether her dismissal may be
substantively and procedurally fair. (15)

2.2 List five (5) employers who for the purposes of affirmative action are regarded as
‘designated employers. (10)
[25]

QUESTION 3

3.1 Melisa who is employed by GG Logistics (‘GG’) is a member of Trusted Employees

Association (‘TEA’). Melisa was elected as a trade union representative in 2018
due to her involvement in TEA’s activities and her role in assisting fellow
employees when they have employment related issues in the workplace. In May
2020, Melisa was promoted to the position of operational manager within GG and
as a result she is now involved in the formulation of GG’s approach to various
matters during annual negotiations with TEA.

With reference to applicable legal authority, discuss whether GG can force

Melisa to terminate her membership with TEA, due to her new position. (10)

3.2 FF Trade Union (‘FFTU’) has members within CC (Pty) Ltd (‘CC’). On a monthly
basis FFTU struggles to collect subscription fees from its members. As a result
FFTU approaches CC in order to acquire the right to the deduction of subscription
fees from its members. Discuss ‘the deduction of subscriptions’ as one of the
organisational rights provided for in terms of the LRA. (5)

3.3 Remmogo Workers Association (‘RWA’) is the only trade union representing
employees within LL Construction (‘LLC’). RWA approaches LLC to negotiate a
wage increase for employees, however, LLC seems reluctant to start negotiations.
RWA argues that LLC is obliged to negotiate with it because the Constitution
provides that trade unions have the right to engage in collective bargaining.

Advise LLC on whether the right to engage in collective bargaining implies that
there is an enforceable right to bargain collectively and how the LRA promotes and

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MRL3702
October/November 2020

encourages bargaining in South Africa. (15)

[30]

QUESTION 4

4.1 Members of Babereki Mmogo Association (‘BMA’) are dissatisfied about the
changes made by the employer to their working hours. BMA members want to
engage in a protected strike to force the employer to revert to the old working
hours; however, without following the requirements prescribed by the LRA for a
protected strike.

What are the circumstances under which members of BMA need not comply with
procedural requirements set by the LRA in order for the strike to be protected? (5)

4.2 Trade Union A and Employer B start negotiations regarding an annual wage
increase. Parties fail to reach agreement because the employer thinks that the
union’s demand is unreasonably high, given the poor financial performance by the
company as a result of the COVID-19 lockdown. The union is unhappy about this
and without following the procedure prescribed by the LRA, calls its members to
engage in a strike action. The employer instructs employees on strike to resume
their duties, however, they refuse, and it now contemplates dismissing them for
participating in the strike.

Advise the employer on the requirements set by the LRA which must be complied
with for the dismissal of employees who are engaged in the strike to be fair. (15)
[20]
TOTAL: [100]

©
UNISA 2020

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MRL3702
October/November 2020

ANNEXURE A

PLAGIARISM DECLARATION

Student name: __________________________________________________________

Student number: ________________________________________________________

Course code: ___________________________________________________________

I know that plagiarism is to use another’s work and pass it off as one’s own work.
I know that plagiarism is wrong.
I confirm that this portfolio is my own work.
I have acknowledged all sources that I have used.
I have not directly copied anything from the internet or from any other source.
I have indicated every quotation and citation in a footnote or bracket linked to that
quotation.
I have not allowed anyone else to copy my work so as to pass it off as their work.
I understand that if any unacknowledged copying whatsoever appears in my portfolio, I
will receive 0% for the portfolio.
I am aware of the UNISA policy on plagiarism and understand that disciplinary
proceedings can be instituted against me by UNISA if I contravene this policy.

Signed by ……………………………………….

Date ………….....................

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Michelle Fisher
Student Nr.: 60996552
P.O. Box 9612
Eros
Windhoek
Namibia
9000
MRL3702 – Labour Law
October / November 2020 Examinations

QUESTION 1:

1.1 (i) The definition of an employee is contained in section 213 of the Labour
Relations Act 66 of 1995 as any person who works for another person,
including the State, and who receives or is entitled to receive remuneration,
and any other person who assists in the conduction of the business of an

m
employer. An independent contractor is a person who works for or supplies

er as
services to a client as part of such person’s business undertaking or

co
professional practice. Both employees and independent contractors perform

eH w
work in exchange for payment, however and independent contractor is not

o.
protected by labour legislation.
rs e
ou urc
A distinction between an employee and an independent contractor needs to be
drawn, by following the following tests:
o
aC s

1. The control test: This test looks at the control over the type of work being
v i y re

done by a person, the manner in which the work must be done and when
the work must be done.
2. The organisational or integrational test: This test determines whether a
ed d

person is part and parcel of the business and whether the person’s work is
ar stu

integrated into the business of the employer and is not just an accessory to
the business.
3. The multiple or dominant impression test: This test is favoured by the South
sh is

African courts and is often regarded as the standard test to be used. It relies
on the employment relationship as a whole and considers many factors
Th

instead of concentrating on one factor.

4. The presumption as to who is an employee: In 2002, the Labour Relations
Act, 1995 and the Basic Conditions of Employment Act 75 of 1997 were
amended to include an new presumption with the necessary guidelines to
be used in determining whether a person is an employee. This is contained
in section 200A of the Labour Relations Act, 1995 and in section 83A of the
Basic Conditions of Employment Act, 1997.

Given the facts of the scenario, Moji’s business is employed by OR

International Airport. The scenario is relatable to the matter of Denel (Pty) Ltd v
Gerber [2005] 9 BLLR 849 (LAC), in which as Ms. Gerber provided services to
Denel (Pty) Ltd as an alleged employee when a contract was concluded
between Denel (Pty) Ltd and a company of which Ms. Gerber was a
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shareholder and director. The Labour Appeal Court determined that the owner
of a company (Ms. Gerber) can be found to be an employee of another
company (Denel (Pty) Ltd), having dealt with the contract between the parties
and their relationship with each other.

Moji will be employed as a fixed-term employee, as his work relates to the

building, installing and maintaining of security features, which is a specified job
with a limited or defined duration.

Mr. Katsande’s demand is legally correct as Dineo is Moji’s girlfriend, she is not
employed as a “young and technically skilled graduate from UNISA” as per
Moji’s business forum. She is therefore not qualified to do the job.

Mr. Katsande is entitled to discipline Moji based on misconduct of insolence, in

that Moji was being disrespectful and rude.

m
er as
1.2 Section 6 (4) of the Employment Equity Act 55 of 1998 provides for the prohibition

co
of unfair discrimination and is referred to as the ‘equal pay’ provision. This section

eH w
prohibits the discrimination of employees who do the same work or work of equal

o.
value for the same employer. However, an employer may also use the same
rs e
arguments to defend an ‘equal pay’ discrimination claim, and in this scenario, Finky
ou urc
and Hendriet’s employer may rely on the regulations issued in the Employment
Equity Regulations, 2014, contained in the Government Notice R595 of
Government Gazette 37873 of 1 August 2014, and a Code of Good Practice on
o

Equal Pay/Remuneration for Work of Equal Value, contained in Government Notice

aC s

488 of Government Gazette 38837 of 1 June 2015.

v i y re

In terms of regulation 4, the work performed by an employee will be the same as

the work of another employee of the same employer if the work is identical,
ed d

however, in terms of regulation 7, an employer can raise a defence against ‘equal

ar stu

pay’ discrimination. In this scenario such defence by the Pretoria Zoo SA (Pty) Ltd
would be the seniority or length of service Finky has provided to Pretoria Zoo SA
(Pty) Ltd, as she has been employed since 1994 and Hendriet only since 2000.
sh is

Finky has seniority in the position of feeding lions of 6 years over Hendriet, and
Th

therefore Finky earns more than Hendriet.

QUESTION 2:

2.1 (i) The nature of Eva’s incapacity is that she was unable to do the job, through no
fault of her own. Her dismissal is based on incapacity to perform and/or poor
work performance.

The dismissal for incapacity is a process over time though which an employer
will try to address the problem and, in the process of doing so, will possibly
acquire a reason to dismiss. The substantive and procedural fairness
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connected to dismissal for incapacity are interdependent, and the process is to

ensure substantive fairness.

Substantive fairness for the dismissal of poor work performance, in terms of

item 9 of The Code of Good Practice: Dismissal contained in Schedule 8 of the
Labour Relations Act, 1995, is guided by whether or not the employee failed to
meet a required performance standard, whether an employee was aware of
the required performance standard or could reasonable be expected to have
had knowledge thereof, whether the employee was given a fair opportunity to
meet the required performance standard and whether dismissal was the
appropriate sanction for such inability to meet the required performance
standard.

Eva did not meet the required performance standard due to circumstances
beyond her control, being restricted by the COVID 19 regulations. However, as
she was provided with a cellphone with airtime, which provides her with the fair
opportunity to meet the required performance standard. She was provided with

m
the necessary resources to contact clients, even though she could not travel

er as
during the strict COVID 19 regulations.

co
eH w
Procedural fairness, however, was not met as Eva was not given the

o.
opportunity to improve, nor was there an investigation as to why she was not
rs e
able to meet the required performance standards. JDG Trading (Pty) Ltd t/a
ou urc
Price ‘n Pride v Brunsdon (2000) 21 ILJ 501 (LAC) provides authority that the
employee affected by the dismissal should be given an opportunity to make
representations and deal with the unfavourable conclusions regarding her
o

performance before a final decision to dismiss is made.

aC s
v i y re

2.2 - An employer who employs 50 or more employees;

ed d
ar stu

- An employer who employs less than 50 employees but whose annual

turnover in any given year exceeds a certain level. These levels are
provided in Schedule 4 of the Employment Equity Act, 1998.
sh is

- Municipalities;
Th

- Organs of State as defined in section 239 of the Constitution of the Republic

of South Africa, 1996; and

- An employer appointed as a designated employer in terms of a collective

agreement.

QUESTION 3:

3.1 The Labour Relations Act, 1995 provides protection of the freedom of an employee
to join a union or to partake in the formation of a union. This is contained in section
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4 of the Labour Relations Act, 1995, and this includes employees in senior
managerial positions. However, this may prove to be difficult, as a senior manager
who is involved in annual wage negotiations with an employer may not be able to
attend to his/her duties fully and properly if he/she is the union member wo is doing
the bargaining.

In the case of Independent Municipality & Allied Trade Union & Others v
Rustenburg Transitional Council (2000) 21 ILJ 377 (LC) the employer adopted a
resolution which prohibited its employees in senior managerial positions from
serving in executive position in the trade union or to be involved in trad union
activities. The court held that the resolution was in contravention of the Constitution
of the Republic of South Africa, 1996 and section 4 of the Labour Relations Act,
1995, however it stated that there were certain limitations with regard to section 4
of the Labour Relations Act, 1995, such as the common law principle that
employees owed an employer a duty of good faith. Due to the conflicting aims of
trade unions and employers, the participation in union activities could be a breach
of this duty fidelity, in terms of common law principles and especially with regards

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to the senior managerial employees. Although the rights contained in section 4 of

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the Labour Relations Act, 1995 are ‘unequivocal and unconditional’, the rights are

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not unlimited, as employees and senior managerial employees may join unions
and partake in the union affairs, but they still have a contractual duty towards the

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employer. Senior managerial employees might be held accountable for incapacity if
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they refuse to undertake the duty of disciplining union members. Also, due to the
senior managerial employee’s access to confidential information of the employer,
the senior managerial employee must be carful when dealing with unions and not
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disclose this information.

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This decision was adopted in the matter of FAWU & Another v The Cold Chain
[2007] 7 BLLR 638 (LC), in which the court held that the dismissal of an employee,
who refused the offer of a higher position as an alternative to being retrenched and
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was subsequently retrenched due to his refusal, was automatically unfair.

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GG Logistics will therefore not be able to force Melisa to terminate her membership
with Trusted Employees Association as she has the right to joint a union and to
partake in its activities. Melisa, however, will need to be careful due to her new
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position in of operational manager, which is a senior managerial position, as she

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must still act in good faith towards her employer, GG Logistics. She will have
access to privileged and confidential information regarding her employer, which
she must be careful not to disclose to the union during wage negotiations and/or
disciplinary actions against her fellow union members employed by GG Logistics.

3.2 Union membership subscriptions are an important source of income for trade
unions. The task of collecting such membership fees may however prove difficult.
The use of ‘stop-order’ facilities is a favourable method of collecting such
membership fees. This will entail an employer to deduct the membership fees from
the union member’s wages and pay same over to the union on a regular basis in a
lump sum.
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A member of a registered trade union may authorise an employer in writing to

deduct the membership subscription from his/her wages, in certain circumstances
as stated in section 13 of the Labour Relations Act, 1995, and such
employee/member of the trade union may also revoke such authorisation by giving
a month’s written notice to the union and the employer. After this notice period the
employer must stop making the deduction from the employee/member’s wages.
Employees in the public service must provide three months’ notice in this regard.

3.3 The right to engage in collective bargaining in terms of section 23(5) of the
Constitution of the Republic of South Africa, 1996 does not impose an enforceable
right to bargain collectively, as was provided for in the matter of South African
National Defence Union v Minister of Defence & Others, Minister of Defence and
Others v SA National Defence Union & Others (2006) 27 ILJ 2276 (SCA), where
the Supreme Court of Appeal held that the constitutional provision does not impose
a judicially enforceable obligation to bargain on employers or employees.

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The Labour Relations Act, 1995, however, supports collective bargaining as a

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mechanism for regulating the terms and conditions of employment and to resolve
disputes. This is done by the Labour Relations Act, 1995 in that it:

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1. Provides effective protection of the right of employees to join, form and
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participate in the activities of registered trade unions;
2. Enables trade unions to obtain organisational rights, which enhances their
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position in the workplace and makes it easier for the trade unions to persuade
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or force employers to bargain collectively with them;

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3. Permits employees to strike in an attempt to force an employer to bargain

collectively with them; and
4. Regulates the legal status and enforceability of the product of collective
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bargaining, being a collective agreement. This makes collective bargaining

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more effective.
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QUESTION 4:
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4.1 - If the parties to the dispute are members of a bargaining council and the
dispute followed the procedure set out by the council’s constitution;

- If the parties concluded a collective agreement with the prescribed

procedures to be followed before they strike, and they have complied with
the agreement;

- If the employer implements and unprotected lock-out and the employees

strike in response to that and vice versa;

- If a strike takes place after an employer as unilaterally changed the terms

and conditions of employment, and the employer fails to rectify this despite
prior warning to do so; and
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- If an employer refuses to bargain with a union, in which case the dispute

must first be referred for conciliation and then for advisory arbitration before
notice of a strike can be given.

4.2 When evaluating the fairness of dismissal of employees who are engaged in the
strike, one must consider the provisions of The Code of Good Practice: Dismissal
contained in Schedule 8 of the Labour Relations Act, 1995.

The substantive fairness of the dismissal of employees who are engaged in the
strike is determined when considering the following factors:

1. the seriousness of the contravention of the Labour Relations Act, 1995;

2. the attempts made to comply with the Labour Relations Act, 1995; and

3. whether or not the strike was in response to unjustified conduct by the

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employer.

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When determining the procedural fairness of such dismissal, one must determine:

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1. The employer must, at the earliest opportunity, contact the trade union
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official to discuss the course of action it intends to adopt; and
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2. The employer should issue an ultimatum to its employees and the trade
union in clear and unambiguous terms that should state what is required of
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the employees and the sanctions that will be imposed should they not
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comply with the ultimatum. Sufficient time should be given to the employees
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to reflect on the ultimatum and to respond to it, which response will be to

either complying with the employer’s ultimatum or by rejecting the
employer’s ultimatum.
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BIBLIOGRAPHY:

Books:

Basson AC et al The New Essential Labour Law Handbook (2019) Labour Law
Publications CC.

Cases Law:

Denel (Pty) Ltd v Gerber [2005] 9 BLLR 849 (LAC).

FAWU & Another v The Cold Chain [2007] 7 BLLR 638 (LC).

Independent Municipality & Allied Trade Union & Others v Rustenburg Transitional
Council (2000) 21 ILJ 377 (LC).

JDG Trading (Pty) Ltd t/a Price ‘n Pride v Brunsdon (2000) 21 ILJ 501 (LAC).

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South African National Defence Union v Minister of Defence & Others, Minister of
Defence and Others v SA National Defence Union & Others (2006) 27 ILJ 2276

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(SCA).

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Legislation:
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The Constitution of the Republic of South Africa, 1996.
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The Basic Conditions of Employment Act 75 of 1997.

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The Employment Equity Act 55 of 1998.

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The Labour Relations Act 66 of 1995.

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PLAGIARISM DECLARATION

Student name: MICHELLE FISHER,

Student number: 60996552
Course Code: MRL3702

I know that plagiarism is to use another’s work and pass it off as one’s own work.
I know that plagiarism is wrong.
I confirm that this portfolio is my own work.
I have acknowledged all sources that I have used.
I have not directly copied anything from the internet or from any other source.

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I have indicated every quotation and citation in a footnote or bracket linked to that

er as
quotation.

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I have not allowed anyone else to copy my work so as to pass it off as their work.

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I understand that is any unacknowledged copying whatsoever appears in my portfolio, I
rs e
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will receive 0% for the portfolio.
I am aware of the UNISA policy on plagiarism and understand that disciplinary
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proceedings can be instituted against me by UNISA if I contravene this policy.

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v i y re

Signed by: Michelle Fisher

Date: 13 November 2020
Place: Windhoek, Republic of Namibia
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MAY/JUNE 2020

MRL3702
LABOUR LAW
100 marks

24 Hours Portfolio Examination

This paper consists of 5 pages.

PLEASE READ THE FOLLOWING INSTRUCTIONS CAREFULLY BEFORE

ANSWERING QUESTIONS

(1) The examination question paper counts 100 marks. ANSWER ALL QUESTIONS.
(2) The cover page to your portfolio must include your name, student number and the module code.
(3) This is an open-book examination. You may consult your prescribed study material during the
examination. You may however not consult another person to assist you answer questions. You
may also not assist another student in answering questions.
(4) All answers must refer to relevant legal authority.
(5) The duration of the examination is 24 hours. Your portfolio must be submitted via myUnisa on
Saturday, 20 JUNE 2020 on or before 11h30 (Central African Time). LATE SUBMISSIONS WILL
NOT BE MARKED.
To submit your portfolio via myUnisa:

• Go to myUnisa.
• Log in with your student number and password.
• Select the module.
• Click on “Assignments Info” tab in the menu on the left-hand side of the screen and look
for the summative assessment which is classified as a ‘portfolio’.
• Follow the instructions to submit your portfolio.
(6) If your answers are typed, ensure that the following requirements are adhered to. Items 6.2; 6.3;
6.4; 6.7 & 6.8 apply to written assignments as well.
6.1 All the pages must be numbered in the bottom right hand corner of the page.
6.2 Your exam answers must be submitted in PDF format.
6.3 Portfolio answers must not exceed ten (10) typed pages or twelve (12) written pages.
6.4 Please adhere to the length restrictions. Do not submit an answer exceeding two (2)
pages for Question 1(i). Your answers for the Portfolio Examination may not exceed 10
(ten) typed pages (all inclusive) or 12 (twelve) handwritten pages (all inclusive). If your
answer exceeds the prescribed length, we shall stop marking when your answer reaches
the page limit.
6.5 Your exam must be typed in Arial 12pt with single line spacing within the paragraph, and

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MRL3702
May/June 2020

double line spacing after the paragraph.

6.6 The text must be justified.
6.7 South African English and not American English should be used. For example, the correct
spelling is “Labour” and not “Labor”.
6.8 Do not use abbreviations or SMS language.
6.9 All quotes that are two lines long (or less), must form part of the main text, be written in
italics, and be bracketed by quotation marks. Where a quotation is longer than two lines, it
must be typed in a separate paragraph in italics in size 11 font and must be indented by 1
cm. No quotation marks are required when the quotations stand alone. Use quotations very
sparingly. In this portfolio, a maximum of 5% of the text may be quoted.
(7) When answering the portfolio questions, remember that an open-book exam is a test at a higher
level than the usual type of exam, where memory is tested as much as insight. In an open-book
exam, you need not memorise any information. You are expected to prove that you can use
information, rather than merely repeat it. In brief, what is being tested is factual knowledge,
understanding and the correct application thereof, not memory skills. For this reason, you do not
earn marks by merely detailing a list of all the information that you think might be relevant to a
particular question. This gives no indication that you know what statutory or other provisions are
applicable in a specific context. You are expected to identify precisely what information applies,
and then explain why you think so. Also, because you have the guide available when answering
questions, we do not give marks for direct quotations from the guide. You are therefore assessed
on your level of understanding of the legal principles by looking at how well you applied the
principles to the questions. PLEASE DO NOT CUT AND PASTE ANSWERS FROM THE STUDY
GUIDE (OR YOUR TEXTBOOK).
(8) You must familiarise yourself with the UNISA rules pertaining to plagiarism. Plagiarism will result
in zero marks, disciplinary action, and possible expulsion from UNISA.
(9) The arguments that you make must be logical, well-structured and substantiated by all of the
relevant legal principles. You are given 24 hours to complete the portfolio. Use the time given
wisely.
(10) Several students lose marks because they do not approach problem-type questions correctly.
When answering such questions, it is important to first clarify for yourself the area of work where
the answer must be sought. Once you have done this, set out the relevant legal principles. Deal
only with those principles that relate to the given facts. Next, apply these principles to the facts.
This is where most of the students lose marks - they set out the law in some detail, but then do not
illustrate how it applies to the factual situation they have been asked to solve. Finally, state your
conclusion.
(11) You must attach a signed plagiarism declaration to your exam. Exam scripts sent without signed
plagiarism declarations will not be marked.
(12) MARK COMPOSITION – UNIVERSITY RULES:

12.1 Aegrotat candidates: Please take note that your year mark contributes 40% towards your
final mark.
12.2 Supplementary candidates: Please take note that your year mark will not contribute
towards your final mark. Your exam mark is the final mark.
PLEASE NOTE:
If you experience technical problems, of any kind, on the day of the examination and your examination
answers are not submitted by the cut-off time, you will be marked as absent and automatically deferred to
the October/November 2020 exam period. No other type of submission of your examination answers will
be accepted.

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MRL3702
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QUESTION 1

Naomi and Piet who are twenty-five (25) and thirty (30) years of age respectively, work
for Marothi Marketing & PR (Pty) Ltd (‘MMP’), a company based in the Kwa-Zulu Natal
Province (KZN). The nature of MMP’s business requires Naomi and Piet to do ‘out of site’
work, marketing and selling the employer’s products to potential clients across the
country. One evening after a very long day in the Mpumalanga Province, Naomi
suggested that they (Naomi and Piet) go for a night out to celebrate the successful
multibillion rand deal they secured with one of the biggest companies in the industry.
While out there enjoying themselves in a club, Naomi made sexual advances to Piet and
very often asked him questions regarding his sexuality. Amongst others, Naomi asked
Piet whether he had a girlfriend; was he happy; she even lifted her breasts up and asked
what he thought of her (Naomi) and that, given a chance, she would make Piet forget his
girlfriend. Piet was not comfortable with Naomi’s conduct, but he did not express that to
her, he instead just smiled that off and they continued with drinks. Later when they left
the club, Naomi said the following; ‘Piet, please do not mind the jokes I made earlier’.
Answer the following questions:
(i) Write a well-supported legal opinion in which you discuss whether or not
Naomi’s conduct above may constitute sexual harassment. [Opinion length
must not exceed 2 pages]. (15)

(ii) Assume that, Piet reported Naomi to the employer but two years later nothing
was done about the matter. Out of frustration, Piet resigned and approached
the CCMA, where he claimed that, the employer had unfairly dismissed him.

With reference to relevant legal authority, advise Piet on the nature of his claim;
whether it is valid, and how that claim can be proven? (10)
[25]
QUESTION 2

2.1 Mampho, who is an unemployed, but qualified accountant, was invited by a friend
to a birthday party. While at the party she met the owner of Maphosa Nuts Factory
(‘MNF’), Ms Mothiane and the two exchanged phone numbers. The following day,
Ms Mothiane called Mampho and told her that, the factory needs an accountant
and they both agreed that Mampho would start on Monday. Unfortunately, on
Monday Mampho missed the bus and could not report for work. The following
morning, she woke up very early, caught the bus and arrived on time only to be
told that, someone else was called the previous day to take up the job.

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MRL3702
May/June 2020

She felt betrayed and claimed to have been dismissed. However, MNF argued
that, Mampho was not employed and could not, therefore, claim dismissal.

Answer the following questions:

(i) Discuss the legal position regarding the situation Mampho and MNF find
themselves in. Your answer must cover the following: whether there was an
employment relationship between them; whether there was a dismissal; if
indeed there was a dismissal, whether it was a fair sanction and the legal
remedies if any, Mampho has. (15)

(ii) What does fair dismissal mean? (2)

2.2 List four ways through which employment may be terminated. (8)
[25]

QUESTION 3

3.1 Millennium Workers Association (‘MWA’), is a registered trade union with members
within MM Bakery ‘(MMB’). MWA wants to acquire certain organisational rights
within MMB, however MMB rejects the request because MWA is a minority trade
union within the workplace.

Advise MWA on the methods it can use to acquire organisational rights within MMB
even though it is a minority trade union. (13)

3.2 Steel Workers Union (‘SWU’) and Steel Employees Association (‘SEA’) both have
members within Pretoria Steel Manufacturers (‘PSM’). SEA is the majority trade
union within PSM and has concluded a collective agreement with PSM which
states that all employees within the company will use a clocking system and will
work overtime on Saturdays. SWU argues that this agreement is not applicable to
its members, as it (SWU) was not part of the agreement and it would therefore be
unlawful to enforce the agreement to its membership. PSM and SEA argue that,
the agreement binds all employees within PSM.

Advise SWU on whether the agreement can lawfully be applied to its members as
well. Substantiate your answer. (12)
[25]

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MRL3702
May/June 2020

QUESTION 4

4.1 United Municipal Workers (‘UMW’) is a trade union which represents employees
within the water supply department of Katlego Municipality (‘KM’). UMW
approaches the municipality for an across-the-board wage increase of 12%. The
municipality argues that due to corruption and maladministration by the previous
mayor and municipal manager, it could only afford a 3% increase. Members of
UMW are unhappy about this and are considering ways to pressurize KM to
accede to their demand.

Advise members of UMW on whether they can engage in a strike in support of

their demand. (12)

4.2 Quality Tiles (‘QT’) is a company that manufactures floor tiles in Mamelodi. Tile
Mix (‘TM’) is a company operating in Witbank, which supplies QT with cement to
manufacture tiles. Tiles Employees Association (‘TEA’) is a trade union with
members in both companies (QT and TM) and has a dispute with QT regarding
the new shift system. This ends up in a strike action by members of TEA employed
by QT, however members of TEA, employed by TM also want to engage in a strike
in support of the demand by employees of QT.

Discuss the nature of the two strikes (the strike by employees of QT and the strike
by employees of TM) and the procedural requirements, which TEA and its
members must comply with in order for both strikes to be protected in terms of the
LRA. (13)
[25]
TOTAL: [100]

©
UNISA 2020

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MAY/JUNE 2020 ONLINE EXAM

QUESTION 1

i. Sexual harassment
Sexual harassment is an unwelcome conduct of a sexual nature that violates the rights of an
employee, conduct that constitutes a barrier to equity in the workplace, and action based on sex
and/or gender and/or sexual orientation, whether the conduct was unwelcome or not. There are
three types of conducts which constitute sexual harassment and these are: Physical conduct
from touching to sexual assault, rape and strip search by or in the presence of opposite sex;
Verbal conduct innuendoes, suggestions and hints, sexual advances, comments with sexual
overtones, sex-related jokes or insults, comments about a person’s body made to that person or
in their presence, enquiries about a person’s sex life or even whistling at a person or group of
persons; and Non-verbal conduct gestures, indecent exposure or the display of sexually explicit
pictures and objects.
There are also three common types of harassment which include: Quid pro quo harassment a
man/woman is forced into surrendering to sexual advances against his/her will for fear of losing a
job-related benefit such as an increase in salary or promotion. It usually happens in a
relationship of actual power. Sexual favouritism where a person in authority rewards only those
who responds to his/her sexual advances while victimisation occurs where an employee is
victimised or intimidated for failing to submit to sexual advances. Hostile working environment
here an abusive working environment is created. An employee finds it difficult to work under such
environment because of sexual jokes made, sexual propositions or other sexual innuendoes
which are offensive to an employee but not necessarily against him or her personally.
Pornographic pictures on office walls also fall under this type of harassment.

To prove whether sexual harassment is present under any circumstances the conduct has to
attain a certain level or degree of unacceptability. The courts have put forward three tests in
determining the existence of sexual harassment:

 Subjective test which includes exclusive reliance on the perceptions of the victim, whether the
victim experienced conduct as unwelcome or offensive then the conduct would constitute
harassment. This test has been criticised for its broader scope of application because the
victim might be over sensitive. A purely subjective test would mean that one would have to
take the complaining employee’s word even though there is no fault on the part of the

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employer or perpetrator seen in the context of the nature of the conduct and surrounding
circumstances.
 Objective test which focuses on a reasonable person test. This tests focuses on the
circumstances of the case and the values of society. The reasonable person standard tries to
determine whether the perpetrator foresaw or should have reasonably foreseen that his/her
conduct would constitute sexual harassment. This test has been criticised for being too
narrow a test and as such implies reliance on traditionally male dominated values which runs
the constant risk of denying the experience of women in the workplace.
 Reasonable victim test trying to reach a compromise between the first two mentioned tests.
Here experiences of the victim are taken into account as well as the surrounding
circumstances and the presence of fault on the part of the perpetrator. The victim and his/her
conduct are placed under scrutiny. The advantage of this test is that no single factor will be
decisive, all the factors surrounding the incident will be considered.
The Code states that sexual harassment is unwelcome conduct of a sexual nature that violates
the rights of an employee and constitutes a barrier in the workplace taking into account the
following factors;

 Whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual
orientation
 Whether the sexual conduct was unwelcome;
 The nature and extent of the sexual conduct; and
 The impact of the sexual conduct on the employee (victim).
In Motsamai v Everite Building Products1 it was held that sexual harassment is the most heinous
misconduct that plagues a workplace, it undermines the dignity, integrity and self-worth of the
employee harassed and goes to the root of one’s being and must therefore be viewed from the
victim’s perspective and whether such perspective is a reasonable perception.

Application to the facts

Sexual harassment is present on the facts. Naomi committed verbal sexual harassment by
making sexual related jokes and making unwelcome and inappropriate enquiries about Piet’s sex
life. She also committed Non-verbal forms of sexual harassment by making unwelcome gestures
indecent exposure, and the unwelcome display of her body. All three tests mentioned above may
be employed to reach a decision as to whether sexual harassment is present. Our courts are

1 Motsamai v Everite Building Products (Pty) Ltd [2011] 2 BLLR 144 (LAC) [20].

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however, more willing to follow the reasonable victim test as it takes factors of both parties into
consideration.

ii. Constructive dismissal

In cases of sexual harassment an employee who resigned may want to argue that there was
constructive dismissal. If the employee can prove that there was a constructive dismissal in that
the employer made continued employment intolerable and can show that discrimination in the
form of harassment gave rise to that constructive dismissal, the employer’s conduct may
constitute an automatically unfair dismissal. In terms of section 186(1)(e) of the Labour Relations
Act constructive dismissal refers to when an employee terminated employment with or without
notice because the employer made continued employment intolerable for the employee.

The courts have been willing to entertain claims for compensation on the basis of an
automatically unfair dismissal and claims for compensation and/or damages arising from
discrimination where both causes of action arose from the same set of facts. In Ntsabo v Real
Security CC2 the employee resigned after sexual harassment by a superior and the failure of her
employer to take steps against the harasser. She pursed both a claim for unfair constructive
dismissal in terms of the Labour Relations Act and unfair discrimination in terms of the
Employment Equity Act. The Labour Court held that it could award compensation for the unfair
dismissal as well as damages in terms section 50 of the Employment Equity Act.

In ARB Electrical Wholesalers v Hibbert3 the court held that an employee who wants to claim for
both automatically unfair dismissal and unfair discrimination flowing from the same facts can be
permitted to do so. The claimant will claim compensation for an automatically unfair dismissal on
being discriminated against under the Labour Relations Act and to claim compensation for
unfairly discriminated under the Employment Equity Act and should do so under a single action.
It was further held that a party who institutes two separate claims flowing from the same cause of
action may face a costs order for not combining the two claims.

In Pharmaco Distribution (Pty) Ltd v W4 the principle laid down in Hibbert, that is, warning agains
double-dipping in a case of two overlapping claims for compensation in terms of the LRA and
EEA, was extended to the simultaneous institution of a claim for compensation in terms of the
LRA and a claim for damages in terms of the EEA. The court held that the claim for

2 Ntsabo v Real Security CC [2004] 1 BLLR 58 (LC).

3 ARB Electrical Wholesalers v Hibbert (2015) 36 ILJ 2989 (LAC) [27].
4 Pharmaco Distribution (Pty) Ltd v W (2017) 38 ILJ 2496 (LAC).

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compensation under section 194(3) of the LRA and claim for damages under section 50(2)(b) of
the EEA flowing from the same wrongful conduct would not be just and equitable as it would
amount to penalizing the employer twice.

A victim of harassment may also institute a civil claim against the perpetrator based on delict or
the employer either based on the common law principles of vicarious liability for delict or possibly
for breach of common law contractual duty to provide safe working conditions. These safe
working conditions include psychological safety.5

Application to the facts

Piet has a valid claim. He reported Naomi’s sexual advances towards him and the employer did
not act to protect him. This constitutes intolerable working environment as issues of sexual
harassment are very serious. Piet was frustrated because his cry for help was not taken
seriously. Depending on the crsumstances of the case, Piet can claim both non-patrimonial loss
under section 50(2)(b) of the EEA and compensation under section 194(3) of the LRA, this has
however been criticised in the Pharmaco Distribution case. Lastly, Piet can claim delictual
damages from the employer through vicarious liability principle or against Naomi based on delict
as well.

QUESTION 2

2.1 Dismissal
i. Employment relationship
Whether there was an employment relationship between them
For one to determine whether there is an employment relationship one has to tell whether the
person in question falls within the definition of an employee. The Labour Relations Act in section
213 defines an employee as any person, excluding an independent contractor, who works for
another person or for the State and who receives, or is entitled to receive, any remuneration and
any other person who in any manner assists in carrying on or conducting the business of an
employer.

5 Media 24 Ltd & Another v Grobler (2005) 26 ILJ 1007 (SCA).

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The following are factors that will lead to the presumption that a worker is an employee in terms
of section 200A of the Labour Relations Act, the manner in which the person works is subject to
the control or direction of another person; the person’s hours of work are subject to the control or
direction of another person, in the case of a person who works for an organisation, the person
forms part of that organisation; the person has worked for that other person for an average of at
least 40 hours per month over the last three months; the person is economically dependent on
the other person for whom he or she works or renders services; the person is provided with tools
of trade or work equipment by the other person; or the person only works for or renders services
to one person.

In Wyeth SA (Pty) Ltd v Manqele and Others6 it was held that the term employee in the Labour
Relations Act encompasses a person who has concluded a contract of employment but who has
not yet started working. The practical import of this decision is that a person who has concluded
a contract of employment even though he/she has not yet started working is more than an
applicant for employment and already has access, not only to protection against unfair
discrimination in terms of the Employment Equity Act but also protection against unfair labour
practices and unfair dismissal in terms of the Labour Relations Act.

Application to the facts

In the given set of facts, Mampho falls under the definition of employee. Firstly, because there
was an agreement between the two parties that Mampho would render services for the employer
and thus meeting the requirements of the definition of employee. Wyeth case answers the
question of whether the facts that she had not yet commenced work counts, and the answer is it
does not count against her because a contract of employment was concluded between the
parties. Mampho is subject to the protection afforded to employees.

In terms of section 186(1)(a) there was a dismissal, termination without a notice. There was no
notice under the circumstances by the employer. Usually an employer will terminate a contract
without notice if the employee committed a material or serious breach of contract. The sanction
was fair because Mampho breached the contract, she was absent from work thus misconduct, a
ground for dismissal. Mampho does not have any remedies because she is the guilty party.

6 Wyeth SA (Pty) Ltd v Manqele and Others (2005) 26 ILJ 749 (LAC).

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ii. Fair dismissal a dismissal which is procedurally and substantively fair. It has to meet both
procedural and substantive requirements. There are 3 forms of fair dismissal, dismissal based on
misconduct of the employee, incapacity of the employee, and operational reasons of the
employer

2.2 Termination of employment contract

1) Termination by agreement
2) Termination on insolvency
3) Termination as a result of breach of contract
4) Termination on notice

QUESTION 3

3.1 The acquisition of organisational rights

i. Through collective agreement
The LRA makes provision for a registered trade union and an employer or employers’
organisation to conclude a collective agreement that regulates organisational rights. This
means that, even if the trade union is not representative, it could have organisational rights
on which the parties agreed.

ii. Through membership of a bargaining council

A registered trade union that is party to a bargaining council, automatically acquires the two
rights of access to the premises and to have trade union subscriptions deducted by stop
order, in respect of all workplaces falling within the jurisdiction of the bargaining council. A
union acquires these rights irrespective of whether it is sufficiently representative or not.

iii. Through strike action

A union, including a minority union, may strike in support of a demand for organisational
rights even if it does not meet the statutory threshold for acquiring such rights.

iv. Through the section 21 procedure

This process entails that the registered trade union must notify the employer in writing that it
seeks to exercise organisational rights. Within 30 days they must meet to conclude a
collective agreement. If they do not conclude then either party can refer the dispute to the

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CCMA for conciliation. If no conciliation reached, then the parties can process to arbitration o
alternatively strike / lock out after serving appropriate notice.
- the representation of the trade union in that workplace. For a trade union to acquire
organisational rights it must either be sufficiently representative or have majority
representation in the workplace. The rights of access to the workplace; deduction of
membership fees and leave for trade union representatives require sufficient
representation, while election of trade union representative and disclosure of information
require majority representation. The LRA does not define sufficient representation,
however, section 21 provides certain guidelines in this regard.

- the workplace in which the union seeks to exercise the rights. For purposes of the private
sector, the Labour Relations Act defines workplace in its section 213 as the place or
places where the employees of an employer work. If an employer carries on or conducts
two or more operations that are independent of one another by reason of their size,
function or organisation, the place or places where employees work in connection with
each independent operation, constitutes the workplace for that operation’. In the public
sector, the workplace would be a national department, a provincial administration, a
provincial department or organisational component as contemplated in the Public Service
Act (promulgation 103 of 1994), or any other part of the public service as demarcated by
the Minister for Public Service and Administration.

- the rights that the trade union wants to exercise, and

- the manner in which the trade union wants to exercise those rights.

Application to the facts

Millennium Workers Association as a registered trade union can use either of the above methods
to acquire organizational rights from MM Bakery even though it has sufficient representivity
because that is not a bar to acquire such organisational rights.

3.2 The binding effect of a collective agreement

In terms of section 23 of the Labour Relations Act a collective agreement binds the following:
 The parties to the agreement
 A party to the agreement and the members of another party
 Trade union members and members of employers’ organisations

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 It may also be extended to employees who are not union members

In terms of section 23(1)(d) of the Labour Relations Act a registered trade union and an employe
may agree that a collective agreement they have concluded will be extended to and bind
employees who are not members of the said union and who may be members of another
competing union provided certain requirements are met:

1) The collective agreement must expressly state that it binds such employees;
2) That the employees must be expressly identified in the agreement; and
3) That the trade union that concluded the collective agreement in question must represent the
majority of employees working in the workplace.
Therefore, a minority trade union may be bound by the collective agreement which was
concluded between the employer and the majority trade union in terms of this section. Section
23(1)(d) has been constitutionally challenged before on the basis that it infringes the
constitutional rights of other employees, for instance, the right to strike. In AMCU v Chamber of
Mines7 the court found that section 23(1)(d) did indeed infringe on the right to strike but is a
justifiable infringement in terms of section 36 (limitation clause) of the Constitution.

Application to the facts

Therefore, the agreement can be lawfully applied to SWU members as well since the agreement
specifically includes all employees including SWU members and expressly binds all the
employees.

QUESTION 4
4.1 Prohibition on a strike
The Labour Relations Act defines a strike in its section 213 as the partial or complete concerted
refusal to work, or the retardation or obstruction of work, by persons who are or have been
employed by the same employer or by different employers, for the purpose of remedying a
grievance or resolving a dispute in respect of any matter of mutual interest between employer
and employee, and every reference to ‘‘work’’ in this definition includes overtime work, whether it
is voluntary or compulsory’.

However, in terms of section 65 of the Labour Relations Act employees who are engaged in the
provision of essential and maintenance services are prohibited from striking. This is mainly

7 AMCU & Others v Chamber of Mines of South Africa & Others (2017) ILJ 831 (CC).

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because the provision of such services is important either to society or the employer. An
essential service means a service, of which the interruption endangers the life, personal safety o
health of the whole or any part of the population. The supply and distribution of water is an
essential service.

In terms of section 74 where there is a collective bargaining dispute in an essential service or

maintenance service, it must first be referred for conciliation to either a bargaining council or the
CCMA and, if it remains unresolved it must be referred for arbitration to either a council or the
CCMA. The arbitrator is tasked to achieve a rational outcome of the dispute.

Although employees engaged in essential services are prohibited from striking, the LRA makes
provision for an exception, namely, employers and unions involved in essential services can
conclude collective agreements providing for the maintenance of certain minimum services in a
service which has been designated as an essential service. If such a collective agreement is
approved and ratified by the ESC, employees who provide the minimum service will not be able
to strike as they will now be regarded as an essential service in respect of the employer, while
the rest of the ‘essential services’ may strike.

In SAPS v POPCRU8 the SAPS which was designated as an essential service by the Labour
Relations Act and sought an interdict against POPCRU after the union called its members to join
a strike. The SAPS argued that its employees are prohibited from striking because they are
engaged in an essential service. POPCRU argued that the SAPS employs two categories of
employees, that is, those employed under the South African Police Service Act and those
employed under the Public Service Act. The court held that SAPS’ argument that all its
employees fall under essential services is neither justifiable nor reasonable and it would
unjustifiably restrict the fundamental right to strike provided in the Constitution. The court,
therefore, found that employees employed by the SAPS who are not performing police functions
do not fall under essential services and may engage in a strike.

Application to the facts

Members of United Municipal Workers working within water supply department. This falls under
the scope of essential services as defined above and thus such employees are prohibited to
strike by section 65. Part of these employees can be able to strike only if there is a collective

8 SAPS v POPCRU (2010) 31 ILJ 2844 (LAC).

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agreement providing for the maintenance of certain minimum services in which employees who
provide the minimum service will not be able to strike as they will now be regarded as an
essential service in respect of the employer, while the rest of the ‘essential services’ may strike.

4.2 Primary and secondary strikes

The Labour Relations Act defines a strike in its section 213 as the partial or complete concerted
refusal to work, or the retardation or obstruction of work, by persons who are or have been
employed by the same employer or by different employers, for the purpose of remedying a
grievance or resolving a dispute in respect of any matter of mutual interest between employer
and employee, and every reference to ‘‘work’’ in this definition includes overtime work, whether it
is voluntary or compulsory’.

Three key elements of a strike are:

i. there must be a refusal to work (complete, partial; retardation or obstruction);
ii. the refusal must be a concerted action by persons (employed by the same or differen
employers); and
iii. the refusal must be for the remedying of a grievance or resolving a dispute in respect of any
matter of mutual interest between an employer and employee.

Procedural requirements for primary strike (nature of strike by QT)

i. the dispute must be referred to conciliation

 Conciliation could be before a bargaining council or statutory council with jurisdiction over the
sector. If there is no bargaining/statutory council, the matter must be referred to the CCMA for
conciliation.
 The bargaining council or the CCMA must attempt to resolve the dispute through conciliation
within 30 days of the referral.
 If the parties to the dispute reach an agreement, the dispute is resolved.
 If no agreement is reached, the conciliator must issue a certificate to indicate that the matter
has not been resolved.
 After this (or after 30 days have gone by since referral of the dispute for conciliation), the
parties can give notice of the proposed strike (or lock-out).

ii. the required notice of the intended action must be given

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 If conciliation fails, or 30 days have passed since the referral of the dispute to either a
bargaining council or the CCMA, at least 48 hours’ written notice must be given of the
commencement of the strike or lock-out.
 If the State is the employer, at least seven days’ notice must be given.
 If the employer is a member of an employers’ organisation, notice must be given to the
employers’ organisation. If the issue relates to a collective agreement to be concluded in a
council, notice must be given to that council.
 The LRA does not prescribe what details the notice must contain; it only regulates that it must
be in writing and must be issued 48 hours before commencement of the strike. In Ceramic
Industries Ltd t/a Betta Sanitaryware & another v NCBAWU & others9 the Labour Appeal
Court held that the primary aim of a strike notice is to give the employer advance warning of
the proposed strike so that it may prepare for the imminent action.
 The notice must set out the issue in dispute with reasonable clarity.

Secondary strike by employees of Tile Mix

Also known as a solidarity action.
It can be defined as the partial or complete concerted refusal to work, or the retardation or
obstruction of work, by people who are or have been employed by a different employer, for the
purposes of supporting another strike (primary strike) to put pressure on the primary employer to
accede to the demands of its striking employeesIn order for a secondary strike to be protected,
the LRA sets the following procedural requirements:
 the primary strike must be protected;
 strikers must give their employer seven days’ written notice of the commencement of the
strike, this is to give the secondary employer an opportunity to put pressure on the primary
employer to accept the demands of the primary strikers;
 the harm to the secondary employer must not be more that what is required to make an
impact on the primary employer (proportionality).

Application to the facts

For the two strikes from employees of Quality Tiles and Tile Mix to be protected they both have
to comply with the definition of a strike and meet all the procedural requirements of each.

9 Ceramic Industries Ltd t/a Betta Sanitaryware & another v NCBAWU & others [1997] BLLR 697
(LAC).

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BIBLIOGRAPHY

CASE LAW

AMCU & Others v Chamber of Mines of South Africa & Others (2017) ILJ 831 (CC).

ARB Electrical Wholesalers v Hibbert (2015) 36 ILJ 2989 (LAC) [27].

Ceramic Industries Ltd t/a Betta Sanitaryware & another v NCBAWU & others [1997] BLLR 697
(LAC).

Media 24 Ltd & Another v Grobler (2005) 26 ILJ 1007 (SCA).

Motsamai v Everite Building Products (Pty) Ltd [2011] 2 BLLR 144 (LAC) [20].

Ntsabo v Real Security CC [2004] 1 BLLR 58 (LC).

Pharmaco Distribution (Pty) Ltd v W (2017) 38 ILJ 2496 (LAC).

SAPS v POPCRU (2010) 31 ILJ 2844 (LAC).

UCKG v Myeni & and Others (2015) 36 ILJ 2832 (LAC).

Wyeth SA (Pty) Ltd v Manqele and Others (2005) 26 ILJ 749 (LAC).

LEGISLATION

Employment Equity Act 95 of 1998.

Labour Relations Act 66 of 1995.

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OCTOBER/NOVEMBER 2019
QUESTION 1

a) Requirements for a valid contract

i. There must be consensus between the parties;
The employment contract like any other contract is created through offer and acceptance. The
contract arises when the parties agree about the essential terms of the contract. Therefore, the
minds of the parties must have met, that is, they must intend the same thing. UCKG v Myeni – a
church pastor could not claim the existence of a valid contract because the other party (the church)
was under the belief that a voluntary service was provided for by the plaintiff (Myeni).

ii. Parties must have legal capacity to act;

A mentally impaired person or a minor will not be able to conclude a valid contract of employment.

iii. Performance must be legally possible;

It will not be legally possible to appoint someone as an assassin for your debt collection business.

iv. Performance must be physically possible; and

If the employer appoints a personal nurse to care for her/him and the employer then dies,
performance will no longer be physically possible.

v. If there are formalities, they must be complied with

It is important to note that it is not a requirement that an employment contract be reduced to writing.
However, in a few cases, statutes require that the employment contract must be in writing (e.g the
contracts of merchant seamen and learnership agreements).

b) Ways in which the terms and conditions of employment may be changed

i. by means of a collective agreement concluded in a bargaining council.
ii. by means of a collective agreement concluded outside a bargaining council by an employer
and a trade union
iii. by the employer and the employee by means of an agreement.
iv. by the Minister of Labour through ministerial and sectoral determinations.

c) Progressive discipline

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It entails that an employer should attempt to refrain from resorting to dismissal as a first option. An
employer should try to correct the employee through a system of progressive or graduated
disciplinary measures such as counselling and warnings. A formal disciplinary procedure does not
need to be invoked every time a rule is broken as informal advice and correction might be a better
way to deal with minor violations of workplace rules. Dismissal must be seen as a last resort. Forms
of progressive discipline may include:
 Suspension without pay;
 Verbal warnings;
 Written warnings;
 Demotion; and
 Transfer.

QUESTION 2

a) Discrimination
i. Unfair discrimination
It is the allegation that the employee has been treated differently from another employee, that is,
there was differentiation. There are two defenses to the claim of unfair discrimination, namely,
affirmative action and inherent requirements of a job. For present purposes, inherent requirements
of a job is applicable.

An employer may argue that the discrimination is justified because of an inherent requirement of a
job. It may argue that the physical requirements of the job make it necessary for employees to have
certain physical characteristics. But it is the employer who will have to prove that certain
characteristics are indeed an inherent requirement of a job.

Zukiswa might claim unfair discrimination and the employer will bear the onus of proving that the
discrimination is fair, due to inherent requirements of a job.

ii. Direct discrimination

Direct discrimination occurs where the differential treatment of employees is clearly and expressly
based on one or more of the prohibited grounds of discrimination, be they listed or unlisted.
 In terms of section 9 of the Constitution everyone is equal before the law and has the right
to equal protection and benefit of the law. This provision also prohibits unfair

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discrimination against anyone based on amongst others, sex, gender and sexual
orientation.
 Section 6 of the Employment Equity Act (EEA) prohibits unfair discrimination against
employees in an employment policy or practice on for example, sex/gender, belief or
sexual orientation.
Therefore, Zukiswa would have a different claim from the one above and chances of the employer
justifying such discrimination are next to nil. Zukiswa would be successful with her claim.

b) Definition of dismissal in the LRA

Section 186 of the LRA defines dismissal as follows –
a) termination of employment with or without notice,
b) when an employee employed on a fixed term contract reasonably expected employer to
renew employment contract on the same or similar terms or retain the employee on indefinite
basis but the employer offered to renew on less favourable terms or not renew at all, or not to
retain employee indefinitely,
c) an employer refused an employee to resume work after she took maternity leave in terms of
any law, collective agreement or contract of employment,
d) an employer who dismissed employees for the same or similar reasons offered to re-employ
one or more of them but has refused to re-employ another,
e) constructive dismissal or,
f) the new employer offered substantially less favourable terms to employees after the transfer
in terms of section 197 of the LRA.

c) Difference between reinstatement and re-employment

 A reinstatement order restores the relationship between the employer and the employee as
if it was never broken. Rights, such as seniority rights, will be unaffected.
 A re - employment order implies the imposition of a new relationship which may be different
from the employment relationship which existed prior to the earlier dismissal. The employee
may be given his/her old job but without the rights, such as seniority rights, which had been
acquired in terms of the old employment relationship. It may also mean that the employee is
given another job that differs from his/her previous job.

d) No-fault dismissals
i. Dismissal for incapacity
ii. Dismissal for operational reasons

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In these instances, employees are ready and available to offer their services but the employer’s
business focus or employee’s capacity demand that they be dismissed. The inability is due to no
fault of the employee under dismissal for incapacity. Under operational requirements it is the focus
of the employer’s business which leads to dismissal.

QUESTION 3

a) Agency shop agreement

Agency shop agreement is the agreement that the employees of a business all pay a fee to the
majority trade union in the workplace but members of the minority union and non-members of no
other trade union continue to be members of their minority as well as those who are not members of
any union.
i. An agency-shop agreement is concluded by a majority union and an employer or an
employers’ organisation.
ii. It is concluded by way of a collective agreement.
iii. The employer must deduct the agreed agency fee from the employees identified in the
agreement, subject to the following:
 The employer may only deduct from non-members who are eligible for membership.
 Conscientious objectors to the policies of the union (on religious or moral grounds) must
pay the fee, which is then paid into a fund administered by the DoL.
 The fee of non-members cannot be higher than the subscription fee payable by members
of the majority union.
 Agency fees are paid over to a separate account and can be used only for the benefit of
all employees at the workplace.
 Agency fees may not be used for political affiliation purposes other than advancing or
protecting the socio-economic interests of employees.
 The employer can deduct agency fees from the wages of employees without their
authorisation.

b) Exceptions to disclosure of information to trade unions

Notwithstanding the necessity of the disclosure of information by the employer, the following
information need not be disclosed:
i. legally privileged information (eg communication between a legal representative and a client);
ii. information which an employer is prohibited from disclosing by any law or court order;

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iii. information of a confidential nature, the disclosure of which will cause substantial harm to an
employee or to the employer (the employee in question may, however, consent to the
disclosure); and,
iv. private personal information relating to an employee unless the employee consents to the
disclosure.
v. Information that is not available

c) Difference between consultation and joint decision making as functions of workplace

forums
i. Consultation entails that an employer before making certain decisions in the workplace
he/her must firstly consult with the workplace forum and try to reach a consensus before
implementing any of the changes. The employer must allow the workplace forum the
opportunity during the consultation to make representations and to advance alternative
proposals. If the employer dos not agree with these presentations and proposals he/she must
the reasons thereof. Should there be no agreement between the employer and the workplace
forum, the employer must make use of agreed procedures to resolve the differences before
implementing those proposals. The two matters for consultation with a workplace forum are
as follows:
 restructuring the workplace, including the introduction of new technology and new work
methods;
 changes in the organisation of work.

ii. Joint decision making, in terms of section 86 of the LRA, the employer must consult and
reach consensus with the workplace forum before implementing any proposal concerning
matters that must be the subject of joint-decision making. Should the parties not reach an
agreement, the dispute must be resolved through arbitration. The matters for joint decision-
making with the workplace forum are as follows:
 disciplinary codes and procedures;
 measures designed to protect, and advance persons disadvantaged by unfair
discrimination.
d) Functions/powers of a bargaining council
The following are the functions of a bargaining council:
i. The collective bargaining function of a bargaining council
ii. The dispute resolution function of a bargaining council
iii. Other functions of a bargaining council:

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 A council may establish and administer pension, provident, medical aid, sick pay, holiday,
unemployment and training funds or any similar schemes or funds for the benefit of one or
more parties to the council or their members.
 Bargaining councils may develop proposals for submission to NEDLAC, or to any other
appropriate forum dealing with policy and legislation, that may affect the sector and area for
which the council has been registered.
 Finally, a bargaining council may confer on workplace forums additional matters for
consultation.

QUESTION 4

a) Prohibition on strikes and/or lock-outs

Section 65 of the LRA provides for the following limitations:
i. Prohibition in a collective agreement
ii. Arbitration is prescribed in terms of an agreement
iii. Disputes that must be referred to arbitration or the Labour Court
iv. Essential and maintenance services
v. An award or a collective agreement regulates the issue in dispute
vi. The issue in dispute is regulated by a determination
vii. The existence of a dispute

b) Procedural requirements for a protected strike

iii. the dispute must be referred to conciliation
 Conciliation could be before a bargaining council or statutory council with jurisdiction over the
sector. If there is no bargaining/statutory council, the matter must be referred to the CCMA for
conciliation.
 The bargaining council or the CCMA must attempt to resolve the dispute through conciliation
within 30 days of the referral.
 If the parties to the dispute reach an agreement, the dispute is resolved.
 If no agreement is reached, the conciliator must issue a certificate to indicate that the matter
has not been resolved.
 After this (or after 30 days have gone by since referral of the dispute for conciliation), the
parties can give notice of the proposed strike (or lock-out).

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iv. the required notice of the intended action must be given

 If conciliation fails, or 30 days have passed since the referral of the dispute to either a
bargaining council or the CCMA, at least 48 hours’ written notice must be given of the
commencement of the strike or lock-out.
 If the State is the employer, at least seven days’ notice must be given.
 If the employer is a member of an employers’ organisation, notice must be given to the
employers’ organisation. If the issue relates to a collective agreement to be concluded in a
council, notice must be given to that council.
 The LRA does not prescribe what details the notice must contain; it only regulates that it must
be in writing and must be issued 48 hours before commencement of the strike. In Ceramic
Industries Ltd t/a Betta Sanitaryware & another v NCBAWU & others the Labour Appeal Court
held that the primary aim of a strike notice is to give the employer advance warning of the
proposed strike so that it may prepare for the imminent action.
 The notice must set out the issue in dispute with reasonable clarity.

c) Protected pickets
A picket must comply with the following requirements in order to enjoy protection:
 It must be authorised by a registered trade union, for the purpose of peacefully demonstrating
 In support of a protected strike or
 In opposition of any lock-out

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MAY/JUNE 2019
QUESTION 1
a) Under the present LRA, an employee provided by a labour broker may hold the employer (in othe
words, the labour broker) and client jointly and severally liable if the TES contravenes:
i. a collective agreement concluded in a bargaining council that regulates terms and conditions
of employment,
ii. a binding arbitration award that regulates terms and conditions of employment,
iii. the BCEA, or
iv. a determination made in terms of the BCEA.
Joint and several liability means that the employee can satisfy her/his claim by taking action agains
the employer and the client but the employee must start with the employer. If she/he does not perform
the employee can take action against the client.
The Act simplifies the process by determining that the employee may institute proceedings agains
the TES, the client or both.

b) This refers to a contract of employment that terminates on/at:

i. the occurrence of a specified event
ii. the completion of a specified task or project, or
iii. a fixed date, other than an employee’s normal or agreed retirement age.
There is no triangular relationship with a fixed-term contract. It is the employer and employee who
conclude a contract of employment which will terminate at some set stage.

c) Reasonableness will be determined with reference to the interests of both the employer and the
employee, public policy and surrounding circumstances. Questions that should be considered in
determining reasonableness are, for example:
i. Is there an interest deserving of protection at the termination of the agreement?
ii. Is that interest being prejudiced?
iii. If so, how does that interest weigh up against the interests of the other party?
iv. Is there another facet of public policy apart from the relationship between the parties which
requires that the restraint should either be enforced or disallowed?
v. Is the restraint wider than necessary to protect the protectable interest?

d) Ways in which terms and conditions of employment may be changed

i. by means of a collective agreement concluded in a bargaining council.

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ii. by means of a collective agreement concluded outside a bargaining council by an

employer and a trade union
iii. by the employer and the employee by means of an agreement.
iv. by the Minister of Labour through ministerial and sectoral determinations.

QUESTION 2
(a) Dismissal
i. A dismissal based on operational reasons/requirements; operational aspects of the business.

ii. The concept ‘operational requirements’ is defined and characterised in four elements, which are
the economic, structural, technological and similar requirements. An employer’s economic needs
and the dismissal of employees as a result of these needs relate to the financial management o
the enterprise including financial difficulties experienced by the business as a result of changes in
the market, a decrease in demand for its products, a decrease in production itself, in governmen
subsidies or the cost implications of compliance with the BCEA.

iii. Consultation process in dismissal for operational reasons

Was there prior consultation?

Consultation must take place when the employer contemplates dismissal; in other words, at the stage
when the employer has not reached a final decision to dismiss, but has merely foreseen the possibility
In National Union of Metalworkers of SA v Atlantis Diesel Engines (Pty) Ltd (1993) 14 ILJ 642 (LAC
the Labour Appeal Court interpreted this to mean ‘at the earliest opportunity’

Whom did the employer consult with?

It is also important to know whom the employer must consult with:
 First, the person or group indicated in a collective agreement must be consulted.
 If there is no collective agreement, a workplace forum (if there is one) and any registered
trade union whose members are likely to be affected by the dismissals, must be consulted
 If there is no workplace forum, the employer must consult with any registered trade union
whose members are likely to be affected by the proposed dismissals. If there is no such
union, the employer must consult the employees (or their nominated representatives) likely
to be affected by the proposed dismissals.
How did the parties consult?

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Consultation in terms of section 189(2) means to ‘attempt to reach consensus’. A single meeting is
not sufficient consultation with employees. In Jenkin v Khumbula Media Connexion (Pty) Ltd [2010
12 BLLR 1295 (LAC), the court found that a single meeting during which the appellant employee was
told that the respondent was considering retrenchments and a severance package, was not sufficien
to constitute consultation. Such an abrupt process fell short of pre-retrenchment requirements as se
out in the LRA, particularly if one looks at the aim of such consultation. The appellant’s consequen
dismissal was thus procedurally unfair.

Did they attempt to reach consensus?

There are six matters about which the parties must endeavour to reach agreement/ consensus:
 appropriate measures to avoid the dismissals,
 appropriate measures to minimise the number of dismissals,
 appropriate measures to change the timing of the dismissals,
 appropriate measures to mitigate the adverse effects of the dismissals,
 the selection criteria, and
 severance pay.

(b) Distinction between precautionary and punitive suspensions

 Precautionary suspension could be implemented to allow an employer to investigate the
alleged misconduct of an employee, and to decide whether disciplinary action should be taken
against the employee. (Suspension pending an inquiry).

 Punitive suspension fair suspension without pay could be an alternative to a sanction o

dismissal in an attempt to correct the behaviour of the employee. It can be seen as a form o
progressive discipline where appropriate. (Imposed as a sanction for misconduct following
disciplinary action).

QUESTION 3
(a) Four methods through which a trade union may acquire organizational rights
i. Through collective agreement
The LRA makes provision for a registered trade union and an employer or employers’ organisation to
conclude a collective agreement that regulates organisational rights. This means that, even if the trade
union is not representative, it could have organisational rights on which the parties agreed.

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ii. Through membership of a bargaining council

A registered trade union that is party to a bargaining council, automatically acquires the two rights o
access to the premises and to have trade union subscriptions deducted by stop order, in respect o
all workplaces falling within the jurisdiction of the bargaining council. A union acquires these rights
irrespective of whether it is sufficiently representative or not.

iii. Through strike action

A union, including a minority union, may strike in support of a demand for organisational rights even
if it does not meet the statutory threshold for acquiring such rights.

iv. Through the section 21 procedure

This process entails that the registered trade union must notify the employer in writing that it seeks to
exercise organisational rights. Within 30 days they must meet to conclude a collective agreement. I
they do not conclude then either party can refer the dispute to the CCMA for conciliation. If no
conciliation reached, then the parties can process to arbitration or alternatively strike / lock out afte
serving appropriate notice.

a) Agency-shop agreement and closed-shop agreement

Agency shop agreement is the agreement that the employees of a business all pay a fee to the
majority trade union in the workplace but members of the minority union and non-members of no
other trade union continue to be members of their minority as well as those who are not members of
any union. Whereas a closed-shop agreement requires that there be one majority union in the
workplace and all employees must be a party to this majority trade union.

Differences
i. An agency shop is regulated by section 25 of Labour Relations Act whereas a closed
shop is regulated by section 26 of the said Act.
ii. In an agency-shop agreement, non-members only pay the fee but still continue with their
minority unions whereas in a closed shop, all employees become part of the majority
union and no other union will be allowed in the business of the employer.
iii. In an agency shop agreement, the employer may only deduct from non-members who are
eligible for membership whereas in a closed shop an employee who joins the employer’s
business and knows that a closed shop agreement is applicable and he/she refuses to
join the union which is a party to a closed-shop agreement may be dismissed. Meaning

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that an agency shop does not infringe on the right of an employee’s freedom of
association but a closed shop does affect this right to a greater extent.
iv. In an agency shop the employer can deduct agency fees from the wages of employees
without their authorisation whereas in a closed shop the employer must deduct the agreed
subscription fees from the employees identified in the agreement.

Similarities
i. Concluded by a majority union and an employer or an employers’ organisation.
ii. Concluded by way of a collective agreement.
iii. Union subscription fees may not be used for political affiliation; they may be used only to
advance the socioeconomic interests of the employees.

b) Binding nature of a collective agreement

A collective agreement binds:
 the parties to the agreement,
 each party to the agreement and the members of every other party to the agreement in so fa
as the provisions are applicable to them,
 members of a registered union and employers who are members of a registered employers
organisation that are party to the collective agreement if it regulates:
 terms and conditions of employment, or
 the conduct of the employers in relation to their employees or the conduct of the employees in
relation to their employer,
 employees who are not members of the registered union/s party to the agreement are bound
by the agreement if:
- the employees are identified in the agreement,
- the agreement expressly binds the employees, and
- the trade union/s represent the majority of all the employees employed in the workplace.

QUESTION 4
a) The main functions of a workplace forum are:
i. to promote the interests of all employees in the workplace (again, not just union members),
ii. to enhance efficiency in the workplace,
iii. to consult on certain matters, and
iv. to jointly make decision on specific matters.
b) The nature of the two strikes depicted in the scenario is called a primary and secondary strike.

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Definition of a strike
A strike is the partial or complete concerted refusal to work, or the retardation or obstruction of work
by people who are or have been employed by the same employer or by different employers, for the
purposes of remedying a grievance or resolving a dispute in respect of any matter of mutual interes
between employer and employee and every reference to work in this definition includes overtime work
whether it is voluntary or compulsory.

In order to qualify as strike action, the employees must comply with the following three elements
contained in the definition:
iv. there must be a refusal to work (complete or partial retardation or obstruction of work)
v. the refusal must be a concerted action by persons (employed by the same or differen
employers), and
vi. the refusal must be for the remedying of a grievance or resolving a dispute in respect of any
matter of mutual interest between an employer and employee.

Strikes are not automatically protected, as there are some hurdles that employees and employers
have to cross before their actions will be protected.

To cross hurdle 1
The parties should ensure that their action complies with the definition of a strike or lock-out, therefore
they must avoid the inherent limitations in the definitions of both strikes and lock-outs

To cross hurdle 2
The parties should comply with the procedure prescribes by the LRA in section 64. In certain limited
circumstances employers and employees will be exempted from complying with these procedures

To cross hurdle 3
The parties should ensure that none of the prohibitions against industrial action as contained in section
65 of the LRA are applicable to their issue in dispute. The parties will be able to continue with collective
action only if the nature of the particular dispute is one of ‘interest’, meaning the dispute about a
change to an existing right or about creating a new right. Employees may not strike about a dispute
of ‘right’, which would be a dispute about the application and interpretation of an existing right, since
this must be referred to arbitration

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This hurdle stands on three legs prescribed by section 64(1):

Procedural Requirements
i. the issue in dispute must be referred for conciliation,
ii. a certificate of outcome must be issued or 30 days must have gone by before the strike can
start, and
iii. the prescribed notice must be given to the employer in the case of a strike, and to the trade
union (or employees if there is no union) in the case of a lock-out

The issue in dispute:

The LRA defines an ‘issue in dispute’ as: ‘…the demand, the grievance, or dispute that forms the
subject matter of the strike or lock-out’
The issue in dispute must fall within the definition of a strike (or lock-out). The LRA requires that the
parties must try and resolve the issue. First by a bargaining council (if there is one in that sector), i
not then at the CCMA

Certificate of outcome:
The bargaining council or the CCMA must attempt to resolve the dispute through conciliation within
30 days of the referral. If agreement is reached, it is resolved, if not, the conciliator must issue a
certificate to indicate that the matter has not been resolved. After this (or after 30days have passed
since the referral, a strike action or lock-out may take place

Prescribed notice:
If conciliation has failed, or 30 days have passed since the referral at least 48 hours written notice
must be given of the commencement of a strike or lock-out. If the State is an employer, at least 7
days’ notice must be given. If it is a lock-out the union or employees (if there is no union) must be
notified. The LRA does not prescribe what the notice must contain, it only regulates that it must be in
writing and must be issued 48 hours before commencement of industrial action
There are some exceptions by which the parties do not need to follow the procedures prescribed by
the LRA:
 if the parties in dispute are members of a bargaining council and the dispute followed the
procedure set by that council’s constitution
 if the parties concluded a collective agreement with the prescribed procedures to be
followed before they strike or lock-out, and they have complied with that agreement
 if the employer implements an unprotected lock-out and the employees strike in response
to that and vice versa

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 if a strike takes place after the employer has unilaterally changed the terms and conditions
of employment, and the employer fails to rectify this despite prior warning, and
 if an employer refuses to bargain with a union, in which case the dispute must first be
referred for conciliation and then for advisory arbitration before notice of a strike can be
given.

Secondary Strike:
Also known as a solidarity action. The purpose of such a strike is to support of another strike (known
as the primary strike) in order to put pressure on the primary employer, to accede to the demands o
the striking employees. In order for a secondary strike to be protected, the LRA sets the following
requirements:
 the primary strike must be protected; the primary strike must have successfully crossed al
three hurdles for a protected strike
 strikers must give their employer seven days’ written notice of the commencement of the
strike, this is to give the secondary employer an opportunity to put pressure on the primary
employer to accept the demands of the primary strikers.
 the harm to the secondary employer must not be more that what is required to make an
impact on the primary employer (proportionality)
c) Payment of remuneration to employees involved in a protected strike
The employer does not have to pay employees who are on strike or are locked-out, since the “no
work, no pay” rule applies. The rule is based on the fact that the contract of employment is reciproca
in nature, that is, performance by the employer depends on performance by the employee.
There is only one exception to this rule, if the remuneration of employees include payment in kind in
the form of accommodation, the provision of food and other basic amenities of life, the employer may
not withhold that payment in kind during the strike or lock-out. The employees, must, however, reques
that the payment in kind continues. The employer may recover the monetary value of the payment in
kind from the employees after the end of the strike by a way of civil proceedings instituted in the
Labour Court.

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OCTOBER/NOVEMBER 2018 (Paper 1)

QUESTION 1
a) Distinction between an employee and independent contractor
EMPLOYEE INDEPENDENT CONTRACTOR

1. appointed to render personal services in contracted to perform a specified task or to

terms of a job description produce a specific result
2. contract of service contract of work
3. employer has right of supervision No right of supervision
4. worker depends on the employer in the Does not depend on the employer to perform
performance of duties duties
5. employee in terms of an employment Can work for multiple employers
contract is not allowed to work for anyone
else.
6. perform his/her duties personally does not really matter who does the work as
long as the job gets done.
7. paid according to a fixed rate paid according by commission
8. depends on the employer’s tools provides his/her own tools and equipment
9. the employer has the right to discipline the No right to discipline the worker
worker
10. economically dependent on the employer Economically independent

Tests employed to distinguish between an employee and independent contractor

i. The control test: control is an essential feature of a contract of employment. The right to control is
more extensive in the employment contract than in other types of contract, such as the contract o
an independent contractor or an agency contract.

ii. The organisation (integration) test: this test depends of a determination of whether a person is par
and parcel of the organisation.

iii. The multiple or dominant impression test: It is often seen as the standard test currently used by
our courts. The factors, or indications, that the court would take into consideration to obtain a
dominant impression, include the following

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 The right of supervision, in other words, whether the employer has the right to supervise
the other person, (ie ‘the worker’).
 The extent to which the worker depends on the employer in the performance of duties.
 Whether the worker is allowed to work for another. Normally, someone who is an employee
in terms of an employment contract is not allowed to work for anyone else.
 Whether the worker is required to devote a specific time to his/her work.
 Whether the worker is obliged to perform his/her duties personally. Usually, someone
working for another in terms of an employment contract is obliged to render the services
personally. In the case of an independent contractor, it does not really matter who does the
work as long as the job gets done.
 Whether the worker is paid according to a fixed rate or by commission.
 Whether the worker provides his/her own tools and equipment.
 Whether the employer has the right to discipline the worker. The existence of this right would
normally indicate control, which, in turn, would be indicative of an employment contract.

a. Common law duties of both parties to the employment contract

The employee has the following duties:
i. To tender his/her services
ii. To work competently and diligently
iii. To obey lawful and reasonable instructions of the employer
iv. To serve the employer’s interests and act in good faith

The employer has the following duties:

i. To remunerate the employee
ii. A duty to provide work
iii. Safe working conditions
iv. A general duty of fair dealing with employees?

c) Forms of sexual harassment

i. Quid pro quo harassment
A man/woman is forced into surrendering to sexual advances against his/her will for fear of losing a
job related benefit such as an increase in salary or even promotion.

ii. Sexual favoritism

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A person in authority rewards only those who respond to his/her sexual advances while victimisation
occurs where an employee is victimised or intimated for failing to submit to sexual advances.

iii. Hostile working environment harassment

An abusive working environment is created, for instance, jokes, sexual proportions or other socia
innuendoes which are offensive to an employee but not necessarily directed at him/her. Pornography
pictures on office walls etc.

d) Supervening impossibility of performance

This relates to change in circumstances of the employee that renders him/her incapable of performing
his/her duties. If it becomes impossible for one party to the employment contract to perform in terms
of the contract, the contract comes to an end and no performance is required from either of the parties
This would, for example, happen where an employee is appointed as a care-taker of a building and
the building is destroyed by a fire. The death of an employee during the term of the contract is anothe
event that will render the performance of service impossible and terminate the contract.

QUESTION 2
a) Designated employers in terms of EEA
i. an employer who employs 50 or more employees;
ii. an employer who employs fewer than 50 employees but whose annual turnover in any given
year exceeds a certain level (these levels are laid down in Schedule 4 of the EEA);
iii. municipalities;
iv. organs of State (defined in section 239 of the Constitution); and
v. an employer appointed as a designated employer in terms of a collective agreement

b) Sick leave
The sick leave cycle is a period of 36 months’ employment with the same employer.
 During every sick leave cycle, an employee is entitled to six weeks’ paid sick leave.
 During the first six months of employment, an employee is entitled to one day’s paid sick leave
for every 26 days worked.
 If the employee is on sick leave, the employee is entitled to the wage normally payable for work
on that day.
 In terms of section 23(1) of the BCEA, an employer is not required to pay an employee if the
employee has been absent from work for more than two consecutive days or on more than two
occasions during an eight-week period if the employee does not (at the request of the

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employer) produce a medical certificate stating the employee was unable to work for the
duration of the employee’s absence on account of illness or injury.

c) Constructive dismissal
i. Where an employee resigns because the employer made continued employment intolerable
for the employee.
ii. Although the employee (and not the employer) terminates the contract, it is not done voluntarily
The employer’s conduct made it impossible for the employee to continue working for the
employer.
iii. In order to succeed with a claim of constructive dismissal the employee will have to prove the
intolerability of the working relationship. The courts have interpreted this to mean tha
resignation was a matter of last resort. There must have been no other motive for the
resignation and the employee would have continued with the employment relationship if it had
not been for the employer’s unacceptable conduct.
iv. This test is objective and the mere fact that an employee resigned because she/he fel
aggrieved is not sufficient.
QUESTION 3;
a) Only registered trade unions may
i. acquire organisational rights,
ii. conclude a binding collective agreement,
iii. apply for the establishment of a workplace forum,
iv. apply for the establishment of a bargaining council and represent its members at the CCMA.

b) Conduct of the employer amounting to refusal to bargain

i. a refusal to recognise a trade union as a collective bargaining agent;
ii. a refusal to agree to establish a bargaining council;
iii. the withdrawal of recognition of a collective bargaining agent;
iv. a resignation of a party from a bargaining council; or
v. a dispute about appropriate bargaining units, appropriate bargaining levels, or appropriate
bargaining subjects.

Disputes regarding a refusal to bargain must first be referred to the CCMA for an advisory award
before the notice in terms of section 64(1)(b) or (c) is given. An advisory award provides guidance
only; it is not binding on the parties.

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c) Difference between a trade union and workplace forum

TRADE UNION WORKPLACE FORUM
1) a union is a juristic body forum is not a juristic bod

2) a union deals with both wage and non- a forum deals with non-wage-related issues only
wage-related issues

3) a union can embark on industrial action a forum cannot embark on industrial action

d) Organisational rights in terms of the LRA

The following five organisational rights are provided for in terms of the LRA and can only be acquired
by a registered trade union:
i. access to the workplace;
ii. the deduction of trade union subscriptions from the salaries of employees;
iii. election/recognition of trade union representatives;
iv. leave to these trade union representatives for certain purposes; and
v. access to certain information held by the employer.

QUESTION 4
a) Protected strike and dismissal
The LRA provides that an employer may not dismiss an employee for participating in a protected strike
or for any conduct in contemplation or in furtherance of a protected strike. If the reason for a dismissa
is that the employee participated in or supported, or indicated an intention to participate or support, a
protected strike, the dismissal will be automatically unfair. The employees may however be dismissed
for one of two reasons:
i. namely misconduct (damage to property, assault, intimidation of other employees) committed
during the course of the strike. Employees who during a protected strike commit acts o
misconduct such as assault or malicious damage to property may be dismissed; The employe
must however ensure that the dismissal is fair and in accordance with the statutory
requirements for a fair dismissal for misconduct; or
ii. on the basis of the employer’s operational requirements.

b) No work, no pay
Given that a contract of employment is reciprocal in nature, the common-law rule of ‘no work, no pay
applies to strikes and lock-outs. Employers do not have to remunerate employees for services no

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rendered during a protected strike. There is however an exception to the ‘no work, no pay’ rule which
applies in the case of protected strikes, i.e., if the employees’ remuneration includes payment in kind
in the form of accommodation, the provision of food and other basic amenities of life, the employe
may not stop this payment in kind during the strike if the employees request that it continues. Afte
the strike the employer may recover the monetary value of the payment in kind from the employees
by way of legal proceedings in the Labour Court.

The principle of ‘no work, no pay’ applies to both protected and unprotected strikes

c) Prohibition on a strike
Employees who are engaged in the provision of essential and maintenance services are prohibited
from striking. This is mainly because the provision of such services is important either to society o
the employer.

In terms of section 74 where there is a collective bargaining dispute in an essential service o

maintenance service, it must first be referred for conciliation to either a bargaining council or the CCMA
and, if it remains unresolved it must be referred for arbitration to either a council or the CCMA. The
arbitrator is tasked to achieve a rational outcome of the dispute.

Definition of essential services

An ‘essential service’ means a service, of which the interruption endangers the life, personal safety o
health of the whole or any part of the population and also includes the Parliamentary Service and the
South African Police Service.

Discussion
 Although employees engaged in essential services are prohibited from striking, the LRA makes
provision for an exception, namely, where there is a collective agreement which provides fo
the provision of minimum services.
 Employers and unions involved in essential services can conclude collective agreements
providing for the maintenance of certain ‘minimum services’ in a service which has been
designated as an essential service. If such a collective agreement is approved and ratified by
the ESC, employees who provide the minimum service will not be able to strike as they wil
now be regarded as an essential service in respect of the employer, while the rest of the
‘essential services’ may strike.

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 The terms and conditions of employment of employees who provide minimum services will no
be subject to arbitration in terms of section 74 but will be determined by the outcome of the
strike by other employees who are not engaged in the minimum service.
 An employer employing essential and non-essential service employees may face a protected
strike by employees who do not perform essential service functions.
 In SAPS v POPCRU, the SAPS which was designated as an essential service by the LRA and
sought an interdict against POPCRU after the union called its members to join a strike. The
SAPS argued that its employees are prohibited from striking because they are engaged in an
essential service. POPCRU argued that the SAPS employs two categories of employees, tha
is, those employed under the South African Police Service Act and those employed under the
Public Service Act. The court held that SAPS’ argument that all its employees fall unde
essential services is neither justifiable nor reasonable and it would unjustifiably restrict the
fundamental right to strike provided in the Constitution. The court, therefore, found tha
employees employed by the SAPS who are not performing police functions do not fall unde
essential services and may engage in a strike.

d) Difference between a strike and protest action

The main difference between a strike and protest action lies in their purposes. The purpose of a strike
has to do with matters of mutual interest between the employer and employees whereas that of a
protest action has to do with socio economic interests such as Education.

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MRL3702 OCT/NOV 2018 (paper 2)

QUESTION 1
a) Trade unions may acquire organisational rights in the following ways:
i. collective agreement
ii. membership of a bargaining council
iii. strike action
iv. section 21 procedure

COLLECTIVE AGREEMENT
The LRA makes provision for a registered trade union and an employer or employer’s organisation to
conclude a collective agreement that regulates organisational rights. This means, even if the trade
union is not representative, it could have organisational rights on which the parties agreed

MEMBERSHIP OF A BARGAINING COUNCIL

A registered trade union that is a party to a bargaining council, automatically acquires the right o
access to the premises and the right to have trade union subscriptions deducted by stop orders, in
respect of all workplaces falling within its jurisdiction of the bargaining council. A union acquires these
rights irrespective of whether it is sufficiently representative or not

STRIKE ACTION
A trade union, including a minority union, may strike in support of a demand for organisational rights
even if it does not meet the statutory threshold for acquiring such rights

SECTION 21 PROCEDURE
This process entails that the registered trade union must notify the employer in writing that it seeks to
exercise organisational rights. The notice must contain the following information:
 the workplace in which the union seeks to exercise these rights
 the representivity of the trade union in that workplace
 the rights that the trade union wants to exercise, and
 the manner in which the trade union wants to exercise those rights

b) Vicarious liability
 According to this doctrine an employer is liable for the unlawful or delictual acts of an employee
performed during the course of business

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 The operation of this doctrine is regulated by the common-law and not by employmen
legislation
 It is based on the principle that the employer (who by its profitable operation creates a risk o
harm to others), has to compensate those who suffer injury as a result of the wrongful conduc
of an employee
 Vicarious liability protects third parties
 It does not mean the employer will have no recourse, depending on the circumstances; the
employer can discipline the employee for misconduct and even claim repayment in this regard
 There are three requirements that must be met for the employer to be liable for the employee’s
wrongful conduct:
1. There must be a contract of employment
2. The employee must have acted in the course and scope of employment
3. The employee must have committed a delict.

Bezuidenhout NO v Eskom
- The employee had been provided with a truck marked as Eskom property for the purposes
of carrying out his duties
- The employee had been expressly prohibited from giving lifts to any person without the
permission of his superiors
- The employee however did offer a lift to a hitchhiker and they were in an accident witch lef
the hitchhiker with severe head injuries
- The Court held that the instruction not to carry passengers placed a limitation on the scope
of employment
- But the employer was not vicariously liable for the injuries sustained by the unauthorised
passenger because driver knew perfectly well he was not allowed to give lifts nor would i
further his boss’s affairs by doing so
- The passenger’s presence added nothing to the interest of the employer in the prope
administration of its services.

c) The primary duty of an employee is to place his/her labour potential or capacity and time at the
disposal of the employer or as it is more commonly referred to ‘tendering her/his services. This
includes that the employee enters and remains in the employer’s services. The employee who fails
to do so will not receive any remuneration from the employer. There might be exceptions, such as
when an employee is on approved leave.

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d) Section 186 of the LRA – defines “dismissals”, it can be fair, unfair or automatically unfair. The
definition of dismissal indicates what actions performed by the employer would bring the
employment relationship to an end. If the employee alleges that the termination amounts to an
unfair dismissal, he/she must prove that he/she:

- is an employee (in order to fall under the protective scope of the LRA) and
- was dismissed ( in terms of one of the actions listed in section 186)
The burden of proof then moves to the employer to prove that the dismissal was not unfair. The only
way in which the employer will be able to do this is by proving:
- that there was a fair reason for the dismissal (substantive fairness), and
- that a fair procedure was followed
- The main provisions regarding dismissals are found in section 186 and 188. The LRA
makes provision for fair dismissal, dismissal for a fair reason and using the correc
procedure
- Although dismissal is an option in certain circumstances, the LRA ascribes to the principle
of progressive discipline.

e) SELECTIVE RE-EMPLOYMENT:
Example: A, B and C worked at Chicken Mania, where they packed frozen chickens. The three o
them were caught stealing frozen chickens and they were subsequently dismissed. There last working
day was 31 October. On 5 November Chicken Mania asked A if he would like to come work for them
again. Although A, B and C were fairly dismissed on 31 October, the selective re-employment of A
would mean that B and C may claim that they had been (unfairly) dismissed

Where an employer dismisses a number of employees for the same or similar reasons, and
subsequently offers to re-employ one or more of them, but refuses to re-employ another, this wil
constitute a “dismissal”.

This type of dismissal will not necessarily be unfair. If an employer retrenched employees and the
financial position of the business improves, the employer may re-employ some of the employees. I
will not be unfair selective re-employment as long as the employer followed a fair procedure and can
justify the selection of re-employment.

QUESTION 2
a) DISMISSAL

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i. A dismissal based on operational reasons is regarded as a ‘no-fault’ dismissal, because the

termination does not result from the actions or fault of the employee
The terms ‘operational requirements’ is defined in the LRA and the definition distinguished four broad
categories of operational requirements:
 economic needs
 technological needs
 structural needs, and
 similar needs
An employer’s economic needs relate to the financial management of the enterprise including financia
difficulties experienced by the business as a result of changes in the market, a decrease in production
itself, in government subsidies or the cost implications of compliance with the BCEA.

Kotze v Rebel Discount Liquor Group (Pty) Ltd

It was stated that the court should not ‘second guess’ the employer’s commercial reasons for taking
a specific decision to retrench employees. In later decisions the court adopted a stricter approach and
held that the employer’s version will not merely be accepted on face value. Rather, the court itsel
should determine whether retrenchment had a reasonable basis and the commercial rationale. In a
later judgment, the court held that the retrenchment should remain a matter of last resort.

ii. the substantive fairness of a dismissal based on operational requirements must be determined
with reference to the facts and circumstances of every case. Section 189A includes a definition o
substantive fairness which should be used to in determining whether a large scale retrenchmen
by big employer is substantively fair as follows: the dismissal was to give effect to a requiremen
based on the employers economic needs; was operationally justifiable on rational grounds; there
was a proper consideration of alternatives and selection criteria was fair and objective. LIFO and
FIFO are procedural methods that are used to determine whether an employer used fair and
objective selection criteria in dismissing employees based on operational reasons. LIFO means
last in, first out FIFO means first in, first out

b) Where an employee resigns because the employer made continued employment intolerable fo
the employee, it will constitute a “dismissal”, better known as a “constructive dismissal”. Although
the employee (and not the employer) terminates the contract, it was not done voluntarily. The
employer’s conduct made it impossible for the employee to continue working for the employer.

Copeland and New Dawn Prophesy Business Solutions (Pty) Ltd

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The court held that an employee alleging constructive dismissal has to show: “…convincingly that his
resignation…came about as a consequence of the employer being the “villain” in the employmen
scenario who made the employment relationship “intolerable” to him, to such an extent that he finally
in desperation, having exhausted all internal mechanisms of the employer available to him, was lef
with no other viable alternative but to resign”
The court made it clear that the following three elements must be present to succeed in a claim o
unfair dismissal:
 the employee must show that he/she has resigned
 the employee must show that the reason for the resignation was that continued employmen
become intolerable, and
 the employee must show that it was the employer’s conduct that created the intolerable
circumstances
c) the contract is suspended from the date of sequestration for a period of 45 days after the
appointment of a trustee
 under certain circumstances the contract may be terminated by a trustee or liquidato
prior to the 45 day’s term of suspension. The Insolvency Act distinguishes between a
trustee and a liquidator. Where an insolvent employer is an individual, a trustee is
appointed, and where an insolvent employer is a company a liquidator is appointed
 the employee need not render services to the employer
 the employee is entitled to severance pay and to claim damages suffered as a result o
such termination
 in the case of insolvency of the employee, he/she may continue working only with
permission of the trustee
d) Functions of a workplace forum
to promote the interests of all employees in the workplace
To enhance efficiency in the workplace
To consult on certain matters and to jointly make decisions on specific matters.

QUESTION 3
a) Substantive equality (s9 (2)) of the Constitution. Substantive equality recognizes that opportunities
are determined by an individual’s status as a member of a group(s). Discriminatory acts are par
of patterns of behaviour towards groups, which result in disadvantage of such groups. The
prohibition of unfair discrimination is in itself insufficient to achieve true equality, and therefore
affirmative action measures are required to correct imbalances where disadvantage and inequality
exists.

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Discriminatory acts are part of patterns of behaviour towards groups, which result in disadvantage o
such groups. The prohibition of unfair discrimination is in itself insufficient to achieve true equality, and
therefore affirmative action measures are required to correct imbalances where disadvantage and
inequality exists.

b) the employer exercised its discretion inconsistently.

The reasons provided cannot be substantiated
The decision was taken on a wrong principle
The decision was taken in a biased manner.

c) Occupational detriment
i. Occupational detriment is the subjection of an employee to any of the following as a result o
“whistle blowing” (in other words, if the employee, after making the protected disclosure, faces
any of the following):
 any disciplinary action
 dismissal, suspension, demotion, harassment or intimidation
 being transferred against the employee’s will
 refusal of a transfer or promotion
 subjection to a term of employment
 subjection to a term of retirement which is altered or kept altered to the employee’s
disadvantage
 refusal of a reference or being provided with adverse reference
 denial of appointment to any position or office
 being threatened with any of these actions, or
 being otherwise affected in respect of employment, employment opportunities and work
security
ii. The PDA distinguishes between a “protected disclosure” and a “general protective disclosure”
The latter covers a wider range of disclosures including disclosures to the media. The genera
principles of these two overlap to some extent.
The “protected disclosure” is the disclosure of information to specific persons or bodies such as lega
advisors, employers, members of Cabinet, the Public Protector or the Auditor-General. It is importan
that information must be disclosed: suspicion, rumors and personal opinions do not constitute
“information”
The employee must make the disclosure:
 in good faith, and

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 reasonably believe
 that the information disclosed is substantially true

Theron v Minister of Correctional Services & another

The disclosure on poor health care of prisoners made by a prison doctor to the Inspecting Justice o
Prisons and the relevant Parliamentary Committee was held to be a protected disclosure.

QUESTION 4
a) STRIKE
Strike’ is defined as follows:
‘…. the partial or complete concerted refusal to work, or the retardation or obstruction of work, by
persons who are or have been employed by the same employer or by different employers, for the
purposes of remedying a grievance or resolving a dispute in respect of any matter of mutual interes
between the employer and employee and every reference to work in this definition includes overtime
work, whether it is voluntary or compulsory’.
In order to qualify as strike action, the employees must comply with the following three elements
contained in the definition:
 there must be a refusal to work (complete or partial retardation or obstruction of work)
 the refusal must be a concerted action by persons (employed by the same or differen
employers), and
 the refusal must be for the remedying of a grievance or resolving a dispute in respec
of any matter of mutual interest between an employer and employee.
Strikes and lock-outs are not automatically protected, as there are some hurdles that employees and
employers have to cross before their actions will be protected.
 To cross hurdle 1
The parties should ensure that their action complies with the definition of a strike or lock-out, therefore
they must avoid the inherent limitations in the definitions of both strikes and lock-outs

 To cross hurdle 2
The parties should comply with the procedure prescribes by the LRA in section 64. In certain limited
circumstances employers and employees will be exempted from complying with these procedures

 To cross hurdle 3

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The parties should ensure that none of the prohibitions against industrial action as contained in section
65 of the LRA are applicable to their issue in dispute. The parties will be able to continue with collective
action only if the nature of the particular dispute is one of ‘interest’, meaning the dispute about a
change to an existing right or about creating a new right. Employees may not strike about a dispute
of ‘right’, which would be a dispute about the application and interpretation of an existing right, since
this must be referred to arbitration

Example:
Hurdle Description Required answer
1 Does the action comply with the definition of a strike or lock- Yes
out?
2 Were procedural requirements complied with? Yes
3 Are there any prohibitions against the action? No

b) A picket must be peaceful in order to enjoy the protection of the LRA. Picketers may:
 carry placards
 chant slogans
 sing, and
 dance
but they may not do the following:
 physically prevent members of the public, including customers, other employees and service
providers, from gaining access to or leaving the employer’s premises
 any action which may be unlawful, including but not limited to any action which is, or may be
perceived as violent

c) Essential services’ means:

 a service, the interruption of which endangers the life, personal safety or health of the whole
or part of the population
 the Parliamentary service, and
 the South African Police Service
Whether essential or not is determined by the Essential Services Committee and some examples
include; air traffic controllers, municipal traffic police, supply and distribution of water, power, fire
fighting and correctional services.

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‘Maintenance service’ is defined as: ‘…the interruption of that service that has the effect of materia
physical destruction to any working area, plant or machinery’

However, employees engaged in essential services can conclude collective agreements providing fo
the maintenance of certain minimum services – the maintenance service may not strike while the res
may. When a service is designated a maintenance service, replacement labour may not be used.

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MRL3702 MAY/JUNE 2018

QUESTION 1
a) Definition of dismissal in terms of section 186 of LRA
 Employer terminated COE with or w/o notice
 Employer refused to allow employee to resume work after maternity leave
 Employer dismissed a number of employees for the same/similar reasons + offered to re
employ one / more of them, but refused to re-employ another;
 Employee reasonably expected employer to renew fixed-term contract on same/similar terms
but employer offered to renew it on less favourable terms / did not renew it at all
 Employee terminated COE with or w/o notice because employer made continued employmen
intolerable;
 Employee terminated COE with or w/o notice because he was transferred + new employe
provided employee with conditions / circumstances substantially less favourable to employee
than those provided by old employer
b) Difference between absence without leave and desertion
Absent without leave (AWOL) is when an employee does not want to terminate the employmen
contract, but stays away from work without leave. AWOL warrants dismissal if the period of absence
is unreasonably long. Provided the employee returns a few days with a latter to show that he/she had
a reason for the absence eg having been hospitalised or imprisoned, a dismissal will not be
appropriate.
Desertion involves the employee, without resigning, stays away from work with the intention o
terminating the contract of employment. The employer must terminate the employment contract by
holding a disciplinary hearing in the absence of the employee. If the employee returns after dismissal
the employer must give him/her an opportunity to be heard.

c) Definition of a foreign national

… ‘an individual who is not a South African citizen or does not have a permanent residence permi
issued in terms of the immigration Act’.

QUESTION 2
a) Discrimination, HIV/Aids testing in the workplace and dismissal
The issue if HIV/Aids is a sensitive one, particularly in our country, so much so that a code of good
practice has been established. The code makes reference to testing being justifiable. It also makes
reference to dismissal. Medical testing is prohibited in the broad sense but may be justifiable due to

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the inherent requirements of a job. A nurse with HIV poses an inherent requirement question. Although
it is not necessary that she cannot and will not be able to perform her duties, as it can be managed
there are possible dangers to other staff and patients that cannot be denied. In a case between
Hoffman and SAA, the High court agreed that the employee was incapable of performing the job with
particular regard to public opinion. The Constitutional Court overruled saying that the right of HIV
people to be protected from stigmas and prejudice was of a far greater social value than the prejudice
that SAA would possibly suffer. The case highlighted inherent requirements and the courts attitude
The actual policy of blood testing was indeed important with regard to inherent requirements.
b) Requirements of a valid employment contract
A contract of employment must meet all the requirements that the law prescribes for the conclusion
of a valid contract. These requirements are:
i. There must be an agreement between the parties
ii. The parties to the contract must have the capacity to act
iii. The agreement must be legally possible
iv. Performance under the agreement must be physically possible
v. If any formalities are prescribed for the formation of that particular type of contract, then
these formalities must be satisfied

c) Terms and conditions of employment

i. Maximum working hours
ii. months maternity leave
iii. Not less than 2 weeks annual leave
iv. Provisions relating to night work
v. Provisions relating to sick leave

QUESTION 3
a) Organisational rights entitled to trade unions
i. Access premises of the employer – sufficient representation
ii. Deduction of trade union membership fees – sufficient representation
iii. Election of shop stewards – majority representation
iv. Leave for union activities – sufficient representation
v. Disclosure of information – majority representation
b) Difference between closed and agency shop

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A closed shop agreement is an agreement entered into between a representative trade union and an
employer in terms of which all employees covered by the agreement must be members of the trade
union.

An agency shop agreement is an agreement entered into between a representative trade union and
an employer in terms of which the employer must deduct an agency fee from the wages of employees
identified in the agreement who are not members of the trade union but are eligible for membership.

Infringement of freedom of association

These two agreements seem to be infringing employees’ right to freedom of association, however i
must be noted that section 23(6) of the Constitution provides for union security arrangements. Agency
shop and closed shop agreements are thus not automatically unconstitutional. However, the limitation
by these agreements on freedom of association must still comply with the requirements of section
36(limitation clause) of the Constitution. Furthermore, in order to limit the possibility of agency shop
and closed shop agreements being unconstitutional on the basis that they infringe freedom o
association sections 25 and 26 of the LRA provides certain pre-requisites for concluding valid agency
shop or closed shop agreements.

The purpose of these agreements are to enhance collective bargaining by the development of strong
and powerful trade unions and stable bargaining relationships.
c) An employer can refuse to reveal information if they feel it is not relevant to the outcome for which
the union seeks the information.
i. Employers need not disclose legally privileged information, or where they are bound by a cour
order or would be contravening a law.
ii. Employers need not disclose information about an employee that is private and for which they
have no consent to disclose.
iii. Employers need not disclose information that could cause substantial harm to an employee o
the employer.
Any dispute with regards to disclosure of information must be referred to arbitration; hence no strike
action is permissible. The arbitrator must decide first whether the information is relevant and thereafte
balance the scales as to whether the possible harm caused supersedes the harm caused to the union
in order to perform their duties and obligations.

QUESTION 4
a) Collective agreement

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i. A collective agreement must be in writing.

ii. Only a registered union can be a party to a collective agreement
iii. A collective agreement must regulate terms and conditions of employment or any other matte
of mutual interest between a trade union and the employer or employers’ organizations

b) Purpose of industrial action

Strike - for the purposes of remedying a grievance or resolving a dispute in respect of any matter o
mutual interest between an employer and employee.

Picketing - purpose must be to encourage peacefully non – striking employees and members of the
public to oppose a lock-out or to support a strike. (to exert more pressure on the employer during the
strike)..therefore its conduct in furtherance of a strike.

Protest action - To promote or defend the socio economic interests of workers / pursue economic
interests.

c) Consequences of unprotected strike

i. Interdict
If a strike does not comply with the definition provided by the LRA and/or provisions of sections 64
and 65, it will be unprotected and the Labour Court has jurisdiction to grant an interdict to stop the
unprotected strike or lock-out.

ii. Compensation
The Labour Court may order the payment of just and equitable compensation to anyone who
suffered a loss as a result of an unprotected strike. Compensation will not be granted unless it can
be proved that the loss was as a result of the strike. In deciding whether to grant the order for
payment of compensation, the court must have regard to:
 attempts made to comply with the provisions of the Act,
 the extent of those attempts, and
 whether the strike or lock-out was premeditated. Other factors to be considered are
whether the strike was in response to unjustified conduct by the employer and whether
there was compliance with an interdict. The court must also take into account the
interests of orderly collective bargaining, the duration of the strike and the financial
position of the employer.
iii. Dismissal

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Strikers who participate in an unprotected strike or certain forms of conduct in contemplation or

furtherance of an unprotected strike, may be dismissed. However, participation in an unprotected
strike does not necessarily justify dismissal, the dismissal will only be fair if it is both substantively
and procedurally fair.

d) When the section 64 procedure need not be complied with

Parties to a dispute need not comply with the prescribed conciliation and notice requirements laid
down in section 64(1) of the LRA under the following circumstances:
i. 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.
ii. if parties entered into a collective agreement in terms of which they agree that certain dispute
resolution procedures have to be followed prior to a strike or lock-out being called.
iii. If an employer embarks on a lock-out that is not protected in terms of the LRA, its employees
will be able to strike in response to that unprotected lock-out without complying with the
procedures set out in section 64. By the same token, if employees embark on an unprotected
strike, an employer will also be able to respond by means of an automatically protected lock
out, despite the fact that the employer has not complied with the provisions of section 64.
iv. if an employer has unilaterally introduced changes to the terms and conditions of employmen
of employees (ie the employer has done so without the employees’ consent) or intends o
proposes to do so.

MAY/JUNE 2017
QUESTION 1
1.1 Distinguish between employee and independent contractor [10]
EMPLOYEE INDEPENDENT CONTRACTOR

i. appointed to render personal services in contracted to perform a specified task or to

terms of a job description produce a specific result
ii. contract of service contract of work
iii. employer has right of supervision No right of supervision
iv. worker depends on the employer in the Does not depend on the employer to perform
performance of duties duties
v. employee in terms of an employment Can work for multiple employers
contract is not allowed to work for anyone
else.

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Strikers who participate in an unprotected strike or certain forms of conduct in contemplation or

furtherance of an unprotected strike, may be dismissed. However, participation in an unprotected
strike does not necessarily justify dismissal, the dismissal will only be fair if it is both substantively
and procedurally fair.

d) When the section 64 procedure need not be complied with

Parties to a dispute need not comply with the prescribed conciliation and notice requirements laid
down in section 64(1) of the LRA under the following circumstances:
i. 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.
ii. if parties entered into a collective agreement in terms of which they agree that certain dispute
resolution procedures have to be followed prior to a strike or lock-out being called.
iii. If an employer embarks on a lock-out that is not protected in terms of the LRA, its employees
will be able to strike in response to that unprotected lock-out without complying with the
procedures set out in section 64. By the same token, if employees embark on an unprotected
strike, an employer will also be able to respond by means of an automatically protected lock
out, despite the fact that the employer has not complied with the provisions of section 64.
iv. if an employer has unilaterally introduced changes to the terms and conditions of employmen
of employees (ie the employer has done so without the employees’ consent) or intends o
proposes to do so.

MAY/JUNE 2017
QUESTION 1
1.1 Distinguish between employee and independent contractor [10]
EMPLOYEE INDEPENDENT CONTRACTOR

i. appointed to render personal services in contracted to perform a specified task or to

terms of a job description produce a specific result
ii. contract of service contract of work
iii. employer has right of supervision No right of supervision
iv. worker depends on the employer in the Does not depend on the employer to perform
performance of duties duties
v. employee in terms of an employment Can work for multiple employers
contract is not allowed to work for anyone
else.

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vi. perform his/her duties personally does not really matter who does the work as
long as the job gets done.
vii. paid according to a fixed rate paid according by commission
viii. depends on the employer’s tools provides his/her own tools and equipment
ix. the employer has the right to discipline the No right to discipline the worker
worker
x. economically dependent on the employer Economically independent

1.2 Discus the requirements prescribed by the law for the conclusion of a valid contract
including a contract of employment [10]
The law prescribes certain requirements for the conclusion of a valid contract. The following are the
requirements of a valid employment contract;
i. There must be consensus between the parties
ii. Parties should have necessary capacity to contract
iii. Performance under the contract must be physically possible
iv. Agreement must be legally possible and must be lawful
v. If formalities are prescribed these formalities must be complied with

1.3 What are the four circumstances under which the employees of a labour broker may
hold both the labour broker and the client jointly and severally liable in terms of the
LRA? [8]
TES and the client are jointly and severally liable if the TES, in respect of any of its employees,
contravenes –

i. a collective agreement concluded in a bargaining council that regulates terms and

conditions of employment;
ii. a binding arbitration award that regulates terms and conditions of employment;
iii. the BCEA; or
iv. a sectoral determination made in terms of the BCEA.
1.4 When can an employee take family responsibility leave in terms of BCEA[2]
 Family responsibility leave is taken for the birth or illness of a child or for the death o
adoptive child/spouse/life partner/grandparent or sibling

QUESTION 2

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2.1 Dineo and Bontle Enterpreise (DBE) is a bakery owned by Bana-ba-Sithole

and has 61 employees. DBE was ordered by the Department of Labour to
comply with the affirmative action policy as it is one of the designated
employers in terms of EEA
Who are designated employers in terms of EEA? 10]
Designated employers are employers;
i. Employer who employs 50 or more employees;
ii. an employer who employs fewer than 50 employees but whose annual turnover in any given
year exceeds a certain level (these levels are laid down in Schedule 4 of the EEA);
iii. municipalities;
iv. organs of State (defined in section 239 of the Constitution); and
v. an employer appointed as a designated employer in terms of a collective agreement.
2.2 Discuss the unfair conduct of the employer relating to promotion as a form of unfai
labour practice the employer may commit. [6]
An unfair labour practice is whereby the employer unfairly acts or fails to act in
their conduct with the employee in issues to do with promotion, demotion, probation, training or issues
relating to employee benefits.

Although in general the employee does not have a legal right to be promoted, the circumstances could
however show that an employee had a reasonable expectation to be promoted. Thus the employe
must act substantially and procedurally fair when promoting employees. A number of subjective
factors should be taken into consideration when promoting an employee. Failure to do so will result in
the court interfering, but the employee should show that;
 Employer exercised its discretion arbitrarily
 The reasons provided cannot be substantiated
 The decision was taken on a wrong principle
 The decision was taken in a biased manner

2.3 Under what circumstances may the remedy of not reinstatement not be
awarded to an employee who was unfairly dismissed? [4]
Reinstatement as a remedy will not be awarded to an employee in the following circumstances;
 The employee does not want to be reinstated or re-employed
 The circumstances surrounding the dismissal are such that the continued employmen
relationship is impossible

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 It is reasonably impracticable for the employer to re-employ or reinstate the employee

 The dismissal is only unfair because the employer did not follow a fair procedure

QUESTION 3
3.1 Misconduct
i. Procedural requirements for misconduct
1) Did the employer conduct an investigation to determine whether there are grounds fo
dismissal? yes
2) Did the employer notify the employee of the allegations (in a form and language that the
employee could reasonably understand)?
3) Did the employee get reasonable time to prepare? yes
4) Was the employee allowed to state a case in response to the allegations? Yes
5) Was the employee allowed the assistance of a union representative or co-employee? yes
6) Did the employer after the enquiry communicate the decision taken, and furnish the
employee with written notification of the decision as well as the reasons for the decision?
yes
7) If the employee is dismissed, did the employer remind her/him of any rights to refer the
matter to a bargaining council or the CCMA? Yes

ii. Constructive dismissal

3.2 What are the four requirements for the registration of Trade Unions prescribed by section
95 of the LRA [4]
i. it must adopt a name or abbreviation which is not so close to that of any other union so as to
cause confusion,
ii. it must adopt a constitution that complies with certain requirements,
iii. it must have an address in South Africa, and
iv. it must be independent from any interference or influence by the employer.

3.3 What are the three important elements that distinguish a collective agreements from any
other agreement between employers and employees.[6]
i. A collective agreement must be in writing.
ii. Only a registered union can be a party to a collective agreement
iii. A collective agreement must regulate terms and conditions of employment or any other matte
of mutual interest between a trade union and the employer or employers’ organizations

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3.4 indicate whether each of the following is a matter for consultation or a matter for joint
decision making between the employer and a workplace forum

i. disciplinary codes and procedures – joint decision making

ii. job grading – consultation

QUESTION 4
4.1 Discuss the no work no pay rule and indicate whether it applies to both protected and
unprotected strikes [8]
Given that a contract of employment is reciprocal in nature, the common-law rule of ‘no work, no pay
applies to strikes and lock-outs. Employers do not have to remunerate employees for services no
rendered during a protected strike. There is however an exception to the ‘no work, no pay’ rule which
applies in the case of protected strikes, i.e., if the employees’ remuneration includes payment in kind
in the form of accommodation, the provision of food and other basic amenities of life, the employe
may not stop this payment in kind during the strike if the employees request that it continues. Afte
the strike the employer may recover the monetary value of the payment in kind from the employees
by way of legal proceedings in the Labour Court.

The principle of ‘no work, no pay’ applies to both protected and unprotected strikes

4.2 Members of Our Power Union (OPU) employed by AA Manufacturers (AA) engage in a strike
in support of a demand regarding a 12% wage increase. The strike goes on for a week, bu
the employer still refuses to meet their demand. Members of OPU employed by BB
Suppliers which is a material supplier to AA also go on strike in support of AA. BB is
unhappy about this and is of the opinion that its employees are unreasonable.

i. What are the procedural requirements which must be met in order for the strike by members
of OPU employed by AA to be protected? [7]
Procedural requirements for a protected strike
A. the dispute must be referred to conciliation
 Conciliation could be before a bargaining council or statutory council with jurisdiction over the
sector. If there is no bargaining/statutory council, the matter must be referred to the CCMA for
conciliation.

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 The bargaining council or the CCMA must attempt to resolve the dispute through conciliation
within 30 days of the referral.
 If the parties to the dispute reach an agreement, the dispute is resolved.
 If no agreement is reached, the conciliator must issue a certificate to indicate that the matter
has not been resolved.
 After this (or after 30 days have gone by since referral of the dispute for conciliation), the
parties can give notice of the proposed strike (or lock-out).

B. the required notice of the intended action must be given

 If conciliation fails, or 30 days have passed since the referral of the dispute to either a
bargaining council or the CCMA, at least 48 hours’ written notice must be given of the
commencement of the strike or lock-out.
 If the State is the employer, at least seven days’ notice must be given.
 If the employer is a member of an employers’ organisation, notice must be given to the
employers’ organisation. If the issue relates to a collective agreement to be concluded in a
council, notice must be given to that council.
 The LRA does not prescribe what details the notice must contain; it only regulates that it must
be in writing and must be issued 48 hours before commencement of the strike. In Ceramic
Industries Ltd t/a Betta Sanitaryware & another v NCBAWU & others the Labour Appeal Court
held that the primary aim of a strike notice is to give the employer advance warning of the
proposed strike so that it may prepare for the imminent action.
 The notice must set out the issue in dispute with reasonable clarity.

ii. Advise BB on the nature of the strike by its employees and on the procedural requirements
which must be met in order for it to be protected. [6]
Secondary strikes procedural requirements
a. The primary strike itself must be protected
 The secondary strike will be protected only if the primary strike is protected.

b. secondary strikers must give their employer seven days’ written notice of the commencemen
of the strike
 The secondary employer must receive seven days’ written notice of the commencement o
the secondary strike. This is to give the secondary employer an opportunity to put pressure
on the primary employer to accept the demands of the primary strikers.

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 If the secondary strike is part of a strike about dismissals for operational reasons, or the
secondary employer is the State, 14 days’ written notice must be given to the secondary
employer before the strike can commence.

c. the harm to the secondary employer must not be more than what is required to make an impac
on the primary employer.
 The nature and extent of the secondary strike must be reasonable in relation to the possible
direct or indirect effect that it may have on the business of the primary employer.
 This requirement protects the secondary employer and ensures that the secondary strike
does not cause significant harm to the secondary employer without having any effect on the
primary employer.
 The LRA permits the Labour Court to consider the ‘proportionality’ of the proposed
secondary strike in relation to the primary employer by weighing up the potential effect o
the secondary strike on the primary employer against the potential effect of the strike on the
secondary employer. If the secondary employer is of the opinion that the requirements fo
the secondary strike have not been met, the employer may approach the Labour Court fo
an interdict to prevent or limit the secondary strike.
 In the example above, the secondary strike would not have a proportional effect on A if B
supplied only 2% of A’s raw wood. While in such instance the secondary strike may bring
great financial loss for B, it will have very little impact on A.

4.3 What is the difference between a strike and a protest action? [4]
The main difference between a strike and protest action lies in their purposes. The purpose of a strike
has to do with matters of mutual interest between the employer and employees whereas that of a
protest action has to do with socio economic interests such as Education.

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MAY/JUNE 2016
Question 1
a) List the (4) four common law duties of the employer and four (4) common law duties of the
employee.[8]
Employee’s duties
To enter into the service of the employer
To tender services to the employer
To work competently and to exercise due care and diligence
To obey lawful and reasonable instruction of the employer
To serve the employer’s interest and to act in good faith

Employer’s duties
To remunerate the employee
To provide work
Duty to provide safe working conditions
A duty of fair dealing with employees

b) List the (6) six actions that are defined as “dismissals” in sections 186(1)(a) to (f) of the
LRA [12]
In terms of section 186(1) (a) dismissal means;
i. An employer terminated contract with or without notice
ii. An employee reasonably expected the employer to renew affixed term contract of employmen
on same or similar terms, but offered to renew on less favourable terms or did not renew it.
iii. An employed refused an employee to resume work after she took maternity leave in terms o
any law, collective agreement or her contract of employment
iv. An employer dismissed a number of employee for the same or similar reasons, and offered to
re-employ one or more of them but refused to employ another (selective re-employment)
v. An employee terminated her contract with or without notice because the employer made
continued employment intolerable for the employee
vi. An employee terminated her contract with or without notice because the new employer, afte
transfer provided the employee with conditions or circumstances at work that are less
favourable than those provided by the old employer

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c) Although the medical testing of employees is generally prohibited, there are circumstances
in which medical testing is justified. List (5) five of these justifiable circumstances. [5]
Medical testing of employees is permissible only;
 when legislation requires testing
 when this is justifiable in light of medical facts,
 when employment conditions justifies testing,
 in terms of social policy,
 when they is need for fair distribution of employee benefits or
 it’s the inherent job requirements

d) In terms of the LRA, a labour broker and the client could be held jointly and severally liable
for the contravention of, amongst others, the provisions of the BCEA. Explain what jointly
and severally means [5]
This means the action of one of the parties can be imputed to the other and vice versa. In practice the
labour broker can be sued jointly with the client for the delicts of a client. The parties can also be sued
separately for the actions of the other.

Question 2
a) Distinguish between the following forms of sexual harassment; victimisation, quid pro quo
harassment and sexual favouritism. [3]
i. Victimisation – is when an employee is victimised or intimidated for failing to submit to a sexua
advance
ii. Quid pro quo – is where management coerces employees to surrender to sexual advances in
order to be promoted or other benefits
iii. Sexual favouritism – is when a person in a position of authority rewards only those who respond
to their sexual advances
b) Rababedi and Lekau decided to start a business that manufactures dairy products. The
business has to take into account that dairy products are highly perishable, and this
requires them to vary some of the minimum terms and conditions of employment set by the
BCEA. Rababedi tells Lekau that she once read that although employers were allowed to
vary minimum terms and conditions of employment, they could not vary the so called
“core” terms at all.
i) List the terms and conditions of employment that are non-variable core terms in terms
of the BCEA [4]
i. Maximum working hours

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ii. Provisions relating to sick leave

iii. Four months’ maternity leave
iv. Not less than two weeks’ annual leave
v. Provisions relating to working night shift

ii) Tshidi, who has a qualification in marketing, is appointed as marketing officer by

Rababedi and Lekau. What are the three possible outcomes when her probation period
expires? [3]
i. Extending the probation period in order to enable the employee to improve his performance
ii. To dismiss the employee
iii. To confirm the appointment of the employee
iii) After the business has been in operation for some time, 5 of its 39 employees take
maternity leave at more or less the same time. On their return they are formed that their
services are no-longer required, as new employees were employed in their positions
Discuss the nature of the dismissal of the five employees who went on maternity leave
and whether their dismissal was justified. [5]
This dismissal is defined in section 187 of the LRA as automatically unfair. A dismissal is defined as
automatically unfair if the employer in dismissing the employee works contrary to section 5 and one
of the reasons for the dismissal is due to the employee’s pregnancy, or intended pregnancy or any
reason relating to her pregnancy.

c) The definition of operational requirements in the LRA distinguishes between four broad
categories of operational categories. List the four categories [4]
i) Economic
ii) Technological
iii) Structural or
iv) Similar needs of the employer

d) During consultations between the employer and the trade union prior to dismissal for
operational reasons, the parties must attempt to reach consensus on six matters. List these
matters. [6]
 Appropriate measures to minimise the number of dismissals
 Appropriate measures to avoid dismissals
 Appropriate measures to change the timing of the dismissals
 Appropriate measures to mitigate the adverse effects of the dismissals

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 Selection criteria and

 Severance pay

Question 3
a) Mpho works in the dispatch department of 2016 Electronics. He is accused of stealing an
iPad from the company’s store room. Greg the dispatch manager, tells Mpho to go home
and never come back to the company, because he is a thief. Mpho thinks that the dismissa
was unfair, because he was not given the opportunity to defend himself and wants to refer
the matter to CCMA.
Advise 2016 Electronics on the steps that the company should have taken in order for Mpho’s
dismissal to have been procedurally fair. [7]
Procedural fairness for misconduct entail that;
i) The employer must conduct an investigate to determine if they are grounds for dismissals
ii) The employer must notify the employee of the allegations (in a form and language the
employee can reasonably understand)
iii) The employee must be given reasonable time to prepare
iv) The employee must be allowed to state a case in response to the allegations.
v) The employee must be allowed the assistance of a union representative or co-employee
vi) The employer must communicate the decision taken and provide the employee with written
notification of the decision as well as reasons for the decision.
vii) If the employee is dismissed the employer must remind him of his rights to refer the matter to
a bargaining council or CCMA.

b) What does the right to freedom of association that the workers enjoy entail? [3]
 Freedom of association entail the rights of workers to form and join trade unions of their choice
and to participate in the lawful activities of these trade unions.

c) List the five organisational rights that the trade unions enjoy in a workplace in terms of the
LRA, and indicate the level of representation a trade union needs in a workplace to acquire
each of these rights. [10]
The organisational rights that the trade unions can enjoy in the work place are the following;
i) Right of access to the premises of the employer- sufficient representation
ii) The right to have trade union membership fees deducted by the way of a stop order
sufficient representation
iii) The right to elect trade union representative i.e. shop stewards- majority representation

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iv) The right of trade union representatives (shop stewards) to get time off for trade union
activities – sufficient representation
v) The right to disclosure of information – majority representation

Question 4
a) The LRA encourages collective bargaining, but does not compel parties to bargain, and i
the employer refuses to bargain, employees may strike. Explain what actions of the
employer are considered to be forms of a refusal to bargain. [5]
 The employer’s refusal to recognise a trade union as a bargaining agent
 The employer’s refusal to establish a bargaining council
 The employer’s withdrawal of recognition of a collective bargaining council
 The employer’s resignation as a party to a bargaining council
 The employer disputing appropriate bargaining units, levels and topics

b) Distinguish between a trade union and a workplace forum. [6]

A trade union is a juristic body which deals with wage related issues and which may embark on
industrial action, whereas a workplace forum is not a juristic person and deals with non-wage related
issues and cannot embark on industrial action

c) ABC Company (ABC) Workers Power Union (WPU) commence their annual wage
negotiations in the beginning of March 2016. WPU demands an across the board wage
increase of 12% ABC is adamant, however, that it can only afford a 4, 5% across the board
increase. WPU refers the dispute to the bargaining council for conciliation, and three weeks
later the council issues a certificate that the dispute could not be resolved. WPU then issued
ABC with notice of its intention to strike.
Answer the following questions
i) Assuming that the strike is protected, discuss whether ABC may dismiss the striking
employees. [4]
One of the legal consequences of a protected strike is that the striking workers cannot be dismissed
Section of the LRA provides that an employer may not dismiss an employee participating in a
protected strike. This rationale for protecting striking workers was explained by the court in Black Allied
Workers Union v Prestige Hotels where it was held that if an employer facing a strike could merely
dismiss an employee from employment then strikes would have little or no effect at all.

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ii) Discuss whether ABC is obliged to continue remunerating (paying) members of WPU
who are engaged in the protected strike. [6]
One of the legal consequences of a protected strike is that the employer may not remunerate the
employee on a strike. This stem from the common law position of no work no pay. However, the
employer should keep providing other benefits such as housing, food and medical aid contributions.

d) Distinguish between a strike and protest action [4]

A strike is a concerted partial or complete refusal to work by a number of employees. The purpose o
the strike would be to remedy a grievance or resolving a dispute in respect of any matter of a mutua
interest between the employer and the employee. On the other hand, a protest action is partial o
complete refusal to work by a number of employees but the purpose is promoting or defending socio
economic interests of workers.

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OCT/NOV 2015
QUESTION 1
a) Formal equality focuses on protecting individuals against discrimination. It views individual ability
and performance as the only factors relevant for achieving success in society.

b) Temporary/contract employees employed for a specific period or for a specific project (example
seasonal harvesting or a one off census project) instead of employing employees on a permanen
basis. These employees are recognised and protected according to the LRA, BCEA, EEA and
SDA.

c) This duty is captured by the constitutional right to fair labour practices in section 23 of the
Constitution. The LRA protects employees against unfair treatment during the time of employmen
(unfair labour practices) and against unfair dismissal. This duty is wide enough to include othe
common law duties such as the duty to receive the employee into service and to comply with othe
statutory obligations.

d) Section 186(1)(e) provides that, “Where an employee resigns because the employer made
continued employment intolerable for the employee, it will constitute a “dismissal”, better known
as a “constructive dismissal”. Although the employee (and not the employer) terminates the
contract, it was not done voluntarily. The employer’s conduct made it impossible for the employee
to continue working for the employer.”
Copeland and New Dawn Prophesy Business Solutions (Pty) Ltd
The court held that an employee alleging constructive dismissal has to show:
“…convincingly that his resignation…came about as a consequence of the employer being the “villain
in the employment scenario who made the employment relationship “intolerable” to him, to such an
extent that he finally in desperation, having exhausted all internal mechanisms of the employe
available to him, was left with no other viable alternative but to resign”

The court made it clear that the following three elements must be present to succeed in a claim o
unfair dismissal:
 the employee must show that he/she has resigned
 the employee must show that the reason for the resignation was that continued employmen
become intolerable, and

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 the employee must show that it was the employer’s conduct that created the intolerable
circumstances

Albany Bakeries Ltd v Van Wyk and others

The employee resigned after he had been demoted. The court held that, under the circumstances
the demotion did not make employment intolerable

e) The EEA does not expressly regulate equal pay for equal work. However, the Labour Court has
held that remuneration is an employment policy or practice. Paying an employee less than anothe
performing the same or similar work based on an unspecified ground constitutes less favourable
treatment. Therefore, any claim of equal pay for work that is the same or similar can be brought in
terms of the EEA. The same principle applies with regards to equal pay for work of equal value
Mangena & others v Fila South Africa (Pty) Ltd & others
Shabalala (a black male employee) alleged that he was paid less than McMullin (a white female co
employee) for doing the same work based on race. The court took into account ILO Convention 100
on equal pay between sexes and extended it to include other specified or unspecified grounds such
as race

However, no factual foundation was laid down in relation to the similarities of the work done by
Shabalala and McMullin. In fact Shabalala’s allegations were found to be speculative.He was an
administrative clerk providing price stickers, en elementary mechanical job. McMullin on the othe
hand did a sale-on-consignment job involving large clients. Her job required judging and taking
decisions Shabalala thus failed to establish a prima facie case. An attempt at an alternative claim
based on work of equal value was held to be misplaced

f) Affirmative action measures apply only to suitably qualified people from designated groups
Designated groups are black people (meaning African, Coloured and Indian people), women and
people with disabilities. In terms of a recent decision “black people” also include Chinese people.
A member of a designated group must be “suitably qualified” to benefit from affirmative action
“Suitably qualified” means that the person has one of the following four:
 formal qualifications;
 prior learning;
 relevant experience; or
 the capacity to acquire, within a reasonable time, the ability to do the job.

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g) A small employer employs a small number of employees eg less than 50.

h) Maximum of 45 hours a week. If an employee works 5 days a week or less, he/she may not work
more than 9 hours a day. If an employee works 6 days a week, he or she may not work not more
than 8 hours a day (these hours include an hour lunch break).

i) The purpose of a restraint-of-trade agreement is to protect the employer’s trade secrets, goodwil
and business connections. It prevents the employee from competing with his or her employe
within a defined area and for a prescribed period. In determining whether a restraint-of-trade is
enforceable, a court will balance the following;

 The public interest, which requires parties to comply with contractual obligations even if these
are unreasonable or unfair VS
 The right of all persons to be permitted as far as possible to engage in commerce or the
professions of their own choice.
Questions to determine reasonableness:
 Is there and interest deserving of protection at the termination of the agreement?
 Is that being prejudiced?
 If so, how does that interest weigh up against the interests of the other party not to work?
 Is there another facet of public policy apart from the relationship between the parties, which
requires that the restraint should either be enforced or disallowed?
 Is the restraint wider than is necessary to protect the protectable interest?

j) Lock out’ is defined as the exclusion by an employer of employee from the employer’s workplace
for the purpose of compelling the employees to accept the demand in respect of any matter o
mutual interest between the employer and employee, whether or not the employer breaches those
employee’s contracts of employment in the course of or for the purpose of that exclusion’

QUESTION 2
a) Qxn
i. Economic needs because Seane (Pty) Ltd encountered financial difficulties.
ii. Yes. As long as fairness and procedures in terms of the LRA are followed.

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iii. LIFO and FIFO are procedural methods that are used to determine whether an employer used fai
and objective selection criteria in dismissing employees based on operational reasons. LIFO
means last in, first out FIFO means first in, first out

b) Absent without leave (AWOL) is when an employee does not want to terminate the employmen
contract, but stays away from work without leave. AWOL warrants dismissal if the period o
absence is unreasonably long. Provided the employee returns a few days with a latter to show tha
he/she had a reason for the absence eg having been hospitalised or imprisoned, a dismissal wil
not be appropriate. Desertion involves the employee, without resigning, stays away from work with
the intention of terminating the contract of employment. The employer must terminate the
employment contract by holding a disciplinary hearing in the absence of the employee. If the
employee returns after dismissal, the employer must give him/her an opportunity to be heard.

c) Hamba Boya Hotel may fairly dismiss Abraham based dishonesty. A general principle holds tha
dishonesty caused by an employee harm the relationship of trust and confidence between the
employer and employee, and it would be fair to dismiss such a dishonest employee. The
employment contract between Hamba Boya Hotel and Abraham was influenced by the latter’s
misrepresentation that he was a holder of an MBA degree yet he was not. In other words there
was no consensus from the start. It is clear that the employer suffered a loss as a result of such
misrepresentation that is through wages and benefits that would not have accrued to Abraham
The employer obviously would not have hired him from the start if they were aware that he had no
completed the MBA degree.

QUESTION 3
a) Neither the Constitution nor the LRA defines ‘collective bargaining’ but it is generally held to be
negotiations between parties with the view to listen and consider the views of others in order to
find common ground. Through collective bargaining parties (trade unions and
employers/employers’ organisations) with different views and desires are able to reach agreemen
on a variety of issues. It is called collective bargaining because employees, collectively
represented by a trade union, and not as individuals, negotiate with the employer.
The duty to bargain
Although section 23(5) of the Constitution provides for the right to collective bargaining, this does no
mean that there is a duty on employers to bargain with employees, or employees with employers. The
LRA encourages collective bargaining by granting organisational rights and by allowing union security

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arrangements. The refusal to bargain can result in industrial action by employees in order to convince
the employer to bargain.

Employees organise themselves into trade unions which represent them during bargaining. A trade
union is defined as an association of employees whose principal purpose is to regulate the relations
between employers or employers’ organisations and employees.

A single employer can engage in collective bargaining with a trade union, or employers may form an
employer’s organisation which will serve as bargaining agent. Trade unions and employers
organisations may together form bargaining councils.

Three main functions of bargaining councils in terms of section 28 of the LRA;

 to conclude collective agreements
 to enforce those collective agreements
 to prevent and resolve labour disputes
Bargaining can take place on the following levels:
i. Plant level - this takes place between the employees and the employer for/in a specific plant o
factory.
ii. Sector level - this takes place in a specific sector of the economy in a specific geographica
area.
iii. Industry level - this is bargaining for a whole industry, e.g. mining

b) Main goal is to reach consensus on issues and formalise their relationship via a collective
agreements. The LRA has a collective agreement as a written agreement concerning terms and
conditions of employment or any other matter of mutual interest concluded between one or more
registered trade unions on the one hand and one or more employers or employers’ organisations
on the other.

Three important elements define a collective agreement compared to other employer/ee relationships
 It is in writing
 Only a registered trade union can be a party
 Must regulate an agreement between the parties

A collective agreement binds;

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 The parties to the agreement

 Each party and other members insofar as it relates to them
 Members of registered trade union and employers for issues related to;
o Terms and conditions
o Relationships of employers to employees and vice versa
 Employees who are not members of registered unions are bound if;
o They are identified in the agreement
o The agreement expressly binds them
o The union represents the majority of the workers
A collective agreement may change conditions of work provided it is not in conflict with the BCEA
c) A closed shop agreement is an agreement entered into between a representative trade union and
an employer in terms of which all employees covered by the agreement must be members of the
trade union.

An agency shop agreement is an agreement entered into between a representative trade union and
an employer in terms of which the employer must deduct an agency fee from the wages of employees
identified in the agreement who are not members of the trade union but are eligible for membership.

QUESTION 4
a) Unregistered trade unions and employees acting on their own cannot authorize a picket. This is
mainly to ensure that trade unions take responsibility for the conduct of their members taking par
in a picket. The authorization of a picket must be in accordance with the trade union’s constitution
The authorization must be formal and in writing and must be accompanied by a resolution
authorizing the picket. These documents should then be served on the employer before the
commencement of a picket.

b) Trade unions may acquire organisational rights in the following ways:

COLLECTIVE AGREEMENT
The LRA makes provision for a registered trade union and an employer or employer’s organisation to
conclude a collective agreement that regulates organisational rights. This means, even if the trade
union is not representative, it could have organisational rights on which the parties agreed

MEMBERSHIP OF A BARGAINING COUNCIL

A registered trade union that is a party to a bargaining council, automatically acquires the right o
access to the premises and the right to have trade union subscriptions deducted by stop orders, in

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respect of all workplaces falling within its jurisdiction of the bargaining council. A union acquires these
rights irrespective of whether it is sufficiently representative or not

STRIKE ACTION
A trade union, including a minority union, may strike in support of a demand for organisational rights
even if it does not meet the statutory threshold for acquiring such rights

SECTION 21 PROCEDURE
This requires that the union notifies the employer in writing that it seeks to exercise its organisationa
rights. Within 30 days they must meet to conclude a collective agreement. If they do not conclude
then either party can refer the dispute to the CCMA for conciliation. If no conciliation reached, then
the parties can process to arbitration or alternatively strike / lock out after serving appropriate notice

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MAY/JUNE 2015
Question 1
a) List the 3 categories of non-standard employment. [3]
i. Part-time workers
ii. Fixed term
iii. Temporary Employment Services (labour brokers)

b) Discuss the purpose of a restraint of trade clause in an employment contract. [4]

A restraint of trade clause is inserted in the contract to protect the employer’s interests, goodwill, and
business connections against unfair competition during and after employment. It also helps preven
an employee from competing with his employer within a specific area and specific period.
c) What are the general conditions set by the Employment Services Act regarding the
employment of foreign nationals? [3]
- The Act provides that any foreign nationals employed in S.A will be protected by fair labou
practices and may only perform work as authorised in terms of their work visa.
- If the employer employees a foreign national the employer should prepare a skills transfer fo
that position.
- An employer cannot engage a foreign national in work that is contrary to the terms of his/he
work visa.

d) Discuss the employer’s duty to provide the employee with safe working conditions. [5]
The employer is obliged to provide the employee with safe working conditions. This include the
employer’s duty to;
 Provide employees with safety devices or install safety equipment
 Exercise proper supervision
 Protect employees from harassment
 Contribute to the Compensation Fund to ensure that employee injured at work will be
compensated

e) Discuss sick leave as prescribed by the BCEA [5]

The BCEA provides for a 6 weeks paid sick leave in a three year cycle or 36 months. If an employee
has been absent for 2 or more consecutive days on more than 2 occasions in a eight week cycle the
employer may request a medical certificate issued by a medical doctor or a person registered with a

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professional council. A leave cycle is calculated as the number of days an employee normally work
during a 6 week cycle.

f) What is the difference between differentiation and discrimination for purposes o

employment equity? [6]
In Harksen v Lane the court drew a distinction between differentiation and discrimination. It held tha
differentiation is treating people differently but doesn’t necessarily constitute discrimination and that i
will be acceptable where it is based on a valid ground and serves a legitimate purpose. On the othe
hand discrimination is a form of differentiation which is based on unlawful or illegitimate grounds.

g) What are the factors that have to be considered in determining whether a person from a
designated group is suitably qualified to benefit from affirmative action? [4]
In Fourie the Labour court held that in deciding on the degree of disadvantage the following should
be considered;
 South African history
 The imbalances of the past
 The fact that apartheid was designed to protect white people
 The fact that the black particularly African employees suffered the brunt o
discrimination
 The purpose and objectives of the EEA.
QUESTION 2
a) What is the distinction between a precautionary and a punitive suspension?[4]
Precautionary suspension refers to an interim measure where the employee is forced to leave thei
workplace for a specified period. The interim measure is imposed by an employer not for disciplinary
purposes but imposed to allow proper investigation of the charges an employee is accused of. In this
way the employee concerned does not interfere with witnesses or tamper with evidence. The
suspension is accompanied by full pay since the employee has not yet been found guilty of the offence
charged with. On the other hand punitive suspension is where the employee is instructed not to come
to work for a particular period. The measure is used as an alternative to dismissal. This is so because
the employee would have already been found guilty but dismissal is deemed not to be appropriate
The employee is punished by suspending them without pay.

b) Discuss impossibility of performance as a way of terminating the employment contrac

[5]

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If the contract becomes impossible for either of the parties to perform, the contract comes to an end
and no performance is required from either of them.

c) Anzo who has been a shop steward for many years has been promoted to the position o
area manager in LLZ (Pty) Ltd. After his appointment Anzo is informed that he should
relinquish the union position. Anzor refuses and LLZ (Pty) Ltd informs him that he has 30
days to make up his mind, or he will be dismissed.
Discuss whether or not Anzo‘s dismissal will amount to an automatically unfair dismissal. [6]

A dismissal is automatically unfair if the employer, in dismissing the employee acts contrary to section
5, where the reason for dismissal relates to the employee’s trade union membership or activities.
All employees including senior management enjoy the right to freedom of association however if a
senior manager is also a member of a trade union there is potential for conflict of interest since a
managerial employee has access to information that can harm the employer if divulged to the union
In Imatu and Others v Rustenburg Transitional Council it was held that a senior manager cannot be
prevented from joining a trade union but must act in good faith towards the employer and must be
careful in order to balance trade union and employer’s interests. Therefore if LLZ (Pty) Ltd dismisses
Anzo the dismissal will automatically be unfair.

d) Discuss the payment of severance pay as one of the procedural requirements with which
the employer must comply with when dismissing employees for operational reasons. [6]
In terms of section 41 of the BCEA an employer must pay severance pay equivalent to one week
salary for every year completed of continuous service. However the requirement to pay severance
pay is not absolute. If the employee unreasonably refuses to accept the employer’s offer for alternative
employment with that or any other employer the employee will forfeit entitlement to severance pay.

QUESTION 3
a) What are union security arrangements? [2]
Closed shop and agency shop agreements.

b) AAF is a trade union registered in terms of the LRA AAF has members employed in Stee
and Aluminium (Pty) Ltd, but wants to gain more support within the company by acquiring
organisational rights. AAF approaches you for advice on the different methods by which i
can acquire organisational rights in Steel and Aluminium. Advice AAF. [8]

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A union can acquire organisational rights in terms of a collective agreement. –this is possible when
an employer’s organisation and trade unions sign a collective agreement that will regulate
organisational rights.
Membership of a bargaining council – a registered trade union that is party to a bargaining counci
automatically acquires some rights i.e access to the employer’s premises and to have subscription
fees deducted by stop order.

Through a strike - a trade union may embark on a strike demanding organisational rights thus make
acquire those rights if the employer is forced to agree to their demands.

The LRA also grants organisational rights to registered unions for the purpose of making it possible
for trade unions to effectively function. A union will also acquire some organisational rights when i
becomes a member of a bargaining council.

c) What benefits are granted to trade unions by the LRA in order to encourage them to
register?[5]
The LRA encourages trade unions to register by granting organisational rights set in the LRA to
registered trade unions only. Only registered trade union may;
 Acquire and exercise organisational rights
 Conclude collective agreements which are enforceable under the LRA
 Be a member of a bargaining council, statutory council or workplace forum
 Conclude closed shop and agency shop agreements
 Authorise a picket and
 Represent members at CCMA proceedings

d) Discuss whether they is a duty to bargain in terms of the LRA. [5]

LRA does not place a duty on the parties to bargain neither does it regulate what parties may or may
not do during the bargaining process. The LRA however supports the role of collective bargaining as
mechanism for regulating labour relations and solving disputes. It does this by encouraging and
promoting collective bargaining by;
 Protecting the rights of employees to form, join and participate in the activities of a trade union
 Enabling trade unions to obtain organisational rights
 Permitting employees to strike in an attempt to force the employer to negotiate with a trade
union.

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 Making provisions for closed shop and agency shop agreements

 Granting the parties the right to establish bargaining councils
 Regulating the legal status for the enforceability of the product of a collective bargaining thus
making collective bargaining effective.

QUESTION 4
a) Draw a distinction between a workplace forum and a trade union [6]
A trade union is a juristic body which deals with wage related issues and which may embark on
industrial action, whereas a workplace forum is not a juristic person and deals with non-wage related
issues and cannot embark on industrial action

b) What are the limitations or prohibitions on strikes in terms of section 65 of the LRA. [5]
Section 65 places substantive limitation to the right to strike in instances where the strike is absolutely
prohibited because of the parties involved and the nature of the services rendered by the parties
Hence in terms of section 65 a strike is unprotected even if all the requirements have been complied
with. Eg strike by essential services.

c) Zama-Zama (Pty) Ltd a company which manufactures and sells milk products, experiences
a high level of absenteeism by its employees. Zama-Zama (Pty) Ltd approaches the majority
trade union, Milk Products Employees Association (MPEA), to negotiate a disciplinary code
and a clocking system. Negotiation reach deadlock as the employer insists on the no work
no pay principle for the days on which employees do not come to work. The matter is
referred to a bargaining council with jurisdiction for conciliation and three weeks after the
referral, MPEA serves Zama-Zama (Pty) Ltd with notice that its members will engage in a
strike.
Advise Zama-Zama (Pty) Ltd on whether the strike by members of MPEA will be protected and
on the possible legal actions it may take against the striking employees. [10]

A protected strike refers to a strike that complies with procedural requirements for a strike. The
requirements are;
i. The issue in dispute must be referred for conciliation
ii. A certificate of the outcome must be issued
iii. 30 days must have passed from date of referral to conciliation
iv. At 48 hours’ prior written notice must be given to the other party.

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The strike will only be protected if these requirements are complied with. It looks as if some
requirements have not been complied with for example the 30 days have not passed from referral and
the facts do not state whether a certificate of the outcome was issued and the 48 hours’ prior written
notice is not there. Therefore, MPEA’s strike will not be protected.

h) What are the requirements which must be met in order for protest action to enjoy
protection? [4]
In terms of section 77 of the LRA all employees not engaged in essential services have the right to
participate in a protest action if the following requirements are met:
i. If the protest action has been called by a registered trade union or a federation of trade unions
ii. The registered trade union has served a notice on NEDLAC stating
 Reasons for the protest action
 The nature of the protest action
iii. The matter giving rise to the intended protest action has been considered by NEDLAC or any
other appropriate forum in which the parties concerned are able to participate in order to resolve
the matter
iv. At least 14 days before the commencement of the action, the registered trade union has served
the notice on NEDLAC of its intention to proceed with its protest action

If these requirements are met the protest action will be protected and there will be protection agains
civil claims and dismissals.

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“TES” – Temporary Employment Services

- Page 26 TB

1. Maximum working hours

2. Provisions relating to night work
3. Not less than 2 weeks’ annual leave
4. Four months maternity leave
5. Provisions relating to sick leave
- Page 69 TB

‘‘foreign national’’ means an individual who is not a South African citizen or does not have a
permanent residence permit issued in terms of the Immigration Act;

A temporary employee is employed by a temporary employment service. This refers to employees

supplied to a client by a TES / labour broker on temporary basis or to render a temporary service for
the client.

- Page 26 TB

1. Victimisation
An employee is victimised or intimidated for failing to submit to sexual advances
2. Quid pro quo harassment
Employment circumstances, for eg. Promotion or an increase are influenced by the
employer / manager / co-employee to coerce an employee to surrender to sexual advances
3. Sexual favouritism
A person in a position of authority in the workplace rewards only those who respond to
her/his sexual advances
- Page 84 TB

1. A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary
to section 5 (confers protection relating to the right to freedom of association and on
members of workplace forums) or, if the reason for the dismissal is:

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2. That the employee participated in or supported, or indicated an intention to participate in or

support, a protected strike or protest action;
3. That the employee refused, or indicated an intention to refuse, to do any work normally
done by an employee who at the time was taking part in a protected strike or was locked
out, unless that work is necessary to prevent an actual danger to life, personal safety or
health;
4. A refusal by employees to accept a demand in respect of any matter of mutual interest
between them and their employer;
5. That the employee acted, or indicated an intention to act against the employer by –
a. Exercising any right conferred by this Act; or
b. Participating in any proceedings in terms of this Act
6. The employee’s pregnancy, intended pregnancy, or any reason related to her pregnancy
7. That the employer unfairly discriminated against an employee, directly or indirectly on any
arbitrary ground, including but not limited to race, gender, sex, ethnic or social origin,
colour, sexual orientation, age, disability, religion, conscience, belief, political opinion,
culture, language, marital status or family responsibility;
8. A transfer, or a reason related to a transfer, contemplated in section 197 or 197A; or
9. A contravention of the Protected Disclosures Act, 2000, by the employer on account of an
employee having made a protected disclosure defined in that Act
- Page 184 TB

Direct discrimination is usually easy to detect and identify. It occurs if someone is clearly treated
differently because of a certain characteristic, for e.g. Race, or gender. E.g. Where an employee is
not promoted simply because she/he is disabled or divorced.

Indirect discrimination is often diHashtag CCuised and hard to detect. It occurs when criteria that
appear to be neutral, negatively and disproportionately affect a certain group, for e.g. Gay or Hindu
people. For e.g. Where a requirement is that candidates by physically strong, it favours more men
than women. Unless this criterion can be justified by the requirements of the job, it will amount to
indirect discrimination.

- Page 76 TB

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The Bill of Rights, contained within the Constitution of the Republic of South Africa, enshrines the
rights of all the people in our country. These rights include, but are not limited to, the right to human
dignity, equality and privacy. Baitseng has a Constitutional right to privacy and therefore had no duty
to disclose her HIV status to HASHTAG CC. Furthermore, according to section 6 of the Employment
Equity Act, no person may unfairly discriminate, directly or indirectly, against an employee on the
ground of his/her HIV status.

If a dismissal is based on unfair discrimination against an employee whether it is directly or indirectly

on any arbitrary ground, the dismissal is automatically unfair. In Baitseng’s case, she was dismissed
based on unfair discrimination because of her HIV status. In Allpass v Mooikloof Estates (Pty) Ltd t/a
Mooikloof Equestrian Centre an employee was dismissed after disclosing he had several illnesses
including HIV. The court found that the employee was automatically unfairly dismissed since the real
reason for dismissal was because of the employee’s HIV status.

There are various remedies available to Baitseng in terms of the Constitution, the Labour Relations
Act and the Employment Equity Act.

Since Baitseng’s Constitutional rights such as her right to privacy and human dignity have been
infringed, the Constitution provides that any competent court may be approached to provide relief.

One form of dispute resolution offered within the LRA is the Commission for Conciliation, Mediation
and Arbitration (CCMA). The function of the Commission is to attempt to resolve disputes. The
Employment Equity Act allows for the referral of disputes to the CCMA. The LRA also provides for the
appointment of an arbitrator to conduct a pre-dismissal inquiry into the conduct of or capacity of an
employee.

Dispute resolution for an automatically unfair dismissal follows the following sequence:

1. Employee is dismissed
2. The employee must refer the dispute for conciliation to CCMA / bargaining council within
30 days from the date of dismissal
3. Either the conciliation is successful and the matter is resolved, or the matter has not been
successfully resolved
4. If the matter has not been resolved, the matter is then referred for adjudication to the
Labour Court
5. The Labour Court will then make a ruling on the matter - In terms of section 193 of the LRA,
if the Labour Court or arbitrator finds the dismissal to be unfair, they may order the

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employer to reinstate or re-employ the employee or the employer could be ordered to pay
the employee compensation.
6. The employee may then appeal to the Labour Appeal Court

An employment relationship is built on trust and confidence and it is an implicit duty that an
employee owes his/her employer a duty of good faith, also referred to as a “fiduciary” duty. It
includes, for e.g. the duty not to work against the employer’s interests, not to compete with the
employer, not to make profit at the expense of the employer, to devote hours of work to promoting
the employer’s business and to act honestly. A disclosure of confidential information (such as trade
secrets or information that is damaging to the employer) by the employee will amount to breach of
this duty. The duty to act in good faith (e.g. to promote and protect the business and reputation of
the employer) may be extended beyond employment, for e.g. through a restraint of trade
agreement.

- Page 46 TB

It is important to note that the courts will only intervene in disputes about promotion if the
employer acted in bad faith, for e.g. where:

 The employer exercised its discretion inconsistently,

 The reasons provided cannot be substantiated,
 The decision was taken on a wrong principle, or
 The decision was taken in a biased manner.
- Page 108 TB

Precautionary suspensions could be implemented to allow an employer to investigate the

alleged misconduct of an employee, and to decide whether disciplinary action should be
taken against the employee. Suspension is with pay unless the employee agrees to suspension
without pay, or a law or collective agreement authorises unpaid suspension. CASE LAW: Sappi
Forests (Pty) Ltd v CCMA & Others [2009] 3 BLLR 254 (LC)

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Punitive suspension – Fair suspension without pay could be an alternative to a sanction of dismissal
in an attempt to correct the behaviour of the employee. It can be seen as a form of progressive
discipline where appropriate.

- Page 113 / 114 TB

When an employee is dismissed based on the operational requirements of the employer in terms of
the LRA, the employer must pay the employee severance pay equal to at least one week’s pay for
each completed year of continuous service with that employer. If an employee has worked at a
particular employer for six years and seven months and his/her contract is ended on the basis of
operational requirements, she/he must receive six week’s severance pay. An employee who
unreasonably refuses to accept an offer of alternative employment with that employer or any other
employer, is not entitled to severance pay.

- Page 64 TB

The primary remedy for unfair dismissal is reinstatement which must be ordered except in the
following circumstances, where compensation will rather be awarded:

 Where the employee does not wish to be reinstated or re-employed

 Where the circumstances surrounding the dismissal are such that a continued
employment relationship would be intolerable
 Where it is not reasonably practicable for the employer to reinstate or re-employ the
employee, or
 Where the dismissal is unfair only because the employer did not follow a fair procedure
- Page 224 TB

Dismissal sets the following requirements for substantive fairness in case of dismissal for
misconduct:

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 Did the employee contravene a rule or standard regulating conduct in, or of relevance
to, the workplace?
 If so, was the rule valid and reasonable? This is normally determined with reference to
the needs of the workplace and business.
 Was the employee aware of the rule or could she/he reasonably be expected to have
been aware of the rule? An employee can only be punished if she/he knew that the
conduct was unacceptable and that a transgression of the rule could lead to dismissal.
 Did the employer consistently apply the rule? An employer cannot enforce a rule which
had been previously ignored. This is called ‘historical inconsistency’ because present
conduct is inconsistent with past conduct. If a rule is to be enforced in the future, the
employer must inform the employees beforehand. If at a given time an employer’s
treatment of several employees guilty of the same offence were inconsistent, that
would be ‘contemporaneous inconsistency’.
 Is dismissal an appropriate action for contravention of the rule? Dismissal should be
seen as a matter of last resort.
- Page 196 TB

The LRA protects freedom of association for trade unions by stating the following:

Every trade union has the right to:

 Determine its constitution and rules;

 Hold elections for office-bearers;
 Plan and organise its administration and lawful activities;
 Join federations, and
 Affiliate with and participate in the affairs of international organisations
- Page 239 TB

Organisational rights are granted to unions by the LRA to enable them to function more effectively
and to build support at the workplace. It is important to note that only registered trade unions can
exercise organisational rights.

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As per section 16 of the LRA: Only relevant information must be disclosed, that is, information that
will allow shop stewards to perform union functions effectively and engage effectively in collective
bargaining. The employer cannot be expected to disclose information which:

 Is not available,
 Is not relevant to the issues under discussion,
 Is legally privileged,
 Could harm the employer’s business interests if disclosed, and
 Is private personal information relating to an employee (unless the employee has
consented to disclosure of such information)
Entitlement of unions to organisational rights depends on the level of representation of the trade
union in the workplace, which can be either majority representation or sufficient representation. If a
union represents the majority of workers, it will have access to all organisational rights.

- Page 246 TB

The powers and functions of a bargaining council are outlined in section 28 of the LRA as follows:

 To conclude collective agreements,

 To enforce such collective agreements,
 To prevent and resolve labour disputes,
 To promote and establish training and education schemes,
 To establish and administer pension, provident, medical aid, sick pay, holiday,
unemployment and training schemes,
 To develop proposals for consideration by NEDLAC,
 To determine by collective agreement matters which may not be resolved through industrial
action,
 To provide industrial support services within the sector, and
 To extend its services to workers in the informal sector and home workers.
- Page 259 TB

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Consultation entails that the employer allows the forum to make representations and to advance
alternative proposals, and considers and responds to these. If the employer disagrees with them it
must state the reasons for disagreeing.

Consultation must take place before the employer implements any proposal. The purpose of
consultation is to attempt to reach consensus. If, during consultation, the employer and the forum
do not reach consensus, nothing prevents the employer from implementing a decision on which it
has consulted the forum. However, if the employer and the forum do not reach consensus, the
employer must use any agreed procedure to resolve any differences before implementing the
employer’s proposal.

The LRA provides that a forum is entitled to be consulted by the employer about proposals (unless
they are regulated by a collective agreement) relating to:

 Restructuring the workplace,

 Changes in the organisation of work,
 Total or partial plant closure,
 Mergers and transfers of ownership in so far as they have an impact on the employees,
 The retrenchment of employees,
 Exemption from any collective agreement or law,
 Job grabbing,
 Criteria for merit increases or the payment of discretionary bonuses,
 Education and training,
 Product development plans, and
 Export promotion
- Page 268 TB

A strike is the partial or complete concerted refusal to work, or the retardation or obstruction or
work, by people who are or have been employed by the same employer or by different employers,
for the purposes of remedying a grievance or resolving a dispute in respect of any matter of mutual
interest between employer and employee and every reference to workin in this definition includes
overtime work, whether it is voluntary or compulsory.

The above definition contains three important components:

1. There must be a refusal to work

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2. The work stoppage must be a concerted action by people employed by the same or different
employers
3. The purpose of the stoppage must be to remedy a grievance or resolve a dispute in respect
of a matter of mutual interest between the employer and employees
It is important that the action taken by the employees comply with all three elements of the
definition because any intentional refusal to work will amount to misconduct unless it can be
regarded as strike action.

The refusal to work must be:

- In relation to work which employees are contractually obliged to perform, and

- In relation to work which is not contrary to the law or a collective agreement.
- Page 276 TB

This is a case of a secondary strike. In order for a secondary strike to be protected, the LRA sets the
following requirements:

 The primary strike itself must be protected,

 Secondary strikers must give their employer seven days’ written notice of the
commencement of the strike, and
 The harm to the secondary employer must not be more than what is required to make
an impact on the primary employer.
The strike by WMS employees is not protected for the following reasons:

- There was no notice given by the employees to the employers of WMS of the
commencement of the strike
- The primary strike itself is unprotected

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If a party has a right to refer the issue in dispute for arbitration or adjudication, a party may not
resort to a strike or lock-out in order to resolve the dispute. There is, however, an exception to the
rule and that is in the case of employees who want to enforce their demands in respect of
organisational rights, the LRA gives them a choice of options between arbitration and strike action.
Once a union opts for the strike route and gives notice of its intention to strike, it forfeits the right to
refer the dispute to arbitration within 12 months from the date of the notice. Since the matter had
already been sent for conciliation, MPU forfeited their right to strike. Thus, the strike is unprotected.

- Pages 283 & 286 TB

Procedural requirements for the protection of protest action:

 The action must be called by a registered trade union or federation of trade unions,
 NEDLAC must be given notice of the protest action, stating the nature and reasons for the
protest action,
 The matter giving rise to the protest actions must have been considered by NEDLAC, and
 NEDLAC must have been given at least 14 days’ notice of the intention to proceed with the
action
- Page 301 TB

An independent contractor is contracted to perform a specified task or to produce a specific result

(also referred to as the contract of work or in terms of the common law as the locatio conductio
operis).

An employee is appointed to render personal services in terms of a job description (also referred to
as the contract of service or in terms of the common law as the locatio conductio operarum).

The courts have developed five tests to distinguish between employees and independent
contractors:

1. The control test;

2. The organisation test;
3. The dominant impression test;
4. The economic capacity test; and
5. The reality test

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Control test

The test looks at the control the employer has over the work the person does, the manner in which
the work must be done, and when and where the must be done.

Organisation test

This test looks at whether the person is part and parcel of the business / organisation of the
employer. The person’s work must be integrated into the business of the employer and must not
just be an accessory to the business.

Dominant impression test

This test is favoured by the courts and considers the employment relationship as a whole, rather
than concentrating on only one factor.

Economic capacity test

In Niselow v Liberty Life the court added a so-called ‘economic capacity test’ in terms of which an
employee’s income-earning capacity is solely dedicated to the employer.

The reality test

The court in Denel (Pty) Ltd v Gerber said that when determining the true status of a worker, the
court will look at the ‘substance of thee relationship as opposed to the form thereof’.

- Page 20 – 22 TB

The following requirements must be met in order for the contract of employment to be valid:

 There must be agreement between the parties, for e.g. if an employer forces an employee to
work, it will amount to slavery. The employment contract like any other contract is created
through offer and acceptance.
 The parties further need to agree about the work the employee has to do and the
remuneration she/he will receive from the employer for that work.
 The parties to the contract must have capacity to act, for e.g. a mentally impaired person or
a minor will not be able to conclude a valid contract of employment.
 The agreement must be legally possible, for e.g. it will not be legally possible to appoint
someone as an assassin for your debt collection business.
 Performance under the agreement must be physically possible, for e.g. if the employer
appoints a personal nurse to care for her and the employer then dies, performance will no
longer be physically possible.
 If any formalities are prescribed for the formation of that particular type of contract or if the
parties themselves have agreed about certain formalities, then those formalities must be
satisfied, for e.g. the employment contract of a candidate attorney must be in writing and
registered with the Law Society within 2 months after conclusion.
- Page 49 TB

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Under the present LRA, an employee provided by a labour broker may hold the employer (labour
broker) and client jointly and severally liable if the TES contravenes:

 A collective agreement concluded in a bargaining council that regulates the terms and
conditions of employment,
 A binding arbitration award that regulates terms and conditions of employment,
 The BCEA, or
 A determination made in terms of the BCEA
- Page 39 TB

An employee is entitled to 3 days’ family responsibility leave for every 12 months worked.

"designated employer" means-

(aJ an employer who employs 50 or more employees;
( b) an employer who employs fewer that 50 employees, but has a total annual
turnover that is equal to or above the applicable annual turnover of a small
business in terms of Schedule 4 to this Act;
( c) a municipality, as referred to in Chapter 7 of the Constitution;
( d) an organ of state as defined in section 239 of the Constitution, but excluding
local spheres of government, the National Defence Force, the National
Intelligence Agency and the South African Secret Service; and
( e) an employer bound by a collective agreement in terms of section 23 or 31 of 20
the Labour Relations Act, which appoints it as a designated employer in terms
of this Act, to the extent provided for in the agreement;

‘An “unfair labour practice” means any unfair act or omission that arises between an employer and
an employee involving –

‘(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding
disputes about dismissals for a reason relating to probation) or training of an employee or relating to
the provision of benefits to an employee;’

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It is very difficult to prove that an employer acted unfairly with regard to promotion. In practice the
employee must prove an omission (a failure to act) on behalf of the employer. Disappointment as a
result of an employer’s decision does not automatically mean that the employer acted unfairly – as
was discussed in the case of Nelson Mandela Bay Municipality v Mkumatela. Promotion falls within
the managerial prerogative. The employer will probably promote the most suitable candidate after a
fair process has been followed. An employee does not have any legal entitlement to be promoted to
a higher post. In order for a promotion to be fair, an employer must act both procedurally and
substantively fair. If an employer cannot justify its decision not to promote, or if the process leading
to the promotion proves to be seriously flawed, the possibility that the employer committed an
unfair labour practice may arise.

It is important to not that the courts will only intervene in disputes about promotions if the
employer acted in bad faith, for e.g. where:

 The employer exercised its discretion inconsistently

 The reasons provided cannot be substantiated
 The decision was taken on a wrong principle
 The decision was taken in a biased manner

- Page 107 TB

The primary remedy for unfair dismissal is reinstatement which must be ordered except in the
following circumstances, where compensation will rather be awarded:

 Where the employee does not wish to be reinstated or re-employed

 Where the circumstances surrounding the dismissal are such that a continued employment
relationship would be intolerable
 Where it is not reasonably practicable for the employer to reinstate or reemploy the
employee
 Where the dismissal is unfair only because the employer did not follow a fair procedure
- Page 224 TB

The main principle is that the employer must give the employee an opportunity to be heard and to
defend her against the allegations. If that happens in a more informal manner, it will also constitute
a fair process.

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Checklist to ensure a procedurally fair dismissal

1. Did the employer conduct an investigation to determine whether there are grounds for
dismissal?
2. Did the employer notify the employee of the allegations?
3. Did the employee get reasonable time to prepare?
4. Was the employee allowed to state a case in response to the allegations?
5. Was the employee allowed the assistance of a union representative or co-employee?
6. Did the employer after the enquiry communicate the decision taken, and furnish the
employee with written notification of the decision as well as the reasons for the decision?
7. If the employee is dismissed, did the employer remind her of any rights to refer the matter
to a bargaining council or the CCMA?
- Page 202 TB

In order to succeed with a claim of constructive dismissal, the employee will have to prove the
intolerability of the working relationship. The courts have interpreted this this to mean that
resignation was a matter of last resort. There must have been no other motive for the resignation
and the employee would have continued with the employment relationship if it had not been for the
employer’s unacceptable conduct. This test is objective and the mere fact that an employee resigned
because she felt aggrieved is not sufficient. The facts of each case must be analysed in order to
determine whether the conduct by the employer was mere irritation or insult, or whether it really
made continued employment intolerable.

Courts have made it clear that the following three elements must be present to succeed with a claim
for constructive dismissal:

1. The employee must show that he has resigned

2. The employee must show that the reason for the resignation was that continued
employment became intolerable; and
3. The employee must show that it was the employer’s conduct that created the intolerable
circumstances.
- Page 178 TB

The requirements for registration of a union are set out in section 95 as follows:

 It must adopt a name or abbreviation which is not so close to that of any other union so as
to cause confusion,
 It must adopt a constitution that complies with certain requirements,
 It must have an address in South Africa, and
 It must be independent from any interference or influence be the employer
- Page 252 TB

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 A collective agreement must be in writing

 Only a registered union can be a party to a collective agreement
 A collective agreement must regulate terms and conditions of employment or any other
matter of mutual interest between a trade union and the employer or employer’s
organisations.
- Page 261

(i) Disciplinary codes and procedures are matters for joint decision-making, whereas,
(j) Job grabbing is a matter for consultation
- Page 268 TB

The common-law rule of “no work, no pay” applies to strikes and lock-outs. This rule is based on the
fact that the contract of employment is reciprocal in nature, that is, performance by the employer
(payment of salaries) depends on performance by the employees (making their services available).
The position is retained by the LRA, which provides that an employer is not obliged to remunerate
an employee for services that the employee does not render, even during a protected strike or lock-
out. There is an exception to the rule. If the employees’ remuneration includes payment in kind in
the form of accommodation, the provision of food and other basic amenities of life, the employer
many not withhold such payment in kind during a strike. However, the employees must request that
payment in kind continues. The employer may recover the monetary value of the payment in kind
from the employers after the end of the strike by way of civil proceedings instituted in the Labour
Court.

- Page 290 TB

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Requirement 1: action undertaken by the party must comply with definition of a strike:

“A strike is the partial or complete concerted refusal to work, or the retardation or obstruction of
work, by people who are or have been employed by the same employer or by different employers,
for the purposes of remedying a grievance or resolving a dispute in respect of any matter of mutual
interest between employer and employee and every reference to work in this definition includes
overtime work, whether it is voluntary or compulsory.”

Requirement 2: Procedural requirements for the protection of strikes and lock-outs in terms of
section 64.:

Compliance with section 64(1) means that:

 The issue in dispute must be referred for conciliation;

 A certificate of outcome must be issed or 30 days must have passed before the strike can
start, and
 The prescribed notice must be given to the employer in the case of a strike, and to the trade
union (or the employees if there is no union) in the case of a lock-out

Requirement 3: Prohibitions or limitations on strikes in terms of section 65

- Page 280 TB

This is a case of a secondary strike. In order for a secondary strike to be protected, the LRA sets the
following requirements:

 The primary strike itself must be protected,

 Secondary strikers must give their employer seven days’ written notice of the
commencement of the strike, and
 The harm to the secondary employer must not be more than what is required to make
an impact on the primary employer.
The strike by BB employees is not protected for the following reasons:

- There was no notice given by the employees to the employers of BB of the commencement
of the strike
- The primary strike itself is unprotected
- Pages 283 & 286 TB

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The purpose of a strike is to remedy a grievance or resolve a dispute in respect of any matter of
mutual interest between the employer and employees. The purpose of a protest action is to
promote or defend the socio-economic interests of workers.

- Page 301 TB

 Collective agreement
The LRA makes provision for a registered trade union and an employer or employers’
organisation to conclude a collective agreement that regulates organisational rights. This
means that, even if the trade union is not representative, it could have organisational rights
on which the parties agreed.
 Through membership of a bargaining council
A registered trade union that is party to a bargaining council, automatically acquires the two
rights of access to the premises and to have trade union subscriptions deducted by stop
order, in respect of all workplaces falling within the jurisdiction of the bargaining council. A
union acquires these rights irrespective of whether it is sufficiently representative or not.
 Through strike action
A minority union may strike in support of a demand for organisational rights even if it does
not meet the statutory threshold for acquiring such rights. A majority or sufficiently
representative union which chooses not to follow section 21 may also elect to rather
endeavour to obtain organisational rights through strike action. Once they have elected this
option they may not revert back to use the section 21 process.
 Through the section 21 procedure
- Page 247 TB

The doctrine of vicarious liability is regulated by the common law and not by labour legislation and
may also impact on the employment relationship. According to this doctrine, an employer is liable
for the unlawful or delictual acts of an employee performed during the course and scope of
business.

The doctrine is based on the principle that the employer has to compensate those who suffer injury
as a result of the wrongful conduct of its employee. Vicarious liability thus protects third parties. It
does not mean that the employer will not have recourse against such employee. Depending on the
circumstances, the employer can discipline the employee for misconduct and even claim repayment
in this regard.

In order for the employer to be held vicariously liable for the employee’s wrongful conduct, the
following 3 requirements must be met:

1. There must be a contract of employment (employer / employee relationship)

2. The employee must have acted in the course and scope of employment, and
3. The employee must have committed a delict (a negligent or intentional unlawful action or
omission causing a third party to suffer damages or personal injury)
- Page 47 TB

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Duties of employees:

 To render services to the employer

 To work competently and diligently
 To obey lawful and reasonable instructions
 To serve the employer’s interests and act in good faith
- Page 46 TB

A dismissal will be substantively fair if it is done for one of the following 3 reasons:

o Misconduct of an employee
o Incapacity of an employee (incapacity as far as work performance is concerned or incapacity
as a result of temporary or permanent illness/disability)
o Operational reasons of the employer (financial, technological, structural or similar needs)
It will be procedurally fair if it is done according to the process provided for by the Act.

Both substantive and procedural fairness are required for a fair dismissal.

- Page 181 TB

Where an employer dismisses a number of employees for the same or similar reasons and
subsequently offers to re-employ one or more of them, but refuses to re-employ another, this will
constitute a ‘dismissal’. This type of dismissal will not necessarily always be unfair. If an employer
retrenched employees and the financial position of the business improves, the employer may re-
employ some of the employees. It will not be unfair as long as the employer followed a fair
procedure and can justify the selection of only some of the employees for re-employment.

- Page 177

An employer may fairly dismiss an employee when it is done for operational reasons. This form of
dismissal is usually referred to as retrenchment. The LRA defines operational reasons as reasons
relating to economic needs. The court will determine if there was a reasonable basis and a
commercial rationale for retrenchment. Retrenchment should remain a last resort.

- Page 56 SG

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Operational reasons refer to technological, structural, economic and similar needs of a business. The
dismissal of half the employees by Remofile will qualify as dismissal based on the operational
reasons because there is an economic reason why the company wants to dismiss them.

- Page 60 SG

“LIFO” – Last in, first out

“FIFO” – First in, first out

The Code of Good Practice on Dismissal based on Operational Requirements acknowledges the
criterion of “LIFO” which is widely accepted as fair and objective. However, it can amount to indirect
discrimination in some instances.

The dismissal of employees will not be fair because the company has not followed the correct
procedure. The selection criterion used by the employer is also not fair since the LRA obliges an
employer to use fair and objective selection criteria such as “LIFO” & “FIFO”.

- Page 59-60 SG

Where an employee resigns because the employer made continued employment intolerable for the
employee, it will constitute a ‘dismissal’, better known as a ‘constructive dismissal’. Although the
employee terminates the contract, it is not done voluntarily. The employer’s conduct made it
impossible for the employee to continue working for the employer.

- Page 178 TB

Upon sequestration of the employer, the contract of employment is suspended for a period of 45
days. During this period the employee does not have to render services to the employer and the
employee will not receive any payment for befenits during this period. The employee may claim
compensation from the Unemployment Insurance Fund (UIF). The trustee or liquidator can decide
whether the contracts of employment should continue after the mentioned 45 days. Unless there
was an agreement of continued employment, all the suspended contracts will automatically
terminate after the date of insolvency. The employee is entitled to severance pay in terms of section
41 of the BCEA.

- Page 171 TB

The main functions of a workplace forum are:

 To promote the interests of all employees in the workplace (not just union members)
 To enhance efficiency in the workplace
 To consult on certain matters, and

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 To jointly make decisions on specific matters

- Page 267 TB

Substantive equality recognises that opportunities and patterns of behaviour towards individuals are
determined by their membership of a group and are often to their disadvantage. Affirmative action
measures are required to correct imbalances where disadvantage and inequality exist.

- Page 76 TB

 The employer exercised its discretion inconsistently,

 The reasons provided cannot be substantiated,
 The decision was taken on a wrong principle, or
 The decision was taken in a biased manner.
- Page 108 TB

o Any disciplinary action

o Dismissal, suspension, demotion, harassment or intimidation
o Being transferred against the employee’s will
o Refusal of a transfer or promotion
o Subjection to a term of employment which is altered or kept altered to the employee’s
disadvantage
o Subjection to a term of retirement which is altered or kept altered to the employee’s
disadvantage
o Refusal of a reference or being provided with an adverse reference
o Denial of appointment to any position or office
o Being threatened with any of these actions
o Being otherwise adversely affected in respect of employment, employment opportunities
and work security
- Page 116 TB

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A protected disclosure is the disclosure of information to specific persons or bodies such as legal
advisors, employers, members of Cabinet, the Public Protector or the Auditor – General. It is
important that factual information must be disclosed: suspicion, rumours and personal opinion do
not constitute ‘factual information’. The employee must make the disclosure in good faith and
reasonably believe that the information disclosed, is substantially true.

- Page 117 TB

 Employees provided by a temporary employment service or so-called temporary employees

 Fixed-term employees
 Part-time employees
- Page 26 TB

Requirement 1: action undertaken by the party must comply with definition of a strike:

It is important that the actions taken by employees and employers fall within the definitions of a
strike as defined by section 213 of the LRA. Action that does not amount to a strike will not enjoy
protection in terms of the LRA.

“A strike is the partial or complete concerted refusal to work, or the retardation or obstruction of
work, by people who are or have been employed by the same employer or by different employers,
for the purposes of remedying a grievance or resolving a dispute in respect of any matter of mutual
interest between employer and employee and every reference to work in this definition includes
overtime work, whether it is voluntary or compulsory.”

Requirement 2: Procedural requirements for the protection of strikes and lock-outs in terms of
section 64.:

Compliance with section 64(1) means that:

 The issue in dispute must be referred for conciliation;

 A certificate of outcome must be issed or 30 days must have passed before the strike can
start, and
 The prescribed notice must be given to the employer in the case of a strike, and to the trade
union (or the employees if there is no union) in the case of a lock-out

Requirement 3: Prohibitions or limitations on strikes in terms of section 65

In certain circumstances employees may not strike at all. That would be where section 65 prohibits
strikes and lock-outs.

- Page 280 TB

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A picket must be peaceful in order to enjoy protection. Intimidation and violent conduct will result in
civil and criminal liability. Picketers may:

 Carry placards
 Chant slogans
 Sing, and
 Dance
- Page 297 TB

An essential service means a service of which the interruption endangers the life, personal safety or
health of the whole or any part of the population and also includes the Parliamentary Service and
the South African Police Service.

A maintenance service is a service of which the interruption of that service has the effect of material,
physical destruction to any working area, plant or machinery.

- Page 284 TB

(1) "Dismissal" means that-

(a) an employer has terminated a contract of employment with or without notice;

(b) an employee reasonably expected the employer to renew a fixed term contract of
employment on the same or similar terms but the employer offered to renew it
on less favourable terms, or did not renew it;

(c) an employer refused to allow an employee to resume work after she-

(i) took maternity leave in terms of any law, collective agreement or her
contract of employment; or

(ii) was absent from work for up to four weeks before the expected date, and
up to eight weeks after the actual date, of the birth of her child;

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(d) an employer who dismissed a number of employees for the same or similar
reasons has offered to re-employ one or more of them but has refused to re-
employ another; or

(e) an employee terminated a contract of employment with or without notice

because the employer made continued employment intolerable for the
employee.

(f) an employee terminated a contract of employment with or without notice

because the new employer, after a transfer in terms of section 197 or section
197A, provided the employee with conditions or circumstances at work that are
substantially less favourable to the employee than those provided by the old
employer.

Absent without leave:

- If the employee does not want to terminate the employment contract but stays away from
work without leave.
- It warrants dismissal if the period of absence is unreasonably long.
- If the employee returns after a few days with a letter to show that he had a reason for the
absence, e.g. being hospitalised or imprisoned, a dismissal will not be appropriate.
Desertion:

- If the employee, without resigning, stays away from work with the intention of terminating
the contract of employment.
- The employer must terminate the contract of employment by holding a disciplinary hearing
in the absence of the employee.
- Even if the employee returns after dismissal, the employer must give him an opportunity to
state his case.
- Page 198 TB

‘‘foreign national’’ means an individual who is not a South African citizen or does not have a
permanent residence permit issued in terms of the Immigration Act

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The Bill of Rights, contained within the Constitution of the Republic of South Africa 1,
enshrines the rights of all the people in our country. These rights include, but are not limited
to, the right to human dignity, equality and privacy. Lemekwane has a Constitutional right to
privacy and therefore had no duty to disclose his HIV status to SG. Furthermore, according to
section 6 of the Employment Equity Act 2, no person may unfairly discriminate, directly or
indirectly, against an employee on the ground of his/her HIV status.

If a dismissal is based on unfair discrimination against an employee whether it is directly or

indirectly on any arbitrary ground, the dismissal is automatically unfair. In Lemekwane’s
case, he was dismissed based on unfair discrimination because of his HIV status. In Allpass v
Mooikloof Estates (Pty) Ltd t/a Mooikloof Equestrian Centre 3 an employee was dismissed
after disclosing he had several illnesses including HIV. The court found that the employee
was automatically unfairly dismissed since the real reason for dismissal was because of the
employee’s HIV status.

There are various remedies available to Lemekwane in terms of the Constitution, the Labour
Relations Act and the Employment Equity Act.

Since Lemekwane’s Constitutional rights such as his right to privacy and human dignity have
been infringed, the Constitution provides that any competent court may be approached to
provide relief4.

1
Constitution of the Republic of South Africa, 1996
2
Employment Equity Act 55 of 1998 (EEA)
3
Allpass v Mooikloof Estates (Pty) Ltd t/a Mooikloof Equestrian Centre (2011) 32 ILJ 1637 (LC)
4
Section 38

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One form of dispute resolution offered within the LRA is the Commission for Conciliation,
Mediation and Arbitration (CCMA). The function of the Commission is to attempt to resolve
disputes. The Employment Equity Act allows for the referral of disputes to the CCMA. The
LRA also provides for the appointment of an arbitrator to conduct a pre-dismissal inquiry into
the conduct of or capacity of an employee.

Dispute resolution for an automatically unfair dismissal follows the following sequence 5:

1. Employee is dismissed
2. The employee must refer the dispute for conciliation to CCMA / bargaining council
within 30 days from the date of dismissal
3. Either the conciliation is successful and the matter is resolved, or the matter has not
been successfully resolved
4. If the matter has not been resolved, the matter is then referred for adjudication to the
Labour Court
5. The Labour Court will then make a ruling on the matter - In terms of section 193 of
the LRA, if the Labour Court or arbitrator finds the dismissal to be unfair, they may
order the employer to reinstate or re-employ the employee or the employer could be
ordered to pay the employee compensation.
The employee may then appeal to the Labour Appeal Court.

 There must be agreement between the parties, for e.g. if an employer forces an employee to
work, it will amount to slavery. The employment contract like any other contract is created
through offer and acceptance. The contract arises when the parties agree about the
essential terms of the contract. If an employee, for e.g. refuses to accept the employer’s
terms would mean that no agreement and no employment relationship is established.
 The parties further need to agree about the work the employee has to do and the
remuneration he will receive from the employer for that work.
 The parties to the contract must have capacity to act, for e.g. a mentally impaired person or
a minor will not be able to conclude a valid contract of employment.
 The agreement must be legally possible, for e.g. it will not be legally possible to appoint
someone as an assassin for your debt collection business.

5
LABOUR LAW RULES (M McGregor & A Dekker) 3rd Edition [Siber Ink]

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 Performance under the agreement must be physically possible, for e.g. if the employer
appoints a personal nurse to care for him and the employer then dies, performance will no
longer be physically possible.
 If any formalities are prescribed for the formation of that particular type of contract or if the
parties themselves have agreed about certain formalities, then those formalities must be
satisfied, for e.g. the employment contract of a candidate attorney must be in writing and
registered with the Law Society within two months after conclusion.
- Page 49 TB

Five non-variable core terms that cannot be changed:

1. Maximum working hours

2. Provisions relating to night work
3. Not less than two weeks annual leave
4. For months maternity leave
5. Provisions relating to sick leave
- Page 69 TB

1. Access to the workplace

2. Stop order facilities
3. Disclosure of information
4. Election of shop stewards and leave for them to perform their duties
5. Leave for union office bearers
- Page 245 TB
Entitlement of unions to organisational rights depends on the level of representation of the trade
union in the workplace, which can be either majority representation or sufficient representation. If a
union represents the majority of workers, it will have access to all organisational rights. If the union
is sufficiently representative, it will have access only to certain organisational rights.

 Collective agreement
The LRA makes provision for a registered trade union and an employer or employers’
organisation to conclude a collective agreement that regulates organisational rights. This
means that, even if the trade union is not representative, it could have organisational rights
on which the parties agreed.
 Through membership of a bargaining council
A registered trade union that is party to a bargaining council, automatically acquires the two
rights of access to the premises and to have trade union subscriptions deducted by stop
order, in respect of all workplaces falling within the jurisdiction of the bargaining council. A
union acquires these rights irrespective of whether it is sufficiently representative or not.
 Through strike action

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A minority union may strike in support of a demand for organisational rights even if it does
not meet the statutory threshold for acquiring such rights. A majority or sufficiently
representative union which chooses not to follow section 21 may also elect to rather
endeavour to obtain organisational rights through strike action. Once they have elected this
option they may not revert back to use the section 21 process.
 Through the section 21 procedure
- Page 247 TB

Closed-shop agreements pose more of an infringement on an employee’s right to freedom of

association and are regulated by section 26 as follows:

 They are concluded by a majority union and an employer or an employers’ organisation.

 They are concluded by way of a collective agreement.
 The employees to be covered by the agreement must have a ballot before a closed-shop
agreement is concluded.
 Two-thirds of the employees who voted, must vote in favour of the agreement.
 Employees who were already employed when the closed-shop agreement came into effect,
and conscientious objectors may not be dismissed for refusing to join the union which is a
party to a closed-shop agreement.
 The employer must deduct the agreed subscription fees from the employees identified in
the agreement.
 Union subscriptions fees may not be used for political affiliation; they may be used only to
advance the socioeconomic interests of the employees.
- Page 242 TB

The employer cannot be expected to disclose information which:

 Is not available
 Is not relevant to the issue under discussion
 Is legally privileged
 Could harm the employer’s business interests if disclosed
 Is private personal information relating to an employee
- Page 245 TB

 A collective agreement must be in writing

 Only a registered union can be a party to a collective agreement
 A collective agreement must regulate terms and conditions of employment or any other
matter of mutual interest between a trade union and the employer or employer’s
organisations.

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- Page 261

i. Strike – to remedy a grievance or resolve any matter of mutual interest between employees and
employers.
ii. Picketing – to peacefully demonstrate support for any protected strike or to oppose any lock-
out.
iii. Protest action – to promote or defend the socioeconomic interests of the workers.

- Page 274 TB

Interdict

The Labour Court has jurisdiction to grant an interdict or an order restraining any person from
participating in or acting in contemplation or furtherance of an unprotected strike.

Compensation

The Labour Court may order the payment of ‘just and equitable compensation’ to either employees
or employers who suffered any loss caused by an unprotected strike or lock-out. This is in line with
African practice: if a person who caused damage to another is found guilty in a Kgoro, that person
has to pay damages or compensate the victim for the damages caused. This is also in line with the
ubuntu principle of fairness, which is entrenched in the Constitution.

Dismissal of strikers

Strikers who participate in an unprotected strike, or who commit certain forms of conduct in
contemplation or furtherance of an unprotected strike, may be dismissed. Participation in
unprotected action will be the will be the reason for such a dismissal.

- Page 81 SG

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The parties to a dispute need not follow the prescribed procedural requirements in terms of section
64(1) under the following circumstances:

 If the parties to the dispute are members of a bargaining council and the dispute was dealt
with in terms of the procedure set by that council’s constitution.
 If the parties concluded a collective agreement with prescribed procedures to be followed
before they strike or lock-out, and they have complied with that agreement.
 If an employer institutes a lock-out in response to an unprotected strike.
 If the employees strike in response to an unprotected lock-out.
 If a strike takes place after the employer has unilaterally changed the terms and conditions
of employment, and the employee fails to rectify this despite prior warning.
- Page 281 TB

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MRL3702

NOTES

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Chapter 2 Exclusive Protection for employees in terms of legislation

Who is an employee?
The primary aim of the LRA is to promote sound relations between employers and employees –
workers falling outside the LRA do not obtain direct protection. The definition of an employee is
generally;
 Any person, excluding an independent contractor, who works for another person or for the
State and who receives or is entitled to receive any remuneration
 Any other person who in any manner assists in carrying on or conducting the business of an
employer
The first part of the definition includes domestic and farm workers.

Guidelines to distinguish between employees and independent contractors

Three tests;
 Control – control over the type of work the person does, the manner and when it must be
done
 Organisation test – is the person part and parcel of the business and not just an accessory
 Dominant impression test – favoured by the courts and considers the employment
relationship as a whole
S200A of the LRA provides a rebuttal presumption of an employment relationship between the
parties.
The Code also provides a comparison between an employee and independent contractor as follows;

Employee Independent contractor

Object of the contract is to render personal Object of the contract is to produce a specified
services result or perform specific work
Employee must perform the services personally Can perform through others
Employer may choose when to use services Must perform work within period fixed by
contract
Contract terminates on death of employee Contract need not terminate on death
Contract terminates on expiry of period of Contract terminates on completion of work or
service production of desired result

Categories of employees
Most common categories of employees are;
Type of employee Description
Permanent employee Person employed for indefinite period
Temporary / Contract / fixed term Employed for a specified period or contract
Casual  Works for the same employer but not more
than 3 days per week
 Can be either temporary or permanent
Part time  Person works only at certain times
 Works on certain days but limited to three
days per week
 Can be either temporary or permanent

Note the definition of employee does not distinguish between the categories.

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Unprotected workers
Illegal workers
In terms of the common law an illegal contract is void or voidable but in terms of the Constitution
and the LRA provision is made for illegal workers. (see Kylie v CCMA and others which was a
decision overturned by the Labour Appeal Court). Similarly in the Discovery case, the Court has
found even though workers may not be protected by the LRA they are protected by the Constitution.

Thus if a person is not protected by the LRA they can obtain protection via the Constitution in;
 S23 – everyone has the right to fair labour practices
 S10 – everyone has the right to dignity

Statutory exclusions of workers

Specific exclusions from the definition of employee in the LRA are;
 NIA, SA secret service and SA National academy of intelligence
 Staff of Comsec
 Members of the NDF

Who is an employer?
The definition of employer is not provided for in any legislation and must be looked at in terms of
the definition of an employee. An employer may thus be defined as;
 Any person or body who employs any person in exchange for remuneration
 Any person who permits any person to assist him in conducting his business
This includes the issue of labour brokers who generate other concerns such as;
 Difficult to identify the employer / employee relationship
 Employee ends up with reduced salary as the broker extracts some rent for their services
 The protection for unfair dismissal is not shared between the broker and the client

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Chapter 3 The impact of the common law on the contract of employment

1. Introduction
The fact that parties are in an employment relationship has consequences notably as a result of
labour legislation and the impact of the common law relating to basic rights and duties of employees
and employers. Both parties have rights and duties that, even though may not be expressly stated in
the contract of employment, flow from the common law.

2. Duties of the employer and the employee

a. Duties of employers

To remunerate the employee

The primary duty is to pay the employee and then if he does not work then no pay is due. The BCEA
does though provide for paid leave in certain circumstance but principle of no work / no pay still
applies.

To provide work
The employer is generally not required to provide the employee with work unless the employee’s
salary is commission based or where the employer’s success is dependent on the performance of
certain duties on a regular basis – such as acting.

To provide safe working conditions

This includes the provision of protective equipment and the exercise of proper supervision. It can
also extend to protection of harassment by the employer or colleagues in terms of the EEA.
It also encompasses the duty of an employer to a compensation fund should the employee be
injured.

To deal fairly with the employee

This is captured by the constitutional duty to fair labour practices. The LRA also protects employees
against unfair treatment during the time of employment and unfair dismissal.

Duties of employees

To render services to the employer

The primary duty – to render labour potential to the employer

To work competently and diligently

When the employee enters the contract, he/she guarantees that they will be capable of doing the
work

To obey lawful and reasonable instructions

The employee is under the control of the employer and non compliance with this rule is
subordination and breach of contract unless the order is outside the scope of the employment
contract

To serve the employers interests and act in good faith

The employment relationship is built on trust and is an implicit term in the contract

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3. Doctrine of Vicarious Liability

This provides that an employer is liable for the unlawful or delictual acts of an employee performed
during the course of business. This is regulated by the common law and not legislation. This
doctrine protects third parties and does not mean that the employer will not have later recourse
against the employee. In order for the employer to be held liable, the following three requirements
must be met;
 There must be a contract of employment
 The employee must have acted in the course and scope of employment
 The employee must have commissioned a delict.

Bezuidenhout v Eskom where the employee had a truck but was forbidden to give lifts without
authority. The court found this prescription placed a limitation on the contract and thus exonerated
Eskom from vicarious liability in a case where Eskom was sued for injuries caused to a hitch hiker
given a lift by the driver and subsequently involved in an accident.

4. Impact of the contract of employment on the employment relationship

Introduction
The contract of employment contains the terms and conditions but these can be changed under
certain conditions.

General contact principles

The contract must contain all the requirements of the law for the conclusion of a valid contract,
namely;
 There must be an agreement between the parties
 The parties must have capacity to act
 The agreement must be lawful and legally possible
 Performance under the agreement must be possible
 If any formalities are prescribed, these formalities must be satisfied e.g. a candidate
attorney must be registered with the Law Society

The contract of employment need not be in writing and its terms may be express or tacit. However
there are certain terms which the employer is obliged to provide in writing to the employee in terms
of the BCEA which include;
 The full name and address of the employer
 The name and occupation of the employee
 The place of work
 The date of commencement, ordinary days of work and hours of work
 The employee’s wage, overtime rate, other cash payments due, payment in kind and value
thereof and the frequency of remuneration as well as deductions
 The leave entitlement
 Period of notice required
 And other documents which may form part of the employment contract
The employer must keep these for three years after termination. The employer is obliged to display
a statement of the employee’s rights in terms of the BCEA at the place of work.

Remedies for breach

If the parties do not perform in terms of the contract this is breach in terms of the common law. In
the event of breach the parties may terminate or compel the defaulting party to perform.

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The LRA has largely replaced the processes for breach provided by contract law. In terms of the LRA,
a breach by the employer will probably amount to an unfair labour practice. If an employee
breaches then it amounts to misconduct. Note the High Court has jurisdiction for an employee
claiming breach (not the Labour Court) and only common law remedies are available. Such a
termination deals with lawfulness and not fairness

Restraint of trade
There to protect the interests of the employer. In determining whether a restraint of trade is
enforceable, the court will balance the public interest (requiring parties to comply with the
contractual obligations even if unreasonable or unfair) against the right of all persons to be
permitted to engage in commerce or the profession of their own choice. Questions that should be
considered include;
 Is there an interest deserving protection at the termination of the agreement?
 Is that interest being prejudiced?
 If so, how does the interest weigh up against the interests of the other party not to work?
 Are there other factors requiring the restraint to operate or be disallowed?
 If the restraint wider than necessary?

Changes to contractual terms and conditions of employment

Even though the terms of the employment relationship are bound by contract, there are also other
statutory and collective agreements at play.
An employer may not unilaterally change the terms and conditions and it can only de done as
follows;
 By agreement between the employer and employees in methods prescribed in the contract
 By means of a collective agreement between the employer and trade union
 By operation of law e.g. the BCEA
 Through a sectoral determination by the Minister.

5. Customs and practices in the workplace

In addition to contract and labour law, customs will also have an impact e.g. given an afternoon off
per month.

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Chapter 4 Basic Conditions of Employment Act

1. Introduction

The Act lays down the minimum terms and conditions for employers from which, as a general rule,
employers may depart but only to improve these. Employers and employees may thus not contract
out of the BCEA but this can happen in limited circumstances.

A basic condition of employment in the BCEA constitutes a term of any contract of employment
except where;
 Any other law provides a term more favourable to the employee
 The contract provides a term more favourable to the employee
 The basic condition has been replaced, varied or excluded in terms of the Act

Scope of Application
The BCEA gives effect to the Constitutional right to fair labour practices, enforcing basic conditions
of employment and regulating the variation of such conditions. The BCEA is applicable to almost all
employees except;
 NIA, SA secret service and SA National academy of intelligence
 Unpaid volunteers working for charitable organisations
 Directors and staff of Comsec
 People undergoing vocational training
 People employed on vessels at sea
 Independent contractors
In addition there are partial exclusions – people excluded from certain chapters of the Act

Minimum conditions of employment

3.1 Working time

Chapter 2 of the BCEA regulates working time but is not applicable to senior managers;

Max 45 per week;  Employers endeavour to reduce time to 40

 5 days per week < 9 hrs /d hrs/w
 6 days per week < 8 hrs/d  Can be extended by 15 mins/w but not more
than 2 hrs per week
One hour meal interval for 5 hours continuous Can be reduced by agreement to 30 minutes
work
Overtime - max 10 hrs /w but can extend to 15 Overtime only by agreement;
by collective agreement  Pay 1 ½ times normal or time off
 O/T may not be more than 12 hrs on any day
Sunday and public holiday rates are at double
and if the employee normally works on a
Sunday this is at 1 ½ times
For night work ; Night work is after 6 pm and before 6 am
 allowance applies Night work can only be done in terms of an
 reduced hours of work agreement
 be provided with transport to and from
place of residence

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Employee is entitled to;

 Daily rest period of 12 hours between
working periods
 A weekly rest period of 36 hours
Parties may agree the employees can work up Averaging of working and overtime hours is
to 12 hours in a day without overtime provided; allowed for peak periods in certain sectors due
 The employee does not do more than 45 to their cyclicality
hours per week
 More than 10 hours overtime in the week
Ordinary hours and overtime can be averaged
over a four month period in terms of a
collective agreement

3.2 Leave
Chapter 3 of the BCEA regulates leave but is not applicable to employees who work less than 24
hours a month.
Minimum of 21 consecutive calendar days paid
leave excluding public holidays
Maternity leave – 4 consecutive months This is unpaid leave and the employee must
 Commence from 4 weeks before birth or notify the employer in writing
 On a date where deemed necessary either
for employees’ or the unborn’s health
Entitled to 3 days family responsibility leave Only applicable to employees who have worked
 When child is sick longer than 4 months and who work at least 4
 In the event of the death of the days a week.
employee’s spouse, partner, parent, child No provision in the event of the death of an in-
etc law
Six weeks paid sick leave in every three yearly
cycle. If absent longer than two days a sick note
is required from a doctor

3.3 Other matters

a. Wages
Neither the BCEA nor any other law stipulates minimum wages for employees. However these are
determined in collective agreements and ministerial and sectoral determinations. Employees must
be paid in Rands, weekly, fortnightly or monthly in cash, cheque or direct deposit.

Notice periods
BCEA provides for minimum notice periods in the event that the contract does not make provision
therefore;
 One week if employed for less than 6 months
 Two weeks if more than 6 months but less than a year
 Four weeks if more than a year or a farm worker or domestic employed for more than 6
months
Notice can be reduced to two weeks by collective agreement. Alternatively an employer may pay
out an employee salary equivalent to the notice period.

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Severance Pay
Dismissal based on operational requirements means payment of one week per year’s employment.
But an employee who unreasonably refuses an offer of alternative employment is not entitled to
severance pay.

Certificate of service
An employer is required to supply an employee with a certificate of service when employment is
ended.

Children and forced labour

The BCEA prohibits the employment of children under 15. However children less than 15 can
participate in sporting, advertising and cultural events provided that;
 Nourishment is provided
 Pay directly to parents or guardian
 Space set aside for rest and play
 Maximum hours are stipulated (four > 10 yrs and three < 10 years) as are rest periods after 2
hours continuous work for those > 10 and 1.5 hrs for those <10 years
 Safe transport to be provided between home and workplace

Enforcement of the BCEA

5.1 The Courts

Labour court has concurrent jurisdiction with civil courts with the former having wide powers
including compliance orders and the issuing of fines

5.2 Inspectors
Provision is made for inspectors who must monitor and enforce compliance. Inspectors are allowed
to;
 Enter workplaces
 Question employers / employees
 Inspect documents
 Obtain written undertakings from an employer in default to comply and issue a compliance
order if the employer refuses, else recourse may be obtained from Labour Court for
compliance.

Variation of Basic Conditions

The BCEA allows for some terms and conditions to be varied except for core terms which include;
 Maximum working hours
 Provisions relating to night work
 Provisions relating to sick leave
 4 months maternity leave
 Not less than 2 weeks annual leave
Terms can be varied by way of the following means;

6.1 Variation by way of collective agreements

A collective agreement may change conditions of work provided it is not in conflict with the BCEA

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6.2 Variation by way of Ministerial determination

This replaces or excludes basic minimum conditions in respect of any category of employees or
employers but does not set minimum wages. In general the replacement must be more favourable
to employees and these determinations may thus relate to;
 Ordinary hours of work
 Overtime, daily and weekly rest periods
 Annual leave
 Meal intervals
Typically these determinations relate to small businesses, the welfare sector and special public
works programmes

6.3 Variation by way of sectoral determination

Such determinations normally apply to minimum wages but can include other conditions of
employment and are made after an investigation by the DG of the DoL at the initiative of the
Minister or requested from an employee’s or employer’s association.
The terms must on the whole be more favourable to employees than required by the BCEA. It may
vary ordinary hours of work if;
 The determinations has been agreed to in a collective agreement
 The operational requirements of the sector requires this
 The majority of members are not members of a trade union
Examples for sectoral determination include the hospitality industry, taxis, security firms, domestics
or areas in which unionisation is difficult to achieve

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Chapter 5 Employment Equity Act

1. Introduction
Equality embraced only in the 1990s under the new constitutional order in S9, specifically 9(2) which
provides that legislative and other methods designed to protect or advance persons may be taken.
Furthermore 9 (3) and 9(4) are anti-discriminatory clauses

Basic Terminology
a. Formal and Substantive equality
 Formal equality – S9(3) and 9(4): focuses on protecting individuals against discrimination.
Views individual performance as the only factors relevant for achieving success
 Substantive equality 9(2) – recognises opportunities are determined by an individual’s status
as a member of a group. Prohibition on unfair discrimination is insufficient to achieve true
equality and hence affirmative action measures are required

Differentiation and discrimination

Discrimination is a particular form of differentiation made on unlawful grounds even if there is not
the intention to discriminate.

Direct and indirect discrimination

Direct is easy to pick up – someone is treated differently because of a characteristic e.g. gender.
Indirect discrimination occurs when criteria that appear to be neutral negatively affects a certain
group disproportionately. Unless the criterion used can be justified it will amount to discrimination.

Specified and unspecified grounds for discrimination

The EEA prohibits unfair discrimination on a non-exhaustive list of 19 grounds – implying other
reasons can exist. Prohibited grounds are the same as the Constitution but also include family
responsibility, HIV status and political opinion. The commonality in the list is the potential to
demean people and the court will use dignity as a measure to determine whether the unspecified
ground has the potential to form the basis of discrimination.

Purposes of the EEA

The EEA applies to all employees as far as discrimination is concerned but where Affirmative action
is involved it does not apply to;
 SANDF, NIA, SA secret service and SA National academy of intelligence
 Directors and staff of Comsec
The EEA provides the foundation for affirmative action and non-discrimination in employment law.

First Purpose – the prohibition of unfair discrimination

a. Establishing unfair discrimination
Section 6(1) provides that no person may unfairly discriminate against an employee. If the latter
wished to pursue a case then this consists of three steps;
 Establish a factual foundation and grounds for the alleged differentiation which lays the
basis of the claim
 Establish a link between the differentiation and the alleged grounds – if a link is
established the differentiation become discrimination and presumed to be unfair

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 The employer is provided that the alleged discrimination was fair and justified

Justification grounds for discrimination

S6(2) provides for two grounds for unfair discrimination;
 Affirmative action –measures have to be applied by designated employers to ensure that
suitably qualified people from designated groups have equal employment opportunities
and are equitably represented in all occupational categories and levels
Designated people Designated employers
 Blacks  Larger enterprises with > 50
 Women people
 People with disabilities  Smaller enterprises but with a
turnover as defined
 Municipalities
 Organs of state (ACSA, SANRAL etc)
 Employers that are designated in
terms of a collective agreement

 Inherent requirements of the job – if the job has an inherent requirement for a person
with a particular attribute then that will not be discrimination

Other specific forms of discrimination prohibited

 Harassment as unfair discrimination – any harassment is deemed unfair although the
term is not defined. Sexual harassment is the most common form and conduct could be
physical, verbal and non-physical. In terms of the Code sexual harassment can be
conduct that is;
o Of a sexual nature that is unwelcome and violates the rights of an employee
o Constitutes a barrier to equity in the workplace
o Action based on sex and/or gender and / or orientation whether unwelcome or
not
Forms of sexual harassment can be sexual favouritism, quid pro quo harassment and victimisation.
A claim can be found on three legal bases; EEA, LRA and vicarious liability. The EEA requires the
employee to bring it to the attention of the employer who must consult all relevant parties to
eliminate such conduct. The employer will be deemed liable for contravention if he did not follow
the procedure and cannot prove that it did all that was reasonably practical to do to ensure that an
employee would not contravene the EEA. The Code: Sexual harassment stipulates the following;
o It is a form of unfair discrimination
o It is not permitted or condoned
o Formal or informal procedures may be used in a sensitive, efficient and effective
way
o Confidentiality is of utmost importance
o It is a disciplinary offence to retaliate against a complainant
o Disciplinary actions may vary from warning to dismissal depending on the
severity of the offence
 Testing employees and applicants for employment – The EEA regulates testing in the
workplace (including psychological and similar assessments) and distinguishes medical
testing in general and HIV testing in particular. Testing does not in itself constitute
discrimination but the manner in which it is carried out may well be.
o Medical testing – medical testing is prohibited unless legislation permits or
requires it or is justified based on inherent job requirements, conditions, policy
etc.

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o Psychological testing – prohibited unless it is scientifically verifiable, can be fairly

applied to all and is not biased against an employee or group
o HIV testing – prohibited unless found justifiable by the Labour Court. The Act
does not stipulate the grounds for justification but prescribes only the
conditions that the court can impose when it grants an order. In Joy Mining v
NUMSA the following factors were stipulated under which it can be allowed;
 To prevent unfair discrimination
 If the employer required statistics to allow pro-active intervention plans
for contingencies, training, medical aid, training and awareness
programs
 If medical facts indicated the need
 If employment conditions required testing
 If social policy required testing
 If the inherent requirements of the job needed it
 If particular categories of employees / job needed testing

Equal Pay for equal work or work of equal value

This is not expressly regulated but the Labour Court has held that remuneration is an employment
policy or practice. Differential pay for the same work based on a specified or unspecified ground
constitutes less favourable treatment and hence any claim for equal pay for work (or work of equal
value) that is the same or similar can be brought in terms of the EEA.

Resolution of unfair discrimination disputes

A dispute must be referred to the CCMA within 6 months after the alleged discrimination occurred.
The CCMA must be satisfied that reasonable attempts were made to resolve the dispute prior to
referral. If conciliation is unsuccessful, the dispute may then go to the Labour Court unless the
parties agree to arbitration.

Second Purpose of the EEA – Affirmative Action

a. Outline of affirmative action
Chapter III addresses AA, which is to redress past disadvantages and achieve employment equity. It
is defined as
‘..designed to ensure that suitable qualified people from designated groups have equal employment
opportunities and are equitably represented in all occupational categories and levels in the
workforce of a designated employer”
Note that the measures must be designed to attain employment equity. Furthermore they must be
applied fairly and rationally implying that when the goal is reached, appointments and promotions
based on AA will be discriminatory. The CC has held that AA measures that properly fall within the
requirements of the Constitution are presumed not be fair and to be rational it must;
 Target people or categories of people who have been disadvantaged
 Protect or advance such people or categories of people
 Promote the achievement of equality
Only AA measures with reason and designed in accordance with the EEA are thus acceptable.

The contents of affirmative action

AA measures must be designed to;
 Identify and eliminate employment barriers affecting those from designated groups
 Further diversity in the workplace
 Reasonably accommodate those from designated groups to enable them to have access
to and advancement in employment

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 Ensure equitable representation of suitably qualified people from designated groups

 Retain and develop these people
 Implement appropriate training methods including skills development
Measures implemented may include preferential treatment (such as targeted recruitment) but not
quotas. Furthermore the EEA does not require designated employers to implement decisions or
practices that constitute a barrier to the prospective or continued employment or advancement of
those from non designated groups.

Designated employers
All such employers must implement AA measures to achieve employment equity and has specific
duties in designing a plan which include;
 Consult with representative trade unions or their representatives, employees across all
occupational categories as well as those from non designated groups
 Disclose relevant information to the consulting parties to allow for effective consultation
 Collect and analyse information on policies and procedures in order to identify barriers
that adversely affect those from designated groups
 Prepare and implement an employment equity plan including:
o Objectives to be reached
o Numerical goals under representation
o Strategies and timetables
o Duration of the plan
o Procedures to monitor and evaluate the implementation of the plan
o People in the workforce responsible for monitoring and implementation
 Reports to be made annually to the DG of the DoL on progress – annually for companies
> 150 employees, bi-annually for less
Other requirements include providing a copy of the plan to employees, submitting a statement to
the ECC on income distribution with a view to reducing disproportionate levels of income. Failure to
comply may result in fines or refusal of state tenders.

Beneficiaries of AA
 Designated groups – blacks, coloured, Indians, women and people with disabilities. Even
though the Act is silent on nationality, the regulations stipulate that they must be South
African. Note personal past disadvantage was not a requirement only membership of a
disadvantaged group. The courts have also established the notion of degrees of
disadvantage in the implementation of AA programs in Fourie v Provincial Commissioner of
SAPS. The Court suggested the following needs to be taken into account, SA history,
apartheid being designed to favour whites over blacks, imbalance, blacks took the brunt of
apartheid and the objectives of the EEA. It has subsequently being argued that the racial
basis for redress should be substituted for a class basis since anti-poverty measures are
more acceptable.

The meaning of suitably qualified

In terms of the Act, suitably qualified depends on formal qualifications, prior learning, relevant
experience and capacity to acquire the ability to do the work within a reasonable time period. An
employer needs to take these factors into account when assessing suitability and the employer may
not discriminate solely on the basis of a person’s lack of relevant experience

Monitoring and enforcement of AA

Chapter V provides for both informal and formal ways of enforcement.
 Employees and trade unions may bring contraventions to the attention of the employer,
trade union, inspector, DG or Commission for Employment Equity

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 The Act is also enforced by labour inspectors by; obtaining written undertakings from
employers that they will comply, issuing compliance orders, requesting DG review and by
referring cases of persistent non-compliance to the Labour Court. The latter can issue
compliance orders and impose fines. The CEE on the other hand provides a watchdog role,
reporting annually to the Minister on progress.

When measuring compliance a number of factors need to be taken into account;

o The extent to which suitably qualified people are equitably represented with
regards;
 The demographic profile regionally and nationally
 Pool of suitably qualified people which the employer may reasonably expect
to appoint or promote
 Present and anticipated economic and financial factors
 Employer’s present and planned vacancies in the various categories and
levels
o The employers labour turnover
o Progress made in implementing employment equity compared to its peers in the
same sector
o Reasonable efforts by the employer to implement its plan
o The extent to which an employee has made progress in eliminating employment
barriers

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Chapter 6 Protection against unfair labour practices under the LRA

1. Introduction
A dispute concerning an ulp is a dispute of right whereas disputes of interest concern new rights.
The latter are resolved by industrial action, the former by invoking aspects of the LRA.

The LRA
The Constitution provides the right to protection against an unfair labour practice within the context
of the employment relationship. The Constitutional provisions;
 Are wide, protecting everyone unlike the LRA who protects specific persons defined
 Are all encompassing whereas the LRA defines specific unfair practices
 An infringement of the right in terms of the constitution is taken with respect to the
surrounding circumstances whereas in terms of the LRA only an employer can commit an
ulp.
S 185 (b) of the LRA provides protection for an employee not to be subject to an ulp. S186 (2) gives
content thereto.

Listed Unfair Labour Practices

Section 186(2) (a) – unfair conduct by the employer relating to promotion, demotion, probation or
training or the provision of benefits

a. The unfair conduct of an employer relating to promotion S 186(2) (a)

Promotion is a managerial prerogative and no employee has a legal entitlement thereto. An
employer is required to conduct itself procedurally and substantively in its decision to promote or
not and failure to do so could be viewed as seriously flawed. The courts normally only intervene if
the decision was taken in bad faith and it must be shown that;
 The employer exercised it discretion capriciously
 Reasons could not be substantiated
 The decision was taken on a wrong principle, or
 The decision was biased

The unfair conduct of an employer relating to demotion S 186(2) (a)

Demotion means inter alia; transfer to a lower level, loss of salary, reduction in status, loss of
benefits. Various cases relating to the transfer of employees which in effect led to a loss in status or
benefits have being found to constitute an ulp.
A demotion that arises for operational reasons (e.g. restructuring) is permissible as long as it is done
in accordance with fair procedure – likewise when demotion is made as a disciplinary measure.

The unfair conduct of an employer relating to probation S 186(2) (a)

Probation is governed by the Code which requires that it should be of a pre-determined period and
of reasonable duration taking into account the requirements of the job and the time taken to
evaluate the employee’s suitability. In terms of the code the employer is entitled to; extend the
probationary period (if justified), dismiss or confirm the appointment of the employee. Before
extension or dismissal the employee is allowed to make representations.

An employer who does not want to confirm an appointment must show the procedure prior to
dismissal included;
 Giving the employee an opportunity to improve

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 Making the employee aware that the work performance was unacceptable
 Counselling the employee
 Treating the employee sympathetically and with patience

The unfair conduct of an employer relating to training S 186(2) (a)

An employer acting unfairly towards an employee with regards training is committing an ulp. An
employee can allege a legitimate expectation to training and an employer should not act arbitrarily,
capriciously or inconsistently in denying an employee appropriate training.

The unfair conduct of an employer relating to the provision of benefits S 186(2) (a)
The Act does not define benefits and the interpretation by the courts is narrow. Disputes regarding
remuneration are regarded as interest disputes and are not ulps. Thus a change in commission
structure is not a dispute of rights (ulp) but that of interest. In terms of modern salary structures it is
difficult to separate benefits from remuneration leading to different interpretations as regards to
transport allowance, provident fund benefits etc.

The unfair conduct of an employer relating to suspension or other conduct short of dismissal
S186(2) (b)
Two types of suspension;
 Precautionary suspension – suspension pending an enquiry to allow an employer to
investigate an alleged misconduct. The decision to suspend will depend on the
circumstances but the employee should not be suspended unless;
o There is a prima facie reason to believe serious misconduct
o Some objectively justifiable reason for exclusion from the workplace
Suspensions need to be based on substantively valid reasons and fair procedures followed before
implementation which could include the right to be heard before being placed on suspension.
 Punitive suspension – fair suspension without pay could be an alternative to a sanction of
dismissal in an attempt to correct the behaviour of the employee
 Any other disciplinary action short of dismissal – any unfair disciplinary action short of
dismissal could amount to an ulp such as warnings and transfers without consultation

The unfair conduct of an employer relating to refusal to reinstate or reemploy an employee in

terms of an agreement S 186(2) (c)
Former employees can be protected against refusal for re-engagement in terms of a prior
arrangement.

The unfair conduct of an employer relating to an employee suffering an occupational detriment on

account of a protected disclosure (whistle blowing) S186(2) (d)
Three requirements have to be me in this instance
 The employee must have made a protective disclosure
 The employer must have taken retaliatory action which amount to the employee suffering
from an occupational detriment
 The detriment suffered must be on account of (the LRA) or partly on account of (the PDA)
making the protected disclosure – that is causation
Occupational detriment means in this instance;
 Any disciplinary action
 Dismissal, suspension, demotion, harassment or intimidation
 Transferral
 Refusal of a transfer or promotion, denial of appointment
 Subjection to a term of employment
 Subjection to a term of retirement that is altered or kept altered to the employee’s
disadvantage

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 Refusal for a reference

 Being threatened with the above or subject to any other aspect related to work security,
employment opportunities etc.
Protected disclosure is that related to specific persons such as lawyers, employer’s members of
Cabinet, the public protector or Auditor general. A general protected disclosure includes that to the
media. The employee must;
 Make the disclosure in good faith
 And reasonably believe and
 The information disclosed is substantially true
Courts have generally protected employees by interdicting employers from any action after
protected disclosures has been made.

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Chapter 8 Dismissal and Termination of Employment

1. Introduction
In terms of S185(a) every employee has the right not be unfairly dismissed. Dismissal in defined in
S186 and an employee who alleges unfair dismissal must prove;
 That they are an employee
 Was dismissed in terms of one of the actions of S186
The burden of proof will then shift to the employer who must show the dismissal was not unfair by;
 Providing reasons – substantive fairness
 Showing due process was followed – procedural fairness

Definition of dismissal
Definition is covered in S186 covered below by a sub section.

a. Termination of a contract by the employer with or without notice S186(a)

Most common form of dismissal and notice referred to must at least comply with the BCEA. In
serious cases the contract may be summarily terminated but not before the employee is heard.

Refusal or failure by an employer to renew a fixed term contract S186(b)

If an employee reasonably expects an employer to renew a contract and this is not done or
alternatively the contract is renewed on less favourable grounds, this constitutes an unfair dismissal.
The key issue is whether the employer’s conduct created a reasonable expectation to renew.

Refusal to allow an employee to return to work after maternity leave S186(c)

In terms of the BCEA, an employee is entitled to four consecutive months of maternity leave and in
terms of the LRA this would be an automatically unfair dismissal.

Selective reemployment S186(d)

Dismissals of a number of employees but then rehire of one or more of them can be considered a
selective dismissal, although not necessarily unfair. The latter would occur when an employer
retrenches and later when conditions improve selectively re-employs as long as fair procedure was
followed and the employer could justify this.

Constructive dismissal S186(e)

Where an employee resigns because an employer has made life intolerable constitutes dismissal. In
this case the termination of the employment contract was coerced and not done voluntarily. The
employee must show that resignation came about as a result of the employer’s actions and the
following elements are required;
 The employee must show they resigned
 The employee must show that the reason for resignation was that continued employment
was intolerable
 The employee must show it was the employers conduct which made the employment
intolerable

An employee provided with less favourable terms after the transfer of a business S186(f)
If an employee resigns after the terms of employment are substantially less than previous, this
constitutes a dismissal. The LRA aims to protect job security and in the event of a transfer of
business, the new conditions of employment must, on the whole, not be less favourable than prior.
This part of the definition of dismissal also needs to be read in conjunction with S197 and S197A of
the LRA which is designed to protect employees undergoing transfers between employers.

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Automatically unfair dismissals

a. Concept of automatically unfair dismissals
These dismissals are described in S187 of the LRA and the purpose is to provide a remedy to
employees whose basic rights have been infringed. The only reasons that may justify such an
infringement are;
 If it is an inherent requirement of the job
 The employee had reached retirement age

The employer acts contrary to the employee’s right to freedom of association – S187 (intro)
Freedom of association refers to an employee’s right to join a union and to participate in its
activities. If an employer dismisses an employee because of this, the dismissal will be automatically
unfair. A senior manager may be a member of a union but he also needs to act in good faith towards
the employer implying a careful balancing if interests.

Participation in or supporting a protected strike or protest action - S 187(a)

This protection only extends to protected strikes but employers may even be dismissed in cases of
misconduct or for operational reasons.

Refusal to do the work of employees on a protected strike - S187(b)

This does not count for employees refusing to do their work while others are on a protected strike –
in this instance it amounts to insubordination.

Compelling an employee to accept the demand of an employer S187(c)

This amounts to the bullying of an employee by threatening dismissal if a demand is not acceded to
– type of dismissal is referred to as a lock-out dismissal. This protection should be seen against the
employer’s right to change workplace rules which should be done by negotiation. Eg NUMSA v Fry
Metals where the employer embarked on a lock out after the union refused to accept changes to the
shift system (however the employer did provide a case for operational reasons (and won)).

Exercising rights against the employer - S187(d)(i)

This is to protect the sanctity of the LRA and prohibit the victimisation of employees exercising their
rights in terms of the LRA.

Pregnancy, intended pregnancy or any issue related thereto S187(e)

It appears that the courts have upheld claims in the cases where a prospective employee has not
disclosed her pregnancy status until after employment and then was dismissed.

Unfair discrimination - S187(f)

Discrimination may be made directly or indirectly on any arbitrary ground including but not limited
to race, gender, sex, ethnic or social origin, sexual orientation, political opinion etc. Some measure
of discretion is allowed if the reason for discrimination is based on the inherent requirements of the
job or age (the normal or agreed-to retirement age).

Transfer of a business - S187(g)

The circumstances for each case will determine the period after the transfer for which this
protection will last. An employer is entitled to restructure after buying a business but if this
amounts to dismissal of all or most employees this could be viewed as unfair.

Protected disclosures S187(h)

The PDA defines what actions constitute a protected disclosure.

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Dispute resolution for an automatically unfair dismissal

The onus of proof lies with the employee. In addition to showing that they were dismissed, the
employee must also allege that it was due to one of the reasons above. The employer must show
why this was not the case

Fairs Dismissals in terms of the LRA

The LRA makes provision for fair dismissal provided they are fair and use the correct procedure.
Dismissals should only be for serious conduct and the employer should otherwise make use of
counselling, warnings and informal corrections.

a. Dismissal for misconduct

Substantive fairness
The code: dismissal sets the following requirements for substantive fairness.
 Did the employee contravene a rule or standard regulating conduct in the workplace?
 Was the rule valid and reasonable?
 Was the employee aware of the rule or could she have reasonably be expected to be aware
of the rule?
 Was the rule consistently applied by the employer?
 Is dismissal an appropriate action for contravention of the rule? The appropriateness of
dismissal will depend on, inter alia,;
o Length of service
o Previous disciplinary record
o Personal circumstances
o Nature of the job
o Circumstances of the infringement

Application of substantive fairness

The basic duty that has been breached in all cases of misconduct is the common-law duty to act in
good faith towards the employer. Employers generally provide a guideline as to what constitutes
misconduct but this cannot cater for all cases. Thus the best was to determine misconduct is
whether an employee did not do something expected of him/her for example;
 Unauthorised absence from work, abscondment, desertion and time relate offences – the
primary duty of an employee is to make his/her services available to the employer. Failure
to report for work constitutes breach of the employment contract and the circumstances
thereof, the degree of punishment required. In this respect the difference between AWOL
and desertion (intentional stay away with the objective of terminating the contract) become
important
 Attitude of hostility, abusive language, racism – the principle is that employer / employees
are expected to work together in a reasonable harmonious relationship. The mere fact that
abusive language is used is insufficient and all factors need to be taken into account.
 Theft, team misconduct, breach of trust, dishonesty – theft causes an irreparable harm to
the relationship of trust between the employer and employee and it is fair to dismiss such an
employee. If an individual cannot be identified, a group may accordingly be dismissed
 Other forms of misconduct which include assault, damage to property, conflict of interest,
intimidation, sexual harassment, drug abuse

Procedural fairness
The main principle is that the employer must give the employee an opportunity to be heard and to
defend himself against the allegations. A checklist is necessary to follow;

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 Did the employer conduct an investigation to determine whether there are grounds for
dismissal?
 Did the employer notify the employee of the allegations in a form and language
understandable?
 Did the employee get reasonable time to prepare?
 Was the employee allowed to state a case in response to the allegations?
 Was the employee allowed the assistance of a union representative or co-worker?
 Did the employer, after the hearing, communicate the decision taken and give the employee
written notification thereof as well as reasons
 If the employee is dismissed did the employer remind him/her of any rights to refer the
matter to the bargaining council or CCMA?

Dispute resoultion for a dismissal based on misconduct

Employee must within 30 days refer the dispute for reconciliation to the bargaining council / CCMA.
If the matter is not settled, it is set down for conciliation on which the commissioner makes an
award. This reward will be reviewed by the labour court in limited circumstances.

Dismissal for incapacity

Incapacity is regulated in terms of S188 and is defined as;
 poor work performance either during or after probation
 ill health, or injury either temporary or permanent
It involves some sort of behaviour that is neither intentional nor negligent. Note that there is a fine
line between incapacity and misconduct.

Poor work performance during probation

The Code: Dismissal compels the employer to provide assistance to an employee on probation
before dismissal based on poor performance;
 evaluation, instruction guidance etc during the period
 the employer must make it clear what the performance standard is and where the employee
falls short
 the employer must give the employee assistance and the opportunity to improve
 the employer should measure the progress and provide feedback
If dismissed during this period that employee should have the opportunity to respond to the
allegations supported by a union representative or colleague

Poor work performance after probation

An employer should consider other ways short of dismissal for disciplining an employee for poor
work performance. Before dismissal the employer must;
 Investigate the reasons for the unsatisfactory performance
 Provide appropriate evaluation, instruction, training, guidance or counselling
 Give the employee time to improve
 If the employee continues to perform unsatisfactorily they can then be dismissed for poor
performance
 During the process the employee has the right to assistance by a colleague / union
representative

Ill health or injury

The Code provides than an employer should attempt to accommodate an employee injured on duty
and should adopt the most cost effective means to remove the hindrance to the person to enable
them to perform which could include adapting the work place, changing working times and leave.
Substantive fairness in the case of the above would entail;
 Employer making an informed decision

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 Determination as to whether the employee is capable of performing the work

 If the employee is not able;
o Determine the extent to which the employee can perform
o The extent to which the work circumstance might be adapted to accommodate the
disability
o Where this is not possible, the extent to which his duties should be adapted
Procedural fairness would entail;
 Employee gets the opportunity to respond and make suggestions
 The employer must consult with the employee
 The employer must consider available medical information
 The employer must accommodate the employee where reasonable
The employer should make all reasonable attempts to accommodate an employee that has been
injured at work.

Dispute resolution for a dismissal based on incapacity

Employee must within 30 days refer the dispute for reconciliation to the bargaining council / CCMA.
If the matter is not settled, it is set down for conciliation on which the commissioner makes an
award. This reward will be reviewed by the labour court in limited circumstances.

Dismissal for operational requirements

Definition of operational requirements

Operational requirements are defined in the LRA which distinguished four broad categories;
 Economic needs
 Technological needs
 Structural needs
 Similar needs which include;
o The employees conduct has led to a breakdown of trust in the relationship
o The employees actions or presence has a negative effect on the business
o The enterprise business conditions have changes resulting in a requirement to
change the employee’s terms and conditions of employment.
Eccentric behaviour is permissible as long as it is not disruptive in the work place

Substantive fairness
There is a difficulty in ascertaining this considering the employer determines the economic,
technological and structural requirements for the business. The courts no longer accept an
employer’s explanation at face value and should determine whether the retrenchment has an
economic rationale.
S189A now provides a definition for substantive fairness as follows;
 The reason for dismissal must be for operational requirements as defined
 This must be the real reason and not a cover-up for another issue
 The reason on which the dismissal is based must actually exist
 The reason must be justifiable and based on rational grounds
 An objective test must be applied when determining rationality
 There must be a proper consideration of alternatives
 The employer must show the dismissal was a last resort
 Selection criteria must be fair and objective

Procedural fairness in terms of S189

Courts look at retrenchment quite closely especially in terms of substantive and procedural fairness.
The process by S189 is the basic process and it is compulsory for small and large firms to use this for
small scale retrenchments. The requirements are as follows;

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 Was there prior consultation? Consultation needs to take place at the earliest opportunity
(NUMSA v Atlantis Diesel Engines) and should be undertaken when the possibility of
retrenchments is foreseen.
 With whom did the employer consult? This should include the following as appropriate;
o Person or group in a collective agreement
o A workplace forum if there is no collective agreement
o Alternatively a registered trade union whose members are likely to be affected
 How did the parties consult? A single meeting is insufficient and consultation means an
attempt to reach consensus
 Did they attempt to reach consensus? There are six matters to reach agreement on
appropriate measures to;
o Avoid dismissals
o Minimise the number of dismissals
o Change the timing of dismissals
o Mitigate the adverse effects of dismissals
o The selection criteria and
o Severance pay
 Did the employer disclose relevant details in writing – the other party is not unrestricted in
its demands and in terms of S16(5) four categories of information need not be disclosed;
o Is legally privileged
o The employer cannot disclose without contravening a prohibition imposed on the
employer by an order of court
o Is confidential and if disclosed can cause substantial harm
o Is private personal information relating to an employee unless that employee agrees
 Did the employees get a chance to respond?
 Did the employer consider all representations?
 Did the employer use fair and objective selection criteria? The code acknowledges LIFO but
it can be applied discriminately e.g. by getting rid of a whole class of last appointed
employees.
 Did the employer allow severance pay? Minimum is regulated by S41 of BCEA – 1 week per
year of service. The employees demand for severance pay is not unlimited and a refusal to
accept alternative employment can act against them.

Procedural fairness in terms of the S189A

This section applies to large scale retrenchments for big employers. The Act does not make
provision for small employers and a big employer constitutes someone who employs more than 50
people. A large scale retrenchment is defined as;
 10 employees dismissed where an employer employees up to 200 people,
 20 to 300; 30 to 400; 40 to 500 and
 50 employees where an employer employs more 500 people
The process in terms of S189 A provides that a facilitator may be used, the employer needs to abide
by strict timetables and the workforce may chose the matter to go to the Labour court for
arbitration or strike.
The employer can request the appointment of a facilitator which must be done within 15 days notice
of the contemplated dismissal. The facilitator will chair meetings; set issues of procedure; arrange
further meetings and direct the parties to engage with the presence of the facilitator. The
facilitator’s decision is final and if appointed means the employer may not dismiss anyone inside 60
days. If no facilitator is appointed then only after 30 days before a dispute can be referred to the
CCMA or a council.

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Dispute resolution for a dismissal based on operational requirements

When dismissed the employee has 30 days to refer the matter for conciliation to the bargaining
council or CCMA. If the matter is not reconciled the employees may embark on a strike or refer the
matter to the Labour Court. The Labour court may make a ruling which can be appealed in the
labour appeal court.

Other aspects of dispute resolution

The LRA is meant to expedite matters which the old LRA and common law did not in the areas of
employment termination. Some areas in which issues are expedited are in;
 Prescription periods are shorter e.g. unfair dismissals must be referred to within 30 days
 The manner in which cases are referred is simpler
 The involvement of legal representatives is limited

a. Conciliation
In almost all cases of alleged unfair dismissal, the LRA requires that the matter must be referred to
dispute resolution. If conciliation is unsuccessful, a dispute related to misconduct, incapacity or
operational requirements must go for arbitration. Automatically unfair dismissals must go for
adjudication to the Labour court.

Arbitration
 The LRA specifies when a dispute must go for arbitration or adjudication
 Arbitration can take place at a bargaining council level or the CCMA
 The award by the arbitrator is final and an award can only be taken on review

Reviews and appeals

A review in terms of the LRA has been given a wider context than that governed by common law.
The test (from Sidamo and others vs. Rustenburg Plats) is “is the decision reached by the
Commissioner, one that a reasonable decision maker would not reach”? i.e. if another person came
to a different conclusion then the decision can be reviewed.
S167 allows for appeal to SCA, unless it is a constitutional matter. A review is the process is under
scrutiny whereas an appeal is where the decision is under scrutiny.

Remedies
The primary remedy is reinstatement, except in the following instances when compensation will
then be awarded;
 The employee does not wish to return to work
 The circumstances surrounding the dismissal are such that a continued employment
relationship would be intolerable
 It is not reasonably practical to reinstate or re-employ
 The dismissal is unfair only because the employer did not follow a fair procedure
The LRA caps the amount of compensation to a maximum of 12 month’s salary for unfair dismissal,
calculated at the rate of remuneration on the day of dismissal. For an automatically unfair dismissal
it is capped at 24 months.

The common law dispute resolution route

In terms of the common law, if one of the parties failed to perform in terms of the contract of
employment this would entail breach which would entitle the other party to either terminate the
contract or enforce and seek damages.

An employee can thus seek redress either in the High Court or the Labour Court meaning the Labour
Court does not have exclusive jurisdiction. This allows for forum shopping by both parties who can

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then see where they could maximise (minimise) their potential benefits. The LRA amendment bill
will seek to change this giving the Labour court exclusive jurisdiction and also exclude those
employees above a particular threshold.

Other ways of terminating the employment contract

a. Resignation by the employee
If the resignation is accepted an employer may elect to terminate immediately and then pay out the
employee for the notice period.

Termination on completion of an agreed task or period

A fixed term contract automatically comes to an end when the condition is reached

Termination by mutual agreement

Termination on grounds of impossibility of performance

The death of an employee automatically terminates the employment agreement but not the death
of an employer. The estate will be expected to pay the employee not unless the contract of
employment was of a personal nature.

Termination as a result of insolvency of the employer

Insolvency results in the following;
 The contract is suspended from the date of sequestration for 45 days after the appointment
of a trustee
 Under certain circumstances the employment contract may be terminated by the trustee or
liquidator
 The employee need not render services
 The employee is entitled to severance pay and to claim damages suffered as a result of the
termination.

Termination as a result of retirement

When an employee reached the mandatory age of retirement, the employer is entitled to demand
retirement and this will not be viewed as discrimination based on age.

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Chapter 9 Contextualisation of Collective Labour Law

1. Freedom of Association
a. Scope of freedom of association
Freedom of association is one of the basic tenets of labour law: freedom to associate with others
and defend and protect their common interests. In the workplace it entitles employees to establish
or join unions of their own choice and to participate in their lawful activities.
S23 of the Constitution specifically provides that;
 Workers have the right to form and join a trade union, to participate in the activities and
programs of the union and to strike,
 Every employer has the right to form and join an employer’s association and to participate in
the activities and programs thereof,
 Every trade union and employer’s association has the right to determine its own
administration, programs, activities, to organise and to join a federation
 Every trade union, employer’s association and employer has the right to engage in collective
bargaining
 National Legislation may recognise union security arrangements subject to the limitation
clause of S 36
The LRA protects employees from infringement of the right to freedom of association – thus an
employer may not require an employee to give up membership of a particular union. The right is
limited in the cases of members of the security services and the army likewise managerial employees
must balance this right against the common law requirement to act in good faith to their employers.

b. Infringements Allowed
The Constitution allows for union security arrangements contained in collective agreements or
‘closed-shop’ and ‘agency-shop’ agreements which infringe an employee’s right to freedom of
association. The limits set by the Constitution are that such agreements must;
 Be contained in a collective agreement
 Comply with the general limitation clause of the Constitution.
An agency shop agreement is;
 Concluded by a majority union with an employer or employer’s association
 Concluded by way of collective agreement
 The employer must deduct an agreed agency fee from the employees identified in the
agreement
o It must deducted from those who are not members of the union but are eligible for
membership
o Objectors thereto (moral or conscientious) must pay but this must be handed over to DoL
o Fees of non-union members cannot be higher than union member fees
o Agency fees are paid to a separate account and can only be used for the benefit of
employees
o Fees may not be used for political purposes and only used for advancing the socio-
economic interests of the employees
o The employer may deduct agency fees from employees without authorisation
A closed shop arrangement is;
 Concluded by a majority union with an employer or employer’s association
 Concluded by way of collective agreement
 A ballot must be held before of the employees covered
 2/3rds who voted must vote in favour

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 Fees collected may not be used for political affiliation and can only be used to advance the
socio-economic interests of the employees
 Employees already employed and conscious objectors may not be dismissed for refusing to
join the union that is party to the closed shop agreement
 Closed shop agreements may be terminated if a majority of employees vote for this
 It is not unfair to dismiss an employee for refusing to join a union which is party to this
agreement
 An employee may not be required to be a member of a majority union before the
commencement of employment (i.e. post entry closed shop agreement)

Organisational Rights
a. Purpose of organisational rights
Organisational rights are provided to unions to enable them to function more effectively and build
support and are only granted to registered trade unions. The LRA provides for five such rights
 Right of access to the premises of the employer (S12)
o Enter premises to recruit and communicate with members
o To hold meetings outside working hours
o Let members vote in union elections and ballots
 Right to have membership fees deducted by way of stop order (S13)
o Authorisation must be in writing
o Employer needs to start as soon as possible and pay over the money not later than the
15th
o An employee may revoke the stop order authorisation in writing to the employer and
union
 The right to elect shop stewards (S14)
o The number of shop stewards depends on the number of employees and determined
on a sliding scale
o They have a right to assist employees and monitor the employers compliance with the
law
o They are employed by the employer and not by the union
 The right of shop stewards to get time off for union activities (S15) and
o Entitled to reasonable time off during working hours to attend to union matters
 The right to disclosure of information (S16)
o The employer is not required to disclose information that is not relevant, not
available, legally privileged, harm business interests and of a personal nature
o The employer must divulge information to allow the union to do its work
Representivity is an important consideration in assessing the degree of organisational rights granted.
A union having majority representation has access to all organisational rights. Unions having
sufficient representation are only allowed partial rights.

b. Different levels of union representivity for different rights

Union has majority >51% Access to workplace
Membership fees
Elect shop stewards
Leave for union activities
Disclosure
Union is sufficiently represented – not defined Access to workplace
but guidelines put it at ~30% Membership fees
Leave for union activities
Union is a member of the bargaining council Access to workplace

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Membership fees
Minority union Union may enforce rights through collective
bargaining and industrial action

c. Acquisition of organisational rights

Through collective agreement

This can be the case even for trade unions that are not representative

Membership of a bargaining council

A registered trade union that is a party to a bargaining council automatically has the right of access
to the premises and to deduct fees in respect of all those workplaces falling under the bargaining
council. A union acquires these rights irrespective of being representative or not.

Strike action
A union may strike to achieve these rights even if they don’t meet the minimum requirements

Section 21 procedure
This requires that the union notifies the employer in writing that it seeks to exercise its
organisational rights. Within 30 days they must meet to conclude a collective agreement. If they do
not conclude then either party can refer the dispute to the CCMA for conciliation. If no conciliation
reached, then the parties can process to arbitration or alternatively strike / lock out after serving
appropriate notice.

d. Dispute resolution for organisational rights

Any dispute related to organisational rights can be referred to the CCMA for conciliation and if that
fails then for arbitration.

Collective Bargaining
Neither the Constitution nor the LRA define collective bargaining but it is generally held to be
negotiations between parties with the view to listen and consider the views of others in order to find
common ground.

a. Duty to bargain?
The inclusion of a right to engage according to the Constitution is not a duty to bargain and nor does
the LRA compel the parties to do this. However the LRA encourages collective bargaining by
granting organisational rights and closed and agency shop agreements. Should an employer refuse
to bargain, the Act allows for strike action. Refusal to bargain entails;
 The refusal to recognise a trade union as a bargaining agent
 The refusal to establish a bargaining council
 The withdrawal of recognition of a collective bargaining agent
 The employer’s resignation as a party to a bargaining council
 The employer disputing appropriate bargaining units, levels and topics
Disputes regarding a refusal to bargain must first be referred to the CCMA for an advisory award
which provides guidance only and is not binding.

Bargaining agents
Collective bargaining occurs through bargaining agents who include employer associations and trade
unions. A trade union is defined as an association of employees whose principal purpose is to

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regulate the relationship between employers and employees. A trade union need not be registered,
but registration allows the right to;
 Conclude a collective agreement enforceable under the LRA
 Acquire organisational rights
 Be a member of a bargaining council, statutory council and workplace forum
 Conclude closed and agency shop agreements
A bargaining council’s functions are outlines in S28 of the LRA and is has three main functions;
 Conclude collective agreements
 Enforce collective agreements
 Prevent and resolve labour disputes

Levels of Bargaining
Collective bargaining can take place at plant, sector or industry level but the LRA encourages
discussions as sector / industry level.

Disputes that the LRA requires a bargaining council to resolve

Disputes about freedom of association A bargaining council can only conciliate disputes,
failing which they need to go to the Labour Court
for adjudication
Disputes of interest in an essential service Bargaining council can conciliate and arbitrate
Disputes regarding severance pay Bargaining council can conciliate and arbitrate
Disputes about unfair labour practices Bargaining council can conciliate provided that the
case does not involve discrimination which must
then go to CCMA and then to Labour Court
Disputes that may lead to strike or lock-out Bargaining council can only conciliate
Dismissal disputes if based on; Bargaining council can only conciliate
 Operational requirements
 Participation in unprotected strike
 Reasons related to closed shop
 Automatically unfair
Dispute based on misconduct or incapacity Bargaining council can conciliate and arbitrate by
way of con-arb procedure

Collective agreements
Main goal is to reach consensus on issues and formalise their relationship via a collective
agreements. The LRA has a collective agreement as a written agreement concerning terms and
conditions of employment or any other matter of mutual interest concluded between one or more
registered trade unions on the one hand and one or more employers or employers’ organisations on
the other.

Three important elements define a collective agreement compared to other employer /ee
relationships;
 It is in writing
 Only a registered trade union can be a party
 Must regulate an agreement between the parties
A collective agreement binds;
 The parties to the agreement
 Each party and other members insofar as it relates to them
 Members of registered trade union and employers for issues related to;
o Terms and conditions
o Relationships of employers to employees and vice versa

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 Employees who are not members of registered unions are bound if;
o They are identified in the agreement
o The agreement expressly binds them
o The union represents the majority of the workers

Workplace forums
To encourage participation workplace forums are introduced by the LRA which is an in-house
institution promoting worker participation in decision making. Important differences include;
 Union is a juristic body a forum is not
 Union deals with wage related issues whereas a forum does not
 Union can embark on industrial action whereas a forum cannot
All employees may be members except for senior management. Only registered trade unions or
unions representing the majority of a workforce can apply for the establishment of a forum.

a. What is consultation?
Consultation must take place before an employer implements a proposal and entails;
 Allowing the forum to make representations and alternative proposals
 Considering and responding to these and offer reasons why they disagree if applicable

What is joint decision making?

This requires the employer to consult and reach consensus with the forum

Matter for consultation

Proposals relating to the following unless managed under a collective agreement;
 Restructuring the workplace e.g. introduction of new technology
 Changes in the organisation of work
 Total or partial plant closure
 Merger and transfer of ownership if it impacts employees
 Retrenchments
 Exemption from any collective agreement or law
 Job grading
 Criteria for merit increases or payment of discretionary bonuses
 Education and training
 Product development plans and export promotion

Matters for joint decision making

Matters for joint decision making cannot be regulated by a collective agreement and include;
 Disciplinary codes and procedures
 Regulation of the work place
 Measures designed to protect and advance disadvantaged persons by unfair discrimination
 Changes of employer representatives on boards of employer controlled schemes with
regards social benefits.

The employer is obliged to disclose all relevant information but not the following;
 Informantion that is legally priveleged
 That the employer may not disclose without contravening a law or court order
 That is confidential and if disclosed may cause harm to the employee or employer
 Private personal information related to an employee
Disputes about information disclosure may be referred to the CCMA where if not succesful then to
arbitration.

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Forums are not widely available because management see it as an inroad to management
prerogative whereas unions see them as undermining the collective bargaining structures.

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Chapter 10 Industrial Action

1. Introduction
The right to strike is provided for in the constitution but not expressly the right to lock out which is
only provided for in the LRA. Neither the right to strike nor lockout is expressly provided for in the
ILO conventions but only indirectly therein. Both methods are elements of collective bargaining but
should only be used as a last resort.

Hurdles in the way of protected industrial action

Strikes and lockouts are not automatically protected and there are some hurdles to cross before
they can be protected.
 To cross hurdle 1, their action needs to comply with the definition of a strike or lock out
 To cross hurdle 2, the parties must comply with the procedure defined in Section 64 of the
LRA
 The parties must ensure that none of the prohibitions against industrial action as contained
in S65 of the LRA are present in their dispute

a. Introduction Hurdle1: Definition of a strike or lockout

Outline of a hurdle
Actions falling outside the definition will not be protected and it stands on two legs
 Definition of a strike
 Definition of a lock out

Definition of a strike
Strike is defined as “…the partial or complete concerted refusal to work, or the retardation or
obstruction of work, by persons who are or have been employed by the same or different
employers...for the purpose of remedying a difference or resolving a dispute on a matter of mutual
interest.”
Note three aspects;
 refusal to work; the refusal must be
o in relation to work which employees are contractually obliged to perform
o not contrary to the law or a collective agreement
The action can be partial or complete; it can be a retardation or obstruction of work and can include
a refusal to do overtime
 concerted action; that is by a group of people and constitute collective action directed at an
employer or employers
 remedy a difference in respect of a matter of mutual interest – when there is no grievance
or dispute there cannot be a strike. The concept of mutual interest is not defined but has
been regarded as calculated to promote the well being of the trade concerned. These
issues can be terms of condition of employment, SHE, disciplinary procedures etc. Political
issues do not qualify.

Definition of a lockout
The right to strike is guaranteed by the Constitution but not the right to lock-out, only recourse to
lock-out. A lock-out is defined as the exclusion by an employer of employees from the workplace
for the purpose of compelling the employees to accept a demand in respect of a matter of mutual
interest.
Thus consists of two elements;

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 Exclusion of the employees by the employer – this has the effect of not paying employees
their wages in accordance with no work – no pay. The employer cannot exclude only one
employee but a group thereof.
 The purpose must be to accept a demand on a matter of mutual interest. If it is not for this
reason then it will not be a lock out but be a breach of contract.

Hurdle2: Procedural requirements for the protection of strikes and lock-outs in terms of S64

Outline of a hurdle
This hurdle stands on three legs as outlined below

The issue in dispute must be referred to conciliation

The issue in dispute must fall within the definition of a strike or lock-out – i.e. relate to a matter of
self interest.
The LRA requires that the parties must try and resolve the issue – thus it must be referred to the
bargaining council and if this does not exist then the CCMA for conciliation.

Certificate of outcome - within 30 days

The bargaining council / CCMA must attempt to resolve the dispute within 30 days of referral. If no
resolution is reached, then a certificate is issued to this effect and the parties can then give notice of
a lock-out or strike.

Prescribed notice
At least 48 hours must be given for written notice of the industrial action - strike or lock-out. For the
State 7 days notice is required. There are some exceptions to this;
 If the parties are members of a bargaining council or concluded a collective agreement
which provides for different procedures
 If an employer implements an unprotected lock-out and the employees strike in response
 A strike taking place after an employer has unilaterally changed conditions of employment
 If an employer refuses to bargain with a union in which case it must be referred to
conciliation and then arbitration.

Hurdle3: Prohibitions and limitations of strikes and lock-outs in terms of S65

Outline of a hurdle
This hurdle relates to restrictions provided by S65 of the LRA. If a strike is so restricted and
continues anyway, then it will be unprotected. It consists of six issues;

Where a collective agreement prohibits a strike or lockout

Where there has been prior agreement not to strike but this happens then this will be unprotected.

Where an agreement prescribes arbitration

It will be unprotected if a prior agreement prescribes arbitration

Where a dispute must be referred to the labour court for arbitration

There are two exceptions to this rule;
 For employees enforcing demands in terms of organisational rights, the LRA provides a
choice between arbitration and striking. If they opt for striking then they forfeit the right to
arbitration for one year
 For large scale retrenchments, the union may either seek arbitration or strike action. If
opting for strike action, then they can’t arbitrate.

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Where employees are engaged in essential and maintenance services

Employees engaged in the provision of essential and maintenance services are prohibited from
striking, which includes;
 A service whose interruption endangers life, personal safety or health of whole or part of the
population
 The Parliamentary service
 The SAPS

Whether essential or not is determined by the Essential services committee and some examples
include; air traffic controllers, municipal traffic police, supply and distribution of water, power, fire
fighting and correctional services.
However employees engaged in essential services can conclude collective agreements providing for
the maintenance of certain minimum services – the maintenance service may not strike while the
rest may. When a service is designated a maintenance service, replacement labour may not be
used.

Where an award or collective agreement regulates the dispute

LRA provides that no-one may take part in a strike / lock-out if that person is bound by an arbitration
award. Strikes are also prohibited if parties are bound by a collective agreement that regulates the
issue in dispute.

Where a determination regulates the issue

Parties bound by a determination made by the Minister may not strike

Secondary Strikes
For a secondary strike to be protected the LRA sets the following requirements;
 The primary strike must be protected – i.e. crossed all three hurdles above
 Strikers must give their employer seven days written notice – if the secondary strike is part
of a strike for dismissals for operational reasons, then 14 days notice is required
 The harm to the secondary employer must not be more than what is required to make an
impact on the primary employer – the LRA permits the Labour Court to consider the
proportionality of the secondary strike. If the requirements are not met, the employer may
approach the Labour Court for an interdict

Legal consequences of protected strikes and lockouts

If all the hurdles covered by the LRA have been crossed then the strike or lockout will be protected.
Thus the union and employer will be entitled to the following;
 An employee may not be dismissed except for misconduct or operational reasons
 The employer’s or employee’s conduct does not involve delict or breach
 An employer may not discriminate against an employee due to his involvement in the strike
 No claims for compensation are allowed on the part of the employer / employee

a. Dismissal only for misconduct and operational requirements

If an employer dismissed employees who took part in a protected strike the dismissal is
automatically unfair.
Dismissal may take place for unlawful conduct for which an employer may also lay charges / obtain
an interdict or civil proceedings to recover losses. Employees also may be dismissed for operational
reasons but this will be subject to scrutiny and procedures in terms of the LRA must be followed.

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Delict or breach of contract

Under common law this would be the case for workers proceeding on a protected strike, however
the LRA provides that no civil action may be taken. Furthermore the employer may not interdict
anyone.

Protection against discrimination

No discrimination to strikers e.g. – bonuses to workers not on strike or the withdrawal of
discretionary bonuses to strikers.

Protection against claims for compensation by employers

Employers and employees may not approach the labour court for compensation due to loss.

Further consequences for employers and employees following protected strikes or lock outs
 Consequence 1 – no work, no pay based on contractual arrangement between the parties.
However if part of the remuneration package is the provision of life amenities these may not
be withdrawn – for example, accommodation and meals
 Consequence 2 – replacement labour. Employers are permitted to use replacement labour,
except in the case of a maintenance service. Employers may not use replacement labour for
an offensive lock-out, but may for a defensive one.

Consequences of unprotected strikes and lockouts

a. Consequences 1: interdict
If the strike / lock out does not comply with S64 and 65 it will be unprotected and the Labour Court
can grant an interdict restraining anyone from participation in the strike.

Consequence 2: Compensation
The Labour Court may order the payment of just and equitable compensation to employees or
employers who suffered any loss as a result of the strike which must be proven. In deciding whether
to grant the order, the Labour Court must have regard to;
 Whether attempts were made to comply with the provisions of S64 and S65
 The extent of the attempts
 Whether the strike / lock-out was pre-meditated

Consequence 3: Dismissal
The Code provides that participation in an unprotected strike amounts to misconduct and this does
not necessarily justify dismissal. Dismissal will only be fair if substantively and procedurally fair.

Substantive fairness
This relates to whether there are fair and valid reasons and evaluated in the following light;
 The degree of seriousness of the failure to comply with the LRA needs to be considered
 Attempts to comply with the provisions of the LRA would not be construed as sufficient
reason for dismissal
 Unjustified conduct by the employer e.g. a strike in response to an unfair bargaining tactic.

Procedural fairness
The Code sets out the procedure to be followed;
 Contact with the union – if strikers are union members the employers are required to
contact an official before dismissing workers
 The employers must give the strikers an ultimatum before dismissal which must comply with
the following requirements

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o Communicated to the strikers in a medium they understand and preferably their

own language
o The ultimatum must be clear and unambiguous
o The time set out must be reasonable – i.e. provide them with time to meet and
discuss and take rational decisions
o If communicated to a collective bargaining representative within a reasonable time
this will constitute sufficient notice.
If the strikers comply with the ultimatum, the employer may not take disciplinary action. If
employees fail to respond to the ultimatum, dismissal is seen as procedurally fair.

Pickets
a. What constitutes a picket?
The right to picket is guaranteed by the Constitution and regulated by the LRA. The Code states that
it is a peaceful method to encourage non striking workers and members of the public to oppose a
lock-out or support a protected strike. The LRA prescribes circumstances under which it may take
place and enjoy protection.

Requirements for protection of a picket

To enjoy protection a picket it must be in compliance with S69 of the LRA and must;
 Be authorised by a trade union – unauthorised unions may not picket. Authorisation must
be formal and in writing.
 Must be for the purpose of peacefully demonstrating
 In support of any protected strike or in opposition to any lock-out

Where can a picket take place?

Any place where the public has access but outside the premises of the employer or, if allowed, on his
premises. The CCMA may get involved to secure an agreement on the rules of access to the
premises. An employer may not unreasonably withhold permission to picket and the code provides
some of the following factors in determining whether it was reasonable;
 The nature of the workplace and the situation
 The number of employees proposed to take part on the premises
 The undertaking by the union to exercise control over the picket
If the CCMA allow picketing on the employers premises but he refuses , the trade union may refer
the dispute to the CCMA for conciliation – failing that the Labour Court.

Picketing rules and conduct

The employer / employee must agree on the rules. If they fail, an approach may be made to the
CCMA to attempt to secure an agreement, failing which the CCMA may establish rules. In terms of
the Code: Picketing, the following must be done;
 A convenor, who is a member or official of the union, must be appointed to oversee the
picket
 The convenor must have on hand S69 of the LRA
 The convenor must notify the employer, the responsible person in terms of public
gatherings, the police and public officials
The notice should contain;
 Confirmation that the picket complies with S69
 Name, address and number of the union and the convenor
 Details of the picket including the employer being picketed
 The date and location of the picket

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The employer must provide the convenor with the contact details of the person representing him.
The union must also appoint marshals for the picket

Legal consequences of unprotected and protected pickets

A person taking part in a protect picket does not commit a delict, breach of contract and they are
protected against criminal liability. No disciplinary action may be taking against employees
participating in a protected picket but for those committing acts of misconduct action may be taken
against them. Pickets in breach of 69(1) and (2) will be unprotected.

Protest Action
The LRA affords workers the right to take part in protest action as a form of industrial action.
Protest action is to promote or defend the socio-economic interests of workers but action for
political purposes is not sanctioned by the LRA. In order for protest action to be protected, the
following is required;
 The employees must not be engaged in an essential or maintenance service
 The action must be called by a registered trade union or federation
 NEDLAC must be provide 14 days notice thereof, including the nature and reasons
 The matter giving rise to the protest action must have been considered by NEDLAC
 Employees may not act in breach or contempt of an order of the Labour Court
If the above are adhered to, employees will be protected in the same manner as for protected
strikes. If the procedural requirements are not met, the action may be prohibited by interdict and
damages claimed and they may be fairly dismissed.

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