MLL5901 JANUARY/FEBRUARY 2024

UNIVERSITY EXAMINATIONS

January 2024

MLL5901

Individual Labour Law

100 Marks
4 Hours

First examiner: Dr W Germishuys-Burchell

Second examiner: Mr MK Mathiba

This paper consists of 10 pages.

Instructions:

INSTRUCTIONS FOR A 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 25 January 2023 BEFORE 17h15
(South African Standard Time).

5. While the examination is in progress, you are not allowed to consult another person
to assist you to answer any of the questions contained in this question paper and
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 (or
log in to) the Invigilator app between 12h30 and 13h15 (South African Standard
Time).

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The QR code is below:

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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.

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.

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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 14 pages (which includes the cover page and the bibliography). If the take-
home exam is handwritten, the maximum length is 16 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

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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 Also, because you have the study material available when answering questions, we
do not give marks for direct quotations from the study material. 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 YOUR PRESCRIBED
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.

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 textbook 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.

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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 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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QUESTION 1

(a) Noise FM is a commercial radio station broadcasting in Gauteng Province. On

1 January 2021, Noise FM hired Chatterbox, a vibrant and talented newsreader,
to read its weekday news bulletins. Clause 2.2 of the contract of employment
of Chatterbox, stipulates that he may not work any radio station in the province,
after having resigned from Noise FM. This clause is to be applicable for a year
after the date of his resignation. Chatterbox resigned with effect from 30 June
2022. During his stay at the station, Chatterbox would often defy the news
editor, and his bulletins would be five minutes late. On 2 September 2022,
Chatterbox was hired by Lawaai Fm, a talk radio station in Midrand, Gauteng.

With reference to relevant legal authority, discuss the nature and legal
implications of the conduct of Chatterbox, during and beyond his employment
at Noise FM. (10)

(b) On 1 January 2000 Company ABC (“the company”) started doing business.
Initially, the company manufactured and distributed motor spares. Messrs W
and X started with the company on 1 January 2008 as assemblers. As a result
of the company’s rapid growth and it being awarded two big manufacturing
contracts shortly after one another, it found itself in urgent need of additional
assemblers. The company approached TES Labour Brokers (“TES”). On 1
January 2023 TES placed 10 assemblers with the company. On 27 March 2023
it came to the company’s attention that Mr Mode, one of the 10 assemblers
placed by TES lodged a complaint about working conditions with the
Department of Employment and Labour. The company instructs TES to make
sure it removes Mr Mode before the end of March 2023 and to replace him with
another assembler, which TES does.

Against this background, answer the following question:

Mr Mode is very unhappy and comes to you for advice. He also wants to know
whom he might institute action against. Advise Mr Mode fully on the legal
protection afforded to TES employees, his legal position, and possible remedies
that he may have. (15)
[25]

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QUESTION 2

Critically discuss the importance of the following cases:

(a) Apollo Tyres South Africa (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and others [2013] 5 BLLR 434 (LAC). (10)

(b) Solidarity and others v Department of Correctional Services and others (2016)
37 ILJ 1995 (CC). (15)
[25]

QUESTION 3

Black Vanilla (Pty) Ltd (“the company”) is a company that imports vanilla beans to
South Africa in order to manufacture and distribute vanilla sugar. At present the
company has 95 employees in its service. The last 2 years were difficult ones for the
company. Two years ago, most of the world’s vanilla-harvest was destroyed and this,
along with the depreciation in the rand, forced the company to dismiss 9 employees in
March 2023. Directly after this, however, the company was fortunate enough to secure
a contract with a supplier from Zanzibar for their future imports – the cost of imports
from this country was relatively low. Initially, all went according to plan, but later,
circumstances once again changed. The supply of vanilla to the company, for the past
six months, has been interrupted constantly and, as a result, the company has
calculated that, for the foreseeable future, it will only be able to operate at 80%
production. In light of this, management feels that the best course of action is to adjust
the organisation of work at the company, which, in all probability, will lead to the
dismissal for operational reasons of another 9 employees.

On 2 January 2024, the management of Black Vanilla issues a notice in terms of

section 189(3) of the LRA to VIVA, a registered trade union that represents 75 of the
employees of the company, which includes the 9 employees likely to lose their jobs.

During the consultations that immediately follow the notice, it becomes clear that the
biggest problems that exist are in connection with selection criteria and severance pay.
As far as selection criteria are concerned, management is in favour of application of
the LIFO principle subject to the retention of skills and productivity. In this regard,
management also mentions that Black Vanilla took over another company as a going
concern in the course of 2020. Management feels that the those who are to be
retrenched should come from the group of employees they took over in 2020, not only
because they have the shortest period of service with Black Vanilla, but also to reward
the loyalty of those employees who have always worked for Black Vanilla.

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As far as productivity is concerned, management feels that this should be based on

the most recent performance evaluation of the employees by the different managers
at Black Vanilla.

As far as severance pay is concerned, Black Vanilla is only prepared to pay 1 weeks’
remuneration for every continuous year of service. The trade union, however, insists
on 2 weeks’ severance pay for every year worked.

Against this background, and with reference to all of the relevant authority from your
prescribed study material advise the management team of Black Vanilla about their
position on the following:

(a) Management is also of the view that those employees for whom it
(Management) is able to arrange alternative employment with another
employer in the surrounding area would lose their entitlement to severance pay.
Advise Management, fully, on the correctness of this view and all factors that
should be considered in this regard. (5)

(b) All of the requirements that the team should follow to ensure both the
substantive and procedural fairness of all dismissals. (10)

(c) The fairness or otherwise of management’s views and the rights (if any) the
employees may exercise should management decide to implement its views
about selection and severance pay. (10)
[25]

QUESTION 4

(a) Vusi works for Tendercity Municipality as a corporate services manager. He

was dismissed for sexually harassing his personal assistant. Aggrieved by his
dismissal, Vusi referred an unfair dismissal dispute to the relevant bargaining
council. He strongly feels that the municipality has not proven the misconduct
for which he has been dismissed, and that his dismissal was not an appropriate
sanction. With reference to relevant authority, critically explain how the
bargaining council should evaluate Vusi’s claims. (15)

(b) Suppose the bargaining council issues an award in favour of the municipality.
Vusi is further displeased and decides to head to the Labour Court. Critically
discuss the test to be followed in reviewing the decision of the bargaining
council. (10)
[25]
TOTAL [100]
©
UNISA 2023

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