MRL3702 OCT-NOV 2018_MEMO

QUESTION 1.

a. Employee Independent contractor

Object of contract is to render personal Object of contract is to perform specified

services work or produce specified results
Employee must perform services personally Independent contractor may usually
perform through others
Employer may choose when to make use of Independent contractor must perform work
services of employee (or produce result) within period fixed by
contract
Contract terminates on death of employee Contract does not necessarily terminate on
the death of the employee
Contract also terminates on expiry of period Contract terminates on completion of work
of service in contract or production of specified results

b. Duties of employees
To render services to the employer
To work competently and diligently
To obey lawful and reasonable instructions
To serve the employers interests and act in good faith

Duties of the employer

To remunerate the employee
To provide the employee with work
To provide safe working conditions
To deal fairly with the employee

c. Forms of sexual harassment

Quid pro quo harassment
An employee is victimized or intimidated for failing to submit to sexual advances.
 Victimization - employment circumstances, for example, promotion or an
increase, are influenced by the employer, manager or a co-employee to coerce an
employee to surrender to sexual advances.

Sexual Favoritism - A person in a position of authority in the workplace rewards

only those who respond to her/his sexual advances.

d. Termination on grounds of impossibility of performance

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. The death of an employee during the term of the contract
will also terminate the contract because of the objective impossibility of
performance. However, the employer’s death will not necessarily terminate the
contract of employment, as the estate of the employer will still be liable to pay the
employee, unless the services of the employee are of a personal nature.

QUESTION 2

a. • Larger enterprises with 50 or more employees

• Employers who employ fewer than 50 employees, but have an annual turnover
specified in Schedule 4 of the EEA

• Municipalities

• Organs of state such as the Airports Company of South Africa (ACSA), the Central
Energy Fund, the

Development Bank of South Africa, Eskom, the SABC, the SA Post Office Limited and
Telkom SA Limited

(excluding the National Defence Force, the National Intelligence Agency and the
Secret Service)

• Employers that are designated as such in terms of a collective agreement

• The National Defence Force and the State Security Agency are explicitly excluded
from the definition of designated employers

b. Sick leave

• No. of days employee would normally work during a 6 week period) / 36 months

• During first months of employment, 1 d / 26 d worked is accumulated

• S 23(1) = employer not required to pay employee if absent +2 consecutive days

/ + 2 occasions during an 8 week period + doesn’t, at request of employer,
produce med certificate stating he was unable to work for such period due to
illness / injury

• S 23(2): Med cert must be issued + signed by medical practitioner / anyone

certified to diagnose + treat patients + registered with professional council ito
legislation

• Abuse of sick leave / providing false / fraudulently obtained med cert may
constitute dismissible conduct

c. 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.

CASE LAW: 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 employer 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 of unfair dismissal:

• the employee must show that he/she has resigned

• the employee must show that the reason for the resignation was that continued
employment become intolerable, and

• the employee must show that it was the employer’s conduct that created the
intolerable circumstances

QUESTION 3

a. only a registered union may:

• conclude collective agreements which are enforceable in terms of the LRA,

• apply for the establishment of a bargaining or a statutory council,

• apply for the establishment of a workplace forum,

• authorize a picket by its members,

• exercise organizational rights, and

• represent its members at the CCMA.

b. The inclusion of the right to engage in collective bargaining in the Constitution does not
create a duty for either of the parties to bargain with each other. The LRA does not compel
parties to bargain with each other; however the LRA encourages collective bargaining. Should
an employer refuse to bargain, the Act
allows for strike action by the employees to convince the employer to bargain. A refusal
to bargain includes:
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 agent
the employer’s resignation as a party to a bargaining council, and
the employer disputing appropriate bargaining units, levels and topics
Disputes regarding refusal to bargain must first be referred to the CCMA for an
advisory award. An advisory award provides guidance only; and is not binding on the
parties

c.

trade union Workplace forum

a union is a juristic body a forum is not a juristic body

a unions deals with wage-related issues a forum deals with non-wage related
issues

a union can embark on industrial action a forum cannot embark on industrial

action

d. access to the workplace; membership fees

deducted from wages; union
representatives may get leave for trade
union activities

QUESTION 4

a. If an employer dismisses an employee for taking part in a protected strike it will be

automatically unfair. An employee may be dismissed for misconduct during a strike,
such as assaulting or intimidating co-employees or damage to property – the dismissal
must be fair.

The employer may then also institute criminal charges.

Another reason for dismissal is for operational requirements of the business.

b. 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 reciprocal in nature, that is, performance by the employer depends
on performance by the employee. 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 during a protected strike

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, request 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.

c. 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.1
In order for a strike to be a protected it must comply with the following:
1. Action must comply with the definitional elements which are the refusal to work
(partial or complete), by persons employed by the same or different employers and
for the purpose of remedying a grievance or resolving a dispute in respect of any
matter of mutual interest between an employer and employee.
2. The procedural requirements which are prescribed by the LRA must be followed: there
must be an issue in dispute, the forum to which the dispute was referred must attempt
to resolve it through conciliation within 30 days of the referral (certificate of outcome)
and if the matter is not resolved within the above prescription at least 48 hours written
notice must be given before the commencement of the strike (notice).
The Constitution recognizes and accepts the principle that under certain
circumstances, rights may be limited, provided that the limitation complies with the
limitation clause.2 Henceforth, section 65 of the LRA limits or prohibits to strike due to
the following circumstances: striking is prohibited in a collective agreement, arbitration
is prescribed by agreement, the LRA prescribes arbitration or adjudication, employees
who work in essential or maintenance services (prohibited from striking) and if an
award or agreement regulates the issue.

Whether a service qualifies as an essential or maintenance service is determined by

the Essential Services Committee (hereafter ‘ESC’). The SAPS and Parliamentary
Services are specifically included in the definition of ‘essential service’.

Other examples of services that have been designated as essential services are:

• the regulation and control of air traffic,

• municipal traffic policing,

• the supply and distribution

Although employees engaged in essential services are prohibited from striking, the
LRA makes provision for an exception, namely where there is a minimum services
agreement in place.

Employers and unions involved in essential services can conclude collective

agreements providing for the maintenance of certain ‘minimum services’ as an
essential service. This minimum service will not be able to strike while the rest of the
‘essential services’ may. In the scenario at hand the above factors are not explicitly
stated, henceforth, the employees may not embark on a strike.

d. 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 whilst a picket takes place when, for example, employees on
strike stand at/near their workplace in order to persuade others, such as employees
not on strike, or endeavoring to convince customers and suppliers of the employer not
to deal with their employer. A picket is generally used by employees to gain publicity
for and support for their demands.
MRL3702 MAY-JUNE 2018_MEMO
QUESTION 1

• (a). 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 employment
intolerable;
• Employee terminated COE with or w/o notice because he was transferred + new employer
provided employee with conditions / circumstances substantially less favourable to employee
than those provided by old employer

(b). Absent without leave (AWOL) is when an employee does not want to terminate the employment
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 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.). … ‘an individual who is not a South African citizen or does not have a permanent residence permit
issued in terms of the immigration Act’.

QUESTION 2

(a). 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 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.

A dismissal is automatically unfair if based on unfair discrimination 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
However, some measures of discretion are allowed as to the fairness of the dismissal if the reason for
discrimination is based on:

• the inherent requirements of the particular job, or

• age, if the employee has reached the normal or agreed-to-retirement age for persons employed
in that capacity

CASE LAW: Allpass v Mooikloof Estates (Pty) Ltd t/a Mooikloof Equestrian Centre

The employee, when requested by the employer to disclosure personal particulars a few days after
starting the job, revealed that he had a number of illnesses (including being HIV positive) and allergies
(including being allergic to penicillin). The employer dismissed and removed the employee from the
premises. The employer’s justification for his actions was that the employee had ‘misrepresented’ his
state of health during the interview.

Two issues arose:

1. was the employee capable of performing his duties, and

2. if so, whether his dismissal was based on misconduct or his HIV status

The employee claimed, firstly, that he was automatically unfairly dismissed in terms of the LRA due to
his HIV status. Secondly, he had a right to privacy and was, therefore, not obliged to disclose his HIV
status. Moreover, the employee argued that removing him from the premises, his dignity was impaired
(in terms of the EEA)

The employer argued that the employee was severely ill and that he would not be able to do his work
as stable yard manager, trainer and riding instructor. The evidence showed that the employee’s HIV
infection was under control and that he was physically fit to do the job.

The court found that the employer’s opinion that the employee was ill, was based on a general
stereotype of all people with HIV. This stereotype affected the employee’s dignity and resulted in the
unfair condemnation of the employee to ‘economic death’

The employer further argued that the ability to inject horses with penicillin was an ‘inherent requirement
of the job’ and that the employee was unable to do this task

The court held this to be a ‘thin veil’ to disguise the real reason for the dismissal, namely the employee’s
HIV status. It was found that the employee was automatically unfairly dismissed in this basis.

(b). A contract of employment must meet all the requirements that the law prescribes for the conclusion
of a valid contract. These requirements are:
1. There must be an agreement between the parties – the employment contract just like any other
contract is created through offer and acceptance.
2. The parties to the contract must have the capacity to act – for example a mentally impaired
person or a minor will not be able to conclude a valid contract of employment.
3. The agreement must be legally possible – it will not be legally possible to appoint someone as an
assassin for your debt collection business.
4. Performance under the agreement must be physically possible – if the employer appoints a
personal nurse to care for him/her and the nurse dies, performance will no longer be physically
possible.
5. If any formalities are prescribed for the formation of that particular type of contract, then these
formalities must be satisfied – employment contract of a candidate attorney just be in writing and
registered with the Law Society within two months after conclusion
(c.). 1. Maximum working hours
2. 4 months’ maternity leave
3. Not less than 2 weeks’ annual leave
4. Provisions relating to night work
5. Provisions relating to sick leave

QUESTION 3

(a). Access premises of the employer – sufficient representation

Deduction of trade union membership fees – sufficient representation

Election of shop stewards – majority representation

Leave for union activities – sufficient representation

Disclosure of information – majority representation

(b). Freedom of association means that people have the right to associate with others in order to defend
and protect their common interests.

In the workplace, freedom of association entails the right of workers to form and join trade unions of
their choice and to participate in these unions ‘lawful activities’

The Constitution allows for ‘union security arrangements in collective agreements’. This refers to the
so-called ‘closed-shop’ and ‘agency-shop’ agreements which infringe an employee’s right to freedom
of association. The only limits set in the Constitution are that such agreements must:

• be contained in a collective agreement, and

• comply with the general limitation clause of the Constitution

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.
• two thirds of the employees (that will potentially be covered) who voted, must vote in favour of
the agreement
• union subscription fees may not be used for political affiliation and may not be used for any
purpose other than advancing or protecting the socio-economic interests of the employees
• employees who are already employed when the closed-shop agreement came into effect, and
conscious objectors may not be dismissed for refusing to join the union which is a party to a closed
shop agreement
• closed-shop agreements may be terminated if a majority of the employees vote for its termination
• it is not unfair to dismiss an employee for refusing to join a union which is a party to a closed-shop
agreement, or who is refused union membership, or has been expelled from a union which is a
party to the agreement, provided that the refusal or expulsion is in accordance with the union’s
constitution and that the reason for the refusal or expulsion is fair
• an employee may not be required to be a member of a majority union before the commencement
of employment. The latter is called a post-entry closed-shop agreement (the opposite is a pre-
entry closed shop agreement, that is, al closed shop agreement that requires an employee to be
a member of a majority trade union before employment). Pre-entry closed shops are not allowed
in South Africa
• 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. the employer must deduct an agreed agency fee from the salaries of the
employees identified in the agreement. In this regard note the following:
- it may be deducted only from those who are not members of the union but who are
eligible for membership
- conscientious objectors to the policies of the union (on religious or moral grounds) must
pay the fee which, in turn, must be paid into a fund administered by the DoL
- the fee that non-members pay cannot be higher than the subscription fee payable by all
members of the majority union
- agency fees are paid over to a separate account and can be used only for the benefit of
all the employees at the workplace

(c.). An employer can therefore refuse to reveal information if they feel it is not relevant to the outcome
for which the union seeks the information. Employers need not disclose legally privileged information,
or where they are bound by a court order or would be contravening a law. Employers need not disclose
information about an employee that is private and for which they have no consent to disclose.
Employers need not disclose information that could cause substantial harm to an employee or 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
thereafter 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). 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 employers’ organizations

(b). (i). for the purposes of remedying a grievance or resolving a dispute in respect of any matter of
mutual interest between an employer and employee.

(ii). 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.

(iii). To promote or defend the socio economic interests of workers / pursue economic interests.

C.) CONSEQUENCE 1: INTERDICT

If a strike or lock-out does not comply with section 64 and section 65, the Labour Court has the
jurisdiction to grant an interdict or an order restraining the person from participating in, or acting in the
furtherance of an unprotected strike or lock-out. The Labour Court has exclusive jurisdiction in this
regard.

CONSEQUENCE 2: 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. It must be proved that
the strike or lock-out caused the need for compensation.

In deciding whether to grant the order for payment of compensation, the Labour Court must have regard
to:

• whether attempts were made to comply with the provisions of sections 64 and 65
• the extent of those attempts, and
• whether the strike or lock-out was premeditated.

CONSEQUENCE 3: DISMISSAL OF STRIKERS

Strikers, who participate in an unprotected strike, or certain forms of conduct in the contemplation or
furtherance of an unprotected strike, may be dismissed. It must be substantively and procedurally fair:

(a) Substantive fairness

The Code: Dismissal requires that the substantive fairness of a dismissal of strikers who
participated in an unprotected strike must be evaluated in light of the following factors:

➢ The seriousness of the failure to comply with the LRA

If there is deliberate and serious non-compliance, dismissal will be fair

➢ Attempts to comply with the provisions of the LRA

If the union and employees genuinely attempted to comply with the provisions of the LRA,
the dismissal will be unfair

➢
➢ Unjustified conduct by the employer
Any unfair conduct by the employer will influence the substantive fairness of a dismissal.
For example: the strike was as a result of an employer’s unfair bargaining tactics

(b) Procedural fairness

The Code: Dismissal requires that the dismissal of strikers engaged in an unprotected strike
must be procedurally fair, and sets the procedure to be followed:

Contact with the union

If strikers are union members, employers are required to contact a union official ‘at the earliest
opportunity’ before dismissing an employee, in order to discuss the course of action the employer intend
to follow. The purpose of this is to give the union an opportunity to persuade the employer not to dismiss
the strikers, and for the workers to return to work.
Using an ultimatum

The employer must give the strikers an ultimatum before dismissing them. The purpose of an ultimatum
is to convince strikers to return to work. The ultimatum must comply with the following requirements:

• the ultimatum must be communicated to the strikers in a medium they understand, and if
necessary, in their own language
• the ultimatum must be clear and unambiguous, leaving no doubt as to what is expected from
them
• the time set must be reasonable
• if the ultimatum is communicating to a collective bargaining representative (a union
representative) within a reasonable time, it will constitute sufficient notice to employees

if the strikers comply with the ultimatum, the employer cannot dismiss them, if they do not the dismissal
will be deemed procedurally fair.

(d). 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
• 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.

MRL3702 MAY-JUNE 2017_MEMO

QUESTION 1
1.1 Distinguish between employee and independent contractor
[10]
An independent contractor is;
• A person who is contracted
• To perform a specific task or to produce a particular result
• Who works for his own account
• For example a doctor with his own practice

An employee on the other hand

• Is a person who is appointed
• To tender his personal services in terms of a particular job description
• And earns a salary
 • For example a doctor at a medical centre or government hospital
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 conlusion of a valid contract. The
following are the requirements of a valid employment contract;
• There must be consensus between the parties
• Parties should have necessary capacity to contract
• Performance under the contract must be physically possible
• Agreement must be legally possible and must be lawful
• 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]
A labour broke is demeed to be the employer of any person whose services have
been acquired for, or made available to a client for a reward. This results in a three
way relationship namely the demeed employer, the client (de facto employer) and
the employee. This relationship limits the risks and responsibilities of the de facto
employer thus the labour broker will bear all the responsibilities associated with
employers. However the labour broker and the de facto employer may jointly and
severally be held liable in breach of collective agreements, the BCEA or the an
abitration award.
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
of adoptive child/spouse/life partner/grandparent or sibling
QUESTION 2
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.
i) Who are designated employers in terms of EEA? 10]
Designated employers are employers;
• With large enterprises of 50 or more employess
• Employers who have less than 50 employees but their annual turnover in any given
year exceeds that specified in Schedule 4 of the EEA
• Municipalities
• Organs of state eg, Telkom, Post Office, SABC etc
• Employers who are designated as such in terms of a collective agreement

2.2 Discuss the unfair conduct of the employer relating to promotion as a form
of unfair 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 employer 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
employment relationship is impossible
• 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

ii) Assuming that Sambo was not found guilty of any misconduct and that after
the disciplinary process he resigned from Sambo Supermarket allege that he was
constructively dismissed. Advise Sambo on what constructive dismissal entails. [4]
3.2 What are the four requirements for the registration of Trade Unions prescribed
by section 195 of the LRA [4]
3.3 What are the three important elements that distinguish a collective
agreements from any other agreement between employers and employees.[6]
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
ii job grading [4]
Question 4
4.1 Discuss the no work no pay rule and indicate whether it applies to both
protected and unprotected strikes [8]
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, but 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]
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]
4.3 What is the difference between a strike and a protest action? [4]
MRL3702 OCT-NOV 2017_MEMO

QUESTION 1

(a). Trade unions may acquire organisational rights in the following ways:

• collective agreement
• membership of a bargaining council
• strike action
• 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 of 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). According to this doctrine an employer is liable for the unlawful or delictual acts of an employee
performed during the course of business
The operation of this doctrine is regulated by the common-law and not by employment legislation
It is based on the principle that the employer (who by its profitable operation creates a risk of harm to
others), has to compensate those who suffer injury as a result of the wrongful conduct 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.

CASE LAW: 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 left 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 it further his
boss’s affairs by doing so
• The passenger’s presence added nothing to the interest of the employer in the proper
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.

(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 correct 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 of 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 will
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. It 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). (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 financial
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.

CASE LAW: 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 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.

(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 of
substantive fairness which should be used to in determining whether a large scale retrenchment by big
employer is substantively fair as follows: the dismissal was to give effect to a requirement based on the
employer’s 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 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.

CASE LAW: 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 employer 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 of unfair
dismissal:

• the employee must show that he/she has resigned

• the employee must show that the reason for the resignation was that continued employment
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 liquidator 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 of such
termination
• in the case of insolvency of the employee, he/she may continue working only with permission of
the trustee

(d). 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 part 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.
Discriminatory acts are part 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.

(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.) (i). Occupational detriment: is the subjection of an employee to any of the following as a result of
“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 general principles of
these two overlap to some extent.

The “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 information must be disclosed: suspicion, rumors and personal opinions do not constitute
“information”

The employee must make the disclosure:

• in good faith, and

• reasonably believe
• that the information disclosed is substantially true
CASE LAW: Theron v Minister of Correctional Services & another

The disclosure on poor health care of prisoners made by a prison doctor to the Inspecting Justice of
Prisons and the relevant Parliamentary Committee was held to be a protected disclosure.

(iii).

QUESTION 4

(a). 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 interest
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 different employers),
and

• 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 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
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-out? Yes

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, firefighting
and correctional services.
‘Maintenance service’ is defined as: ‘…the interruption of that service that has the effect of material
physical destruction to any working area, plant or machinery’
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.

MRL3702 MAY-JUNE 2016_MEMO

Question 1
a) List the (4) four common law duties of the employer and four (4)
common law duties of the employee. [8]
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
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 employment 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 of 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, after transfer provided the employee with conditions
or circumstances at work that are less favourable than those provided
by the old employer

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]
Victimisation – is when an employee is victimised or intimidated for failing to
submit to a sexual advance
Quid pro quo – is where management coerces employees to surrender to
sexual advances in order to be promoted or other benefits
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]
Non variable core terms are;
Maximum working hours
Provisions relating to sick leave
Four months’ maternity leave
Not less than two weeks’ annual leave
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]
The following three possible outcomes are available at the end of a
probation;
Extending the probation period in order to enable the employee to
improve his performance
To dismiss the employee
To confirm the appointment of the employee
iii) After the business has been in operation for some time, 5 of its
thirty nine 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
• 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 dismissal 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
ii) The right to have trade union membership fees deducted by the way of
a stop order
iii) The right to elect trade union representative i.e. shop stewards
iv) The right of trade union representatives (shop stewards) to get time off
for trade union activities
v) The right to disclosure of information
If the union has a majority representation that is of 51% and above it is
entitled to all five organisational rights.
If a trade union has sufficient representation it will enjoy three rights namely i,
ii and iv
Minority union may enforce rights through collective bargaining
Union is a member of bargaining council automatically gets right to access the
workplace and fees deducted.

Question 4
a) The LRA encourages collective bargaining, but does not compel parties
to bargain, and if 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.

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 of the strike would be to remedy a grievance or
resolving a dispute in respect of any matter of a mutual interest between the
employer and the employee. On the other hand a protest action is partial or
complete refusal to work by a number of employees but the purpose is
promoting or defending socio-economic interests of workers.
MRL3702 OCT-NOV 2015_MEMO
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 permanent 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 employment (unfair labour practices) and against unfair dismissal. This
duty is wide enough to include other common law duties such as the duty to receive
the employee into service and to comply with other 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 employer 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 of unfair dismissal:
• the employee must show that he/she has resigned
• the employee must show that the reason for the resignation was that
continued employment become intolerable, and
• 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 another 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 other 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.
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, goodwill and business connections. It prevents the employee from
competing with his or her employer 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 of 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) 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.
iii. 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) Absent without leave (AWOL) is when an employee does not want to terminate
the employment 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 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 that 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 not 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 agreement 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 not 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
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:
Plant level - this takes place between the employees and the employer for/in a
specific plant or factory.
Sector level - this takes place in a specific sector of the economy in a specific
geographical area.
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;
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;
• Terms and conditions
• Relationships of employers to employees and vice versa
Employees who are not members of registered unions are bound if;
• They are identified in the agreement
• The agreement expressly binds them
• 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 part 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 of 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 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

MRL3702 MAY-JUNE 2015_MEMO

Question 1
a) List the 3 categories of non-standard employment [3]
An employee who is on any other basis other full time or indefinite period
Part-time workers
Contract workers
Self employment
Seasonal workers
Fixed term
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 prevent an employee from
competing with his employer within a specific area and specific period.

a) 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 labour 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 for that position.
An employer cannot engage a foreign national in work that is contrary to the
terms of his/her work visa

b) 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

c) 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
professional council. A leave cycle is calculated as the number of days an
employee normally work during a 6 week cycle.

d) What is the difference between differentiation and discrimination for

purposes of employment equity? [6]
In Harksen v Lane the court drew a distinction between differentiation and
discrimination. It held that differentiation is treating people differently but
doesn’t necessarily constitute discrimination and that it will be acceptable
where it is based on a valid ground and serves a legitimate purpose. On the
other hand discrimination is a form of differentiation which is based on
unlawful or illegitimate grounds.

e) 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 of 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 their 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 contract [5]
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 of 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]

b) AAF is a trade union registered in terms of the LRA AAF has members
employed in Steel 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 it can
acquire organisational rights in Steel and Aluminium. Advice AAF. [8]
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 council 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 it 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.
• 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
iii) A certificate of the outcome must be issued
iv) 30 days must have passed from date of referral to conciliation
v) At 48 hours’ prior written notice must be given to the other party.
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.
j) 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:
a) If the protest action has been called by a registered trade union or a
federation of trade unions
b) The registered trade union has served a notice on NEDLAC stating
• Reasons for the protest action
• The nature of the protest action
c) 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
d) 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 against civil claims and dismissals.