2014

Labour Law EXAM PRACTICE

Table of Contents
Part 1 Questions ........................................................................................................................ 1
Part2 questions.......................................................................................................................... 7
Part 3 questions....................................................................................................................... 10
Part 4 questions....................................................................................................................... 12
Part 5 questions....................................................................................................................... 13
Part 6 questions....................................................................................................................... 17
Part 7questions........................................................................................................................ 18
Part 8 questions....................................................................................................................... 23
Part 9 questions . ..................................................................................................................... 26
Part 10 questions..................................................................................................................... 30
TRUE or FALSE Questions ........................................................................................................ 34

Part 1 Questions

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1. David Moyes works for Right Auto Services, a company carrying on business in
Pretoria, doing mechanical repairs. On commencing with his employment, David Moyes,
signed a contract which had the following heading:

"Independent Contractor: Memorandum of Agreement". With a monthly fixed salary, David

Moyes is required to work from 7h30 until I7hOO, however he could also be summoned to
work overtime. Although he is employed as a mechanic, at times he is asked to sweep the
workshop floors. From time to time his work is inspected by Jose .

One day whilst working on a vehicle, he suffers serious head injuries when the bonnet of a
car is ripped of by a gust of wind. He claims compensation from the compensation
commissioner in terms of the Compensation for Occupational Injuries and Diseases Act,
1993.

His claim is repudiated on the ground that he is not an 'employee' as defined by the Labour
Relations Act, 1995.

1.1 Discuss whether David Moyes is an employee or an independent contractor.

In a separate incident, a heated argument erupts between David Moyes and Tip's
regarding the quality of the repairs to Tips' car. During this altercation David Moyes
breaks the windscreen of Tips' car.

Control Test - his work is inspected by Jose from time to time.

Organisation test - David Moyes is part & parcel of employer's organisation.

Dominant Impression test –

 The employer has the right to supervise the other person (David Moyes)
 Whether the worker is required to devote specific time to his/her work, etc.

the new presumption section 200A - until the contrary is proved, a person who works for,
or renders services to, any other person is presumed, regardless of form of contract, to be
an employee, if anyone or more of following factors are present: list (a) to (g).

1.2 Will Right Auto Services be vicariously liable for the damage caused to the
windscreen? Discuss (5)

Before Right Auto Services will be held liable for the acts of David Moyes, the following
prerequisites must be met.

There must be a contract of service between the employer and the employee at the time
the employee committed the unlawful act.

The conduct of employee must be unlawful

The employee must have acted in the course of his duties.

Therefore, Right Auto Services will be held liable for the acts of David Moyes.

2. Name the three requirements which must be met before an employer can be held
vicariously liable for the actions of an employee.(3)

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

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  There must be a contract of service between the employer and the employee at
the time the employee committed an unlawful act.
 The conduct / act of employee must be unlawful (IOW – it must comply with the
requirements for a delict),
 The employee must have acted in the course of his duties or service.

3. What are the effects of a "restraint of trade" clause in a contract of employment?

(4)

'ROT’ used to protect the employers business from competition from ex-employees.

A clause will be inserted into the contract which restrains the employee from competing
with the employer after his employment is terminated.

This clause is one that prevents the employee from exercising his trade, profession or
calling, or engaging in the same business venture as the employer, for a specified period
and within a specified area.

In most cases the employee is in a weaker bargaining position and will not be really able to
negotiate the terms of the contract -the employee will just have to accept the restraint of
trade.

The courts are aware of this problem & have formulated rules to deal with it.

The decision in the case of MAGNA ALLOYS is still the leading case on the question of ROT
and, in that case the court, in essence, held that:

i all contracts in ROT are on the face of it, valid and enforceable; but

ii Any contract which is unreasonable or contrary to public policy is unenforceable.

4. After concluding an employment contract, the employer must receive the employee
into service. Does this imply that the employer has a duty to provide the employee with
tasks to perform? Discuss and substantiate your answer. (4)

In general, no duty on an employer to provide an employee with work, except where

 the employee's wage depends on the work provided by the employer in the
Faberlan case failure by employer to provide work in these cases will amount to
breach of contract.

 the employee requires work in order to maintain or develop skills or for publicity
(i.e. actress)

 Special relationships or circumstances exist in the Steward case: A director who

was also an insurance agent was told not to come to work / use his office for 6
months while on notice of termination of service. Held that this amounted to
fundamental breach of contract – it was prejudicial to his future prospects of
finding work again in the insurance field + amounted to degradation of his status
= companies action didn’t terminate the contract, but gave employee a choice to
either stand by the contract / terminate it.

5. Name the essential elements of the employment contract. (4)

 a voluntary agreement

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  between two parties (employer & employee)

 in terms of which the employee places labour potential at

 the disposal & under the control of employer.

 in exchange for some form of remuneration by the

employer.

6. An employment contract is the basis of an employment relationship between an

employer and an employee. What are the requirements for a valid employment contract
(4)

 voluntary agreement between two parties

 in terms of which the employee places labour potential

 at the disposal and under the control of the employer,

 in exchange for some form of remuneration by employer.

7. Define the following categories of employees:

7.1 A piece-worker; (1)

If a person works for a non-profit organisation and is paid by the organisation, she would
normally be regarded as an employee of that organisation.

But a volunteer charity worker who is not paid will probably fall outside the scope of part
(a) of definition.

However, if a volunteer charity worker, assists in ‘any manner' in the conducting or

carrying on of business of employer, would fall within the ambit of part (b) of
definition.

7.2 A casual employee. (1)

Casual workers are normally regarded as temporary employees, and they are
usually employed on a daily basis.

A casual worker is generally deemed to be a person who

works for the same employer on not more than 3 days per week. (Some cases may be
difficult to distinguish between a casual temporary employee and a permanent part-time
employee).

8. Discuss an employee's duty to promote the employer's business and to act in good
faith. (4)

The employment contract is based on trust and confidence. The duty to act in good faith is
described as a common law duty, because this duty is inherent in every contract of
employment.

CONFIDENTIAL INFORMATION

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An employee is entitled to make use of any general knowledge which he acquired in the
course of employment However, unauthorised use of confidential information amounts to
a breach of good faith, irrespective of whether it occurred during or after his employment.

PROMOTING THE EMPLOYERS BUSINESS

The employee must devote his hours doing the work of employer. Secondly, the employee
may not work for another employer at the same time if the employer's interests are in
conflict

NO COMPETITION WITH THE EMPLOYER

An employee who Is about to resign, cannot solicit the employers customers and persuade
them to do business with him This breach can also occur where he persuades fellow
employees to resign & join him in his new business venture.

DISHONESTY

the employment relationship is based on trust and confidence Therefore, fraud or theft on
the part of employee will amount to a breach of good faith

Likewise, if a worker obtains secret commissions while doing the work of employer, it
would also amount to a breach of good faith A serious breach of duty to act in good faith
will entitle the employer to summarily (dismissal without notice) dismiss the employee,
and may even sue for damages.

9. What common law remedies are available to the innocent party if the other party to the
contract of employment fails to carry out his or her obligations in terms of the contract? (4)

If the breach is serious enough, the employee has a choice of whether to accept the
employer's repudiation of contract and to terminate the contract immediately or to
enforce the contract.

Therefore from the above, our first remedy is: Termination (cancellation) of employment
contract.

If the breach of contract is not serious enough to warrant summarily termination, the
innocent party may still claim damage.

When termination has occurred, the innocent party has a choice of following 2 options:

 Specific performance of employment contract

The courts are reluctant to order this remedy as this may create tension between the
parties

OR

 The innocent party may claim damages as a result of the breach

Innocent party may claim damages irrespective of whether or not he elects to terminate
the contract.

11. An employment contract is the basis of an employment relationship between an

employer and an employee. What are the requirements for a valid employment contract?
(5)

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  voluntary agreement between two parties
 in terms of which the employee places labour potential at the disposal and
under the control of the employer.
 in exchange for some form of remuneration by employer.

12. After an agreement, an employer is required to receive an employee into service.

12.1 Is an employer compelled to provide the employee with tasks to perform? Motivate
your answer (2)

 Generally, the employer has no duty to provide the employee with tasks to
perform if the employee tenders his or her services.AS long as the employer
pays the employee the remuneration agreed upon, the employer will not, as a
rule, be breaching the contract of employment if the employee is left sitting
idle.

12.2 Are there any exceptions to this rule? Discuss. (3)

Yes, there are.

 The court held where the employee's wage depends on work being provided
by the employer - for instance where the employee is remunerated on a
commission basis - the employee must be provided with work & failure on the
part of employer to provide work will amount to a breach of contract.
 A similar right to be provided with work may arise where the employee
requires the work in order to maintain or develop skills or where an actor for
example who is not provided with work will lose publicity.

13. An employee has to act in good faith towards an employer. Name the four elements /
examples of this duty. (4)

 Confidential information
 Promoting the employers business
 No competition with the employer
 Dishonesty

14. What is a 'restraint of trade'? Discuss briefly and refer to case law. (3)

 This is used to protect the employers business from competition from ex-
employees.
 A clause will be inserted into the contract which restrains the employee from
competing with the employer after his employment is terminated.
 This clause is one that prevents the employee from exercising his trade,
profession or calling, or engaging in the same business venture as the
employer, for a specified period and within a specified area.
 In most cases the employee is in a weaker bargaining position and will not be
really able to negotiate the terms of the contract -the employee will just have
to accept the restraint of trade. The courts are aware of this problem and have
formulated rules to deal with it.
 The leading case in this regards is MAGNA ALLOYS & RESEARCH. Determining
the validity of clause in restraint involves the balancing of interests and 2 vital
considerations. Firstly, public interest requires that the parties should comply
with their contractual obligations even if it is unreasonable & unfair.
 Secondly, the interest of society emphasis's the fact that a person's freedom of
trade or his ambition to pursue a profession should not be restricted.

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15. What is Vicarious liability'? Discuss briefly and refer to case law. (3)

 This means that the employer is held liable for the wrongful acts of its employees.
 But before an employer can be held liable for the acts of its employees, the
following prerequisites must be met.
 There must be a CONTRACT of service between the employer & the employee at
the time the employee committed the unlawful act.
 The conduct I act of employee must be unlawful (IOW - it must comply with the
requirements for a delict) The employee must have acted in the course of his
duties or service.

16. What are the essential elements of a contract of employment?

Repeat of Question 5.

17. Define the following categories of employees:

17.1 A temporary employee

 They are employed ito a fixed term contract of employment, either for a
specified period of time, or for a specific project. Such contracts are further
entered into on the understanding that it will be for a specific period or
project.

A casual employee
Repeat of Question 7.2

Part2 questions

1. What categories of employees are excluded from the provisions of Part2 (regulating
working time) of the Basis Conditions of Employment Act, 1997? (3)

 Members of SANDF, the National Intelligence Agency, & the SA Secret Service.
 Unpaid volunteers working for an organization serving a charitable purpose
 Persons undergoing vocational training of which there terms of employment
are regulated by other legislation
 Persons employed on vessels at sea iro which the Merchant Shipping Act
applies.
 Independent contractors

2. When and for how long can family responsibility leave be taken? (4)

 Section 27 of BCEA provides for 3 days' paid family responsibility leave during each
annual leave cycle.
 The employee is, in terms of BCEA. entitled to take this leave on the birth, illness
or death of a child, the death of employee's spouse or life partner, parent, and
other immediate family members.

3. At what rate are the following remunerated, in terms of the Basic Conditions of
Employment Act, 75 of 1997?

3.1 Work on public holiday (1)

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 An employer may not require an employee to work on a public holiday, unless the
parties have agreed otherwise.

If the employee does not work, he or she would be entitled to his or her ordinary
remuneration for that day,

But if the employee does work on a public holiday, the employer must pay at least
double the employee's ordinary wage for every hour worked.

3.2 Overtime (1)

11/2 times normal rate.

4. Section 41 of the Basic Conditions of Employment Act, 75 of 1997 provides for the
payment of "severance pay".

• 4.1 Under which circumstances must an employer pay an employee

severance pay? (1)

if an employer dismisses an employee for operational reasons.

4.2 How is "severance pay" calculated? (1)

the employer must pay the employee severance pay equal to at least one week's
remuneration for each completed year of continuous service with that employer.

5. Discuss the effects of the provisions of the Basic Conditions of Employment Act,
1997 on an employee's contract of employment. (5)

The purpose of BCEA is to advance economic development and social justice by

giving effect to and regulating the right to fair labour practices.

The BCEA tries to achieve these objectives by establishing and enforcing basic
conditions of employment & regulating the variation of basic conditions of
employment.

The BCEA also performs a balancing act - protecting employees, on the one hand,
while also taking into consideration the employer's need for flexibility.

Some of the effects of BCEA: Regulates Working time

i. ordinary hours of work(Ordinary working hours: Section 9

if an employee works for
 5days / week: he is entitled to work 45 hrs. / week and 9 hours per
day
 +5d / week: he is entitled 8 hrs. per day but Can extend by 15 mins
/ d or 60 mins / wk by agmt btw the parties

ii. Meal intervals (Section 14):

• 1 continuous hr / 5 hrs worked

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 • During meal interval employee may be asked to perform / be
available to perform duties that can’t be left unattended / performed by
another + must be remunerated

iii. Meal intervals and rest periods

iv. overtime

v. Sundays, public holidays, and night work

Leave

 annual leave(21 consecutive days / annual leave cycle

Parties can agree to 1 day / 17 days worked/entitled to be paid; OR 1 hr / every 17 hrs

worked / entitled to be paid

• Sick leave

• Maternity and family responsibility leave

Particulars of employment and remuneration

 provide written particulars about employment

 provisions relating to remuneration

Termination of employment

 notice periods
 Severance pay

6. At what rate are the following remunerated in terms of the Basic Conditions of
Employment Act, 75 of 1997?

6.1 Overtime. (1)

Repeat question

6.2 Sunday work. (1)

If an employee does not normally work on a Sunday & the employer requires the
employee to work on a Sunday,

The employee must be paid double his hourly wage.

If the employee normally works on a Sunday the employer must still pay a premium - one
and a half time's the employee's wage for each hour worked.

7. When can a family responsibility leave be taken? (3)

Employee entitled to take this leave on the birth, illness or death of a child, the death of
employee's spouse or life partner, parent and other immediate family members.

8. Which categories of employees are excluded from the provisions of Part2

(regulating working time) of the Basic Conditions of Employment Act, 1997? (3)

Repeat of Question 1

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Ways to determine if employment contract, collective agreement or BCEA applies

1. Consider whether the BCEA apply to employee? General exclusions and Partial
exclusions must be considered if the answer is yes

2. Does BCEA deal with the issue under consideration? If the answer is yes

3. Is there any other law / an employment contract / collective agreement that are
more favourable? If the answer is yes

4. Collective agreement takes precedence – if no collective agreement, then contract

takes precedence

5. If your answer at 3 was no

6. Is minimum standard permitted to be changed unfavourably ito BCEA? If the

answer is yes then 4 will apply but if the answer is no

7. BCEA takes precedence – S5: parties cannot contract out of BCEA, regardless if
agreement entered into before / after commencement of BCEA.

8. If your answer to 1 was no

9. BCEA takes precedence – S5: parties cannot contract out of BCEA, regardless if
agreement entered into before / after commencement of BCEA

Part 3 questions

1. Discuss constructive dismissal as a form of dismissal in terms of section 186(d) of the

Labour Relations Act, 1995. (5)

The essential feature of constructive dismissal is that the employee terminates the
employment contract but this resignation is not entirely voluntary it is caused by the
actions or omissions of employer.

From the perspective of common law, it looks like a resignation or a termination of

employment contract by the employee, but it is in fact a dismissal by the employer o The
requirement that the employer should have made continued employment -tolerable' has
narrowed the ambit of constructive dismissal.

The employee by resigning ~ indicating that he would have carried on working indefinitely
had the unbearable situation not been created.

The test for constructive dismissal was reinstated by the labour court in the recent case of
RUSTENBURG PLATINUM MINES

The court held that in order to succeed on a claim that he has been constructively
dismissed, the employee must be able to prove the following:

1. the employee terminated the contract,

2. continued employment was intolerable,
3. the intolerability was of employer's making,

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 4. The employee resigned as a result of intolerable behaviour of employer.

2. Discuss the meaning of "dismissal" in terms of section 186 of the Labour Relations Act
of 1995. (5)

1. Dismissal means that-(6)

2. an employer terminated a contract without notice;

3. an employee reasonably expected the employer to renew a fixed term

contract of employment on the same or similar terms, but offered to
renew on less favourable terms, or did not renew it;

4. An employer refused to allow an employee to resume work after she

took maternity leave ito any law, collective agreement or her
contract employment

5. selective re-employment (an employer dismissed a number

of employees' for the same or similar reasons, and offered to re-
employ 1 or more of them and refused to employ the others)

6. An employee terminated her contract of employment with or without

notice because the employer made continued employment
intolerable for the employees;

7. an employee terminated a contract with or without notice because

the new employer, after transfer ito s197 or s197A, provided the
employee with conditions or circumstances at work that are less
favourable of employee than those provided by the old employer.

3. Section 186(2) (b) of the Labour Relations Act, 1995 protects employees against
unfair suspensions. What is the difference between a preventative suspension and a
punitive suspension? (2)

A preventative suspension occurs where disciplinary charges are being

investigated against the employee and the employer wants to suspend the
employee pending the outcome of the enquiry, reason being to remove the
employee from the workplace so that he does not interfere with the
investigation or intimidate witnesses.

A punitive suspension is imposed as a disciplinary measure short of dismissal

after the hearing has been held.

4. Discuss selective re-employment as a form of dismissal in terms of section 186 (d) of the
Labour Relations Act, 66 of 1995. (4)

In a sense the employment relationship continues even after the employment

contract itself has been terminated.

For this form of dismissal, there are a number of implied requirements:

 the employees concerned must have been dismissed for the same or
similar reasons
 there must have been a dismissal

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  the employer must have offered to re-employ 1 or more of previously
dismissed employees
 and at the same time refuse to re-employ 1 or more of other previously
dismissed employees.
 thus if a previously dismissed employee is unaware that an offer has
been made to re-employ other dismissed employees, and does not seek
re-employment there may be no refusal to re-employ that employee, and
therefore no 'dismissal1 as for the purposes of s186(1)(d) of LRA.

Part 4 questions
1. List three justification grounds for discrimination. (3)

The employer may in certain circumstances show that the discrimination was fair because of
inherent requirements of job or because of age of employee and Affirmative Action.

2. Section 187 of the Labour Relations Act. 1995 makes provision for automatic unfair
dismissals

2.1 What is an "automatically unfair" dismissal? Explain and give one example. (2)

A dismissal is automatically unfair if the employer, in dismissing the employee, acts

contrary to section 5, or if the dismissal is -

that the employee participated in or supported, or indicated an intention to participate in

or support, a strike or protest action that complies with the provisions of part4.

2.2 Which automatically unfair dismissal allows for a statutory

defence? (1)

Section 187 (2) allows an employer a defence to section 187 (1) (f) that the employer
unlawfully discriminated against the employee, directly or indirectly on the grounds of,
but not limited to race, sex, age, gender, religion, sexual orientation, HIV etc.

2.3 What are the statutory defences available for this type of
automatic unfair dismissal? (2)

a dismissal may be fair if the reason for dismissal is based on inherent requirements of
particular job; a dismissal based on age is fair if the employee has reached the normal or
agreed retirement age for persons employed in that capacity.

3. In automatically unfair dismissals, the employer has no right to defend the dismissal
of an employee by proving that it was for a fair reason. What are the exceptions to this rule
with regard to a dismissal based on a discriminatory ground permitted by section 187(2) of
the Labour Relations Act, 66 of 1999). (2)

Same answer as 2(ii) and the employee must show that there was a dismissal and that the
dismissal was for an automatically unfair reason ito s187(1) if a dismissal is based on one
of discriminatory grounds mentioned above, the employer may have a defence ito s187(2)

4. The employer may dismiss the employee and allege incapacity as the basis of the
dismissal. What are the three types of incapacity? (3)

poor work performance ill health / injury incompatibility

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Part 5 questions

1. Discuss the substantive fairness requirements of an employee's dismissal based on

misconduct. (5)

Contravention of a rule by an employee

i. did the rule exist

an NB source of disciplinary rules is the written disciplinary code or rules of conduct.

Rules regulating the conduct of employees may also be derived from legislation
(Occupational Health & Safety Act) another NB source for rules regulating the conduct of
employees at the workplace is the common law.

ii. was there a contravention of rule?

the employer must prove that the employee has contravened the rule.

Validity and reasonableness of rule

A rule will be valid and reasonable if is lawful & can be justified with reference of needs &
circumstances of business. One of factors which may determine whether or not rule is
justified is the nature of employer's business & circumstances in which the business
operates.

The employee's knowledge of rule

best way to inform employees is through a written disciplinary code.

Knowledge of a rule may also be ensured through meetings with workers, written briefs,
notices on notice boards, induction programmer’s for new employees.

Consistent application of rule

the employer must be consistent when meting out discipline, two types of inconsistency,
namely historical and contemporaneous inconsistency e.g. of each

Dismissal as appropriate sanction

the factors must be considered and weighed up together to decide whether dismissal is
justified, or less severe sanction would be appropriate

i. the gravity of the misconduct,

ii. the circumstances of infringement itself,

iii. the nature of employee's job.

iv. the employee's circumstances,

v. other employee's have been dismissed for the same offence.

2. Ms XY has been in the employment of ABC Bank for the last 10 years. She holds the
position of branch administrator and her duties include control of the attendance register.
Ms XY requests a day's leave but fails to complete the required leave form. On the day

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following her day's leave, she makes an entry in the attendance register reflecting not only
that she has been present the previous day, but that she had also worked two hour's
overtime.

Subsequently these facts come to light and ABC Bank wants to investigate the matter and
take disciplinary action against Ms XY. Against this background, advise ABC Bank with
reference to applicable legislation and case law, on the following aspects:

2.1requirements for a fair procedure, if ABC Bank wants to discipline Ms XY for

misconduct. (8)

Repeat of Question 3.

2.2 factors to be considered if ABC Bank wants to dismiss Ms XY based on misconduct.

(8)

i. the gravity of the misconduct

1. circumstances surrounding the commission of offence

2. the nature of work performed by the employee

3. the nature and the size of employer's workforce

4. the position which the employer occupies in the

market place and its profile in the market

5. the nature of work and services rendered by the

employer

6. the relationship between the employee & the victim

7. the impact of misconduct on the workforce as a whole

ii the circumstances of infringement itself

iii. the nature of employee's job

iv. the employee's c/ stances

v. other employees have been dismissed for the same offence

2.3 Suppose ABC Bank believes that Ms XY's actions caused a breakdown in their trust
relationship. What are possible grounds on which Ms XY may be disciplined? Substantiate
your answer. (9)

ABC can use S188, operational requirements dismissal; using a similar need called
breakdown in the trust relationship ABC, however, need to prove substantive
and procedural fairness.

Substantive fairness includes the reason for the dismissal and if the facts show
that, on a balance of probabilities, that the duty of good faith and trust an
employee owes his employer is breached, the employee is guilty of misconduct
and if the misconduct is serious, the employee, can be dismissed.

If, however, the employer is unable to prove such a breach, due to insufficient
proof, but is still suspected of having done so, or he may do so in the future, the

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 employer may use operational requirements if he can prove the mistrust is
counter-productive to the business.

If ABC can prove Ms XY's actions caused this suspicion and are counter
productive to the operation of his business, he will still need to prove procedural
fairness, i.e. consultations, hearing alternatives to dismissal etc.

Other alternatives to operational requirements dismissal, is warnings,

suspensions with / without pay demotions and transfers - all of these, the
employer will have to prove are fair and appropriate.

2.4 In determining whether a dismissal for misconduct is unfair, one of the factors to be
considered is "whether or not the rule contravened by the employee has been consistently
applied by the employer". Distinguish between historical inconsistency and
contemporaneous inconsistency. (2)

HISTORICAL INCONSISTENCY

Occurs where the employer has in the past not proceeded against employees
when they have contravened a certain rule, but then suddenly decides to
proceed against an employee for contravening that rule. The unfairness of this
type of inconsistency is that the employer's failure to proceed against employees
in the past has created the impression that contravention of particular rule was
not regarded as misconduct.

However, the fact that an employer has condoned certain types of misconduct in
the past does not mean that action cannot be taken against employees in the
future for such misconduct.

CONTEMPORANEOUS INCONSISTENCY

Is where employees who breach the same rule simultaneously or roughly the
same time, are not all disciplined.

the unfairness is based on the proposition that similar cases should be treated
similarly.

if the employer does not do this, the inference may be drawn that the employer
administers discipline in an arbitrary or discriminatory way.

However, inconsistency will not always be unfair, (e.g. length of service,

disciplinary records).

3. Discuss the procedural guidelines for a fair dismissal based on misconduct. (6)

Item 4

Investigation - employer must conduct an investigation to determine

whether there are grounds for dismissal. Enquiry may be held in an informal
manner.

Notice of charge and the investigation - the employer must notify the employee
of allegations

and employer must use a form and language that the employee can reasonably
understand.

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 Reasonable time to prepare a response - the nature and complexity of charges
will certainly be relevant in ascertaining whether the employee has had sufficient
opportunity to prepare his / her response, and whether employee had assistance
would also be relevant.

Employee entitled to state a case in response - employee may dispute the facts
on which the charges are based (iow - plead not guilty of charges)

or the employee may plead guilty of charges but argue that dismissal is not the
appropriate sanction.

The employee is entitled to assistance - the employee is entitled of assistance of

a trade union representative or a fellow employee during the enquiry, but not
the assistance of a legal practitioner such as an advocate or an attorney.

The decision - the decision whether an employee is guilty of alleged misconduct

and what the penalty should be where the employee has been found guilty, is
the responsibility of chairperson of disciplinary enquiry.

Final decision with senior management.

Communicating the decision - employer must communicate the decision taken

and preferably done in writing.

The employee must be informed of reason for dismissal. Appeal

Item 4 does not make provision for an employee to appeal to a higher level of
management

if the employee is dissatisfied with the finding, the employee must implement
the dispute settling procedures provided by the LRA.

4. In Nampak Corrugated Wadeville v Khoza (1999) 20 ILJ 578 (LAC) the following was
remarked with regard to whether dismissal is the appropriate sanction for misconduct:

The determination of an appropriate sanction is a matter which is largely within the

discretion of the employer. However, this discretion must be exercised fairly'.

The question of whether or not dismissal is the appropriate sanction is a factual one and
remains one of most difficult aspects of workplace discipline.

The Code lists a number of factors that must be taken into consideration.

All of these factors must be considered and weighed up together to decide whether
dismissal is justified, or whether a less severe sanction would be more appropriate.

In Nampak the Labour Appeal court explained the reasonable employer test and held that
the court should not lightly interfere with the sanction imposed by the employer unless
the employer acted unfairly in imposing the sanction. The question is not whether the
court would have imposed the sanction imposed by the employer, but whether in the
circumstances of case the sanction was reasonable.

5. Name four factors which an employer must consider when the appropriateness of a
dismissal as a sanction is considered. (4)

i. the gravity of misconduct

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ii. the circumstances of infringement itself

iii. the nature of employee's job

iv. the employee's circumstances

v. other employees have been dismissed for the same offence

Part 6 questions
1. The principles of substantive and procedural fairness for a dismissal based on ill health or
injury of an employee have been codified in the Code of Good Practice. Name these
guidelines. (6)

Any person determining whether a dismissal arising from ill health or injury is
unfair should consider-

a. whether or not the employee is capable of performing the work; AND b. if

the employer is not capable-

i. the extent to which the employee is able to perform the work

ii. The extent to which the employee's work c/stances might be adapted to
accommodate disability or where this is not possible the extent to which
the employee's duties might be adapted

iii. The availability of any suitable alternative work.

2. Discuss 'incompatibility’ as a form of incapacity. (4)

For some time it was debated whether an employee's incompatibility (inability to

work harmoniously with other employees or to fit in with the corporate culture
of the undertaking or organization) constituted incapacity or a ground for an
operation requirements dismissal.

The employer is obliged to assist an employee, who is causing the disruptions in

workplace relationships before dismissing him or her,

If the employee is a genuine 1 misfit', appropriate warnings and counseling

would be required.

Incompatibility can sometimes manifest itself when a group of employees call for
the resignation or removal or a co-employee.

CCMA commissioners now generally seem to take the view that incompatibility
constitutes incapacity and not operational requirements.

But the debate continues as to whether this is correct.

Employers should not lightly entertain dismissal in such c/stances and will
require a fair reason for the dismissal and must follow a fair procedure.

3. What is the distinction between dismissals on the basis of disability and those on the
basis of incapacity? (5)

The terms incapacity and disability are used interchangeably.

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 An injury at work, or a motor vehicle accident, may result in an employee losing a
limb or being paralyzed.

Either tragedy could mean that the employee will have a serious physical
disability.

Accidents can also cause brain damage resulting in a possible intellectual

disability.

A slow onset illness, like cancer or HIV/AIDS may start a mild incapacity,
developing into a serious incapacity and affecting the employee's ability to
perform in the work situation.

The disease or injury may be work related.

Severe stress or depression, alcoholism or drug abuse may equally affect an

employee in the workplace of extent that the problem is alleged to be an
incapacity or disability.

But a person may have been born with a physical or mental impairment that
others perceive as a disability, and this may prevent that person from being
employed in a particular job.

Yet if certain relatively simple accommodations are made in the workplace, that
person may be employed as an active member of the community.

A dismissal based on incapacity may be fair if the employer has a valid and fair
reason for the dismissal and has followed a fair procedure.

A dismissal based on disability may be automatically unfair, giving the employer

no defence and the judge no discretion.

A dismissal may be fair if the reason is based on an inherent requirement of the

job.

Part 7questions
1. Thamase sells blankets and has employed 10 people to assist him. Due to a high demand
of blankets in and around Pretoria, Thamase decides to start a blanket making factory. He
approaches Quick Money Bank for a loan of R1 000 000 for this venture. The workload has
now increased and Thamase employees 50 more workers. Two years later, Thamase realises
that his factory does not make profit as he thought and resolves to retrench 5 of his
employees. After 7 months, nothing has improved; Thamase is now in deep debt with some
of the suppliers and is unable to repay the bank loan. He now contemplates to retrench
another 5 of his employees based on operational requirements.

1.1 Advise Thamase's employees on what constitutes 'operational requirements' (4)

OR means requirements based on the:

a) Economic - needs relating of well being of enterprise (financial difficulties - down

turn in economy / less demand for product).

b) Technological - intra of new techno - advanced machinery - cause employees -

redundant.

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c) Structural - posts becoming redundant following a restructuring of the
enterprise (merge /amalgamation).

d) Similar - changes to an employee's terms and conditions of

employment, Incompatibility and related reasons, Breakdown in the trust relationship.

e) needs & requirements of the employer

1.2 Advise Thamase on whether the dismissal of the last 5 employees constitutes a
small scale or a large scale dismissal. (6)

Thamase is a big employer as he employs more than 50 (60).

ITO s189A (1) (a) a large scale dismissal would entail the employer dismissing:

10 employees, if the employer employs more than 50 and up to 200, such a dismissal
would constitute a large scale dismissal.

ITO s189A - a dismissal by a big employer of fewer employees than the prescribed
minimum listed above may still constitute a large scale dismissal.

This is the case where the employees to be dismissed, together with the number of
employees that have been dismissed for OR in the 12 months prior to the proposed
dismissal, is equal to the specified number above.

This 12 month period is a so-called 12 month rolling period, the period must always be
calculated backwards.

Thamase's dismissal of the 5 employees constitutes a large scale dismissal as 7 months

prior he already dismissed 5.

1.3 Advise Thamase on the procedural requirements to be complied with if he wants to

dismiss employees based on operational requirements. (5)

Consultation must take place when the employer "contemplates dismissal".

The employer and the other consulting parties must engage in a meaningful joint consensus
seeking process and attempt to reach consensus, must engage in a joint problem-solving
exercise.

Priority is given to collective agreements, if no such agreements then consult with workplace
forum.

E.g. trade union.

If there is both a collective agreement £ workplace forum, then party in collective

agreement must be consulted with.

If no CA / WF or registered trade union, employer must consult directly with employees or

their representative.

Consultation should take place within a reasonable period. The basis of the consultation
process includes topics:

a) measures to avoid dismissals.

b) measures to minimize the number of dismissals.

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c) measures to change the timing of the dismissals.

d) Measures to mitigate the adverse effects of

dismissals.

Employer must disclose all relevant information, but certain info which employer is not
required to disclose.

Big Business is a company specialising in the sale of computer equipment. Big Business has
experienced financial losses due to a drop in sales over the past few months. As a result
thereof Big Business is forced to downsize. Big Business currently has 60 people in its
employment, of which 8 will possibly be declared redundant. The company also had, 6
months earlier, switched to an electronic switchboard resulting in the retrenchment of 4
employees. In light of the above facts, answer the following questions:

2.1 What constitutes "operational requirements"? (4)

Repeat

2.2 Will the dismissal of the 8 employees constitute a small scale or a large scale
dismissal? Motivate your answer. (6)

Repeat Question 1.2.

2.3 What are the procedural requirements for a fair dismissal based on operational
requirements in terms of the Labour Relations Act, 1995? (6)

Repeat

2.4 Big Business would also like to use this opportunity to get rid of Mr. Arrogant on the
grounds of operational requirements The company has received several complaints about
his poor people skills and negative management style. Big Business is approaching
you for advice on their course of action. (4)

An employer's similar needs must be determined with references to circumstances of case.

Incompatibility and related reasons.

The courts have accepted that an employee, whose actions negatively affect the operation
of the business, could be dismissed.

This occurs when certain actions of employee create disharmony amongst co-workers.

In East Rand Proprietary mines - court found that the dismissal had been unfair under the
circumstances but held that it could be fair if the employer could prove that dismissal was
the only option left to ensure the safety of the targeted employees and the continued
well-being of the business.

3. Is 'seniority' an acceptable selection criteria when the retrenchment of employees are

considered? Motivate your answer briefly. (2)

This criterion is called the Mast in first out' or LIFO principle.

Long serving employees are retained at the expense of those with shorter service.

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If retrenchment is to effect only 1 department in an enterprise, the practice is sometimes
to retrench on the LIFO basis and to drain off remaining employees in that department
into other departments.

4. In order for a dismissal based on operational requirements to be procedurally fair,

the employer must consult relevant parties and also disclose relevant information.

4.1 What does consultation mean for purposes of section 189 of the Labour Relations Act,
66 of 1995? (4).

The employer and the other consulting parties must in the consultation envisaged by
subsections (1) (3) engage in meaningful joint consensus seeking process and attempt to
reach consensus on:

a) appropriate measures

i) To avoid dismissals

ii) To minimise the number of dismissals

iii) To change the timing of the dismissals and

iv) To mitigate the adverse effects of the dismissals.

b) the method for selecting the employees to be

dismissed, and the severance pay for dismissed employees.

4.2 Which information is an employer not required to disclose?

Legally privileged information.

Confidential information.

Private personal information relating to an employee.

Limitations and exceptions.

5. 'Operational requirements" mean requirements based on the economic,

technological, structural or similar needs of an employer' (section 213 of the Labour
Relations Act of 1995).

5.1 What are "similar needs"? (4)

Similar needs includes:

Changes to the employee's terms and conditions of employment. Incompatibility and related
reasons and breakdown in the trust relationship.

5.2 What measures can an employer take to avoid dismissals based on the operational
requirements of a business? (4)

The granting of paid and unpaid leave, reducing or eliminating overtime or work on
Sundays, the transfer of employees to other department and training or re-training of
employees to enable them to take up other positions in the organization.

5.3 What is "bumping"? (2)

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If retrenchment is to affect only one department in the organization, the practice is to
retrench on last in first out basis and to drain off remaining employees in that department
to other departments, hence - bumping.

6. Discuss 'bumping' as a method of selecting employees for a dismissal based on

operational requirements. (2)

Repeat of Question 6

7. Very Big Company has 5000 employees. Very Big Company decides to close down
its cafeteria. This will however mean that 40 employees will be redundant. Very Big
Company had also, 6 months earlier, switched to an electronic switchboard and 10 people
were dismissed due to operational requirements.

7.1 What is meant by 'operational requirements' (4)

Repeat

7.2 Will the dismissal of the 40 employees constitute a large scale or a small scale
dismissal? Motivate your answer. (4)

Similar to question 1.2

7.3 What are the additional requirements for procedural fairness (according to section
189 A of the Labour Relations ACL 1995) that a big employer in the case of a large scale
dismissal based on operational requirements must comply with. (4)

Firstly, this section affords either one of parties the right to ask the CCMA to appoint a
facilitator to assist the parties during consultation.

Secondly, this section also introduces a moratorium of 60 days during which the employer
may not dismiss.

7.4 Very Big Company also decides to dismiss Mr. Big, on the grounds of operational
requirements. The company has received several complaints from other employees
about Mr. Big's negative management style and especially his demeaning attitude
towards female employees. Will a dismissal on these grounds be allowed? Motivate your
answer. (3)

This dismissal could qualify under S188 operational requirement dismissal - namely similar
needs. Incompatibility and related reasons is a recognized operational requirements
similar need for a potentially fair dismissal where the actions of an employee creates
disharmony amongst co-workers.

Distinguish between the facilitation route and the non-facilitation route with regard to a
large-scale dismissal by a big employer. You may answer this question by drawing diagrams.
(10)

FACILITATION

The employer may ask the CCMA to appoint a facilitator to assist the parties during
consultation.

Only the CCMA can be approached to appoint a facilitator.

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The employer must make this request when it gives notice ito s189 (3) of employee party
that it is contemplating a large scale dismissal.

IF the employer does not ask for a facilitator to be appointed the employee party
representing the majority of employees that the employer contemplates dismissing may
ask for a facilitator.

Employee party must notify the CCMA within 15 days of employer's notice of
contemplated dismissal of this request.

If neither party ask for a facilitator within the time frames mentioned above, they may ask
for one to be appointed during the consultation process.

The parties may also agree to vary the time periods for facilitation.

IF a facilitator is appointed, facilitation must be conducted ito the regulations made by the
minister of Labour for the conduct of such facilitations.

ITO s189A (7), an employer may not dismiss before 60 days have elapses from the date on
which the employer gave notice ito s189 (3) of contemplating large-scale dismissal.

HOWEVER, once 60 days have elapsed, the employer may give notice to terminate the
contracts of employment to those employees that have been selected for dismissal.

IRO the notice of termination, s37 of BCEA lays down minimum standards.

NON-FACILITATION

If none of parties request a facilitator, s189A stipulates that a minimum period of 30 days,
calculated from the date on which the employer gave notice ito 5189(3) of contemplating
large-scale dismissal, must have elapsed before a dispute about the contemplated
dismissal may be referred to the CCMA or a council for conciliation.

Minimum conciliation period at the CCMA or council of 30 days. Employer may not dismiss
until the 30 day conciliation period has elapsed.

Therefore soonest that employer would be able to dismiss will be after the expiry of both
the 30 day periods.

Thus 60 days from the date on which it gave notice ito s189 (3).

Once 60 day period expired, the employer may give notice of termination of the contracts
of employment of those employees that have been selected for dismissal s27 of BCEA
prescribes the minimum periods of notice.

Part 8 questions
1. Discuss the procedural fairness relating to the employer's conduct in respect of an
employee's promotion and demotion. (3)

The employer must follow its own procedures.

If the employer has a practice and policy of advertising the posts, It cannot,
without a good reason, depart from that policy (Nutesa).

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 If the employer does not follow the correct procedure a new procedure must (as
a rule) be followed.

This means that the entire process of selection and evaluation must be started
from scratch.

An employee may challenge the composition and competency of a selection

panel.

In this regard, the CCMA has held that all that is required is that the persons on
the panel should be in a position to make a reasonably informed decision, iow -
that they should be reasonably knowledgeable (Van Rensburg).

Special knowledge or qualifications, the Commissioner held, was not required.

Other examples of unfairness include promotion of a person who took part in the
short listing of candidates, bias and nepotism in the selection procedure.

Or the erroneous exclusion of an employee from a shortlist due to a mistake by

the employer or the selection committee.

2. Item 2(1) of Schedule 7 of the Labour Relations Act of 1995 contains a list of unfair
labour practices.

2.1 What is an "unfair labour practice"? (1)

Any unfair conduct by the employer relating to the promotion,

demotion, probation or training of an employee.

It occurs during the employment relationship, i.e. any unfair conduct short of
dismissal.

2.2 Name the listed unfair labour practices. (3)

a) Unfair conduct relating to promotion, demotion, probation or

training of an employee.

b) Unfair suspension of an employee.

c) Failure or refusal by an employer to re-employ a former employee in terms

of an agreement.

d) Occupational detriment.

2.3 Is the list exhaustive? (1)

Yes

3. Discuss the employer's "unfair conduct relating to probation" as a form of unfair

labour practice. (4)

Unfair conduct relating to protected disclosures. The whole purpose of probation

is to allow the employer to make an informed decision about the capacity &
suitability of an employee to do a certain job.

This means that in identifying possible unfair labour practices, guidelines may be
gathered from the rules which govern the obligations of an employer before a

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 fair decision to dismiss on the grounds of poor performance is reached and also
from the guidelines relating to probation now contained in Item 8 of code of
Good practice.

Unfair labour practices by an employer in this context may include in a

substantive sense the failure to inform the employee properly about required
performance standards and -

in a procedural sense - the failure by an employer to afford the employee

reasonable guidance, evaluation, training, counseling and instruction.

What is envisaged here is a challenge of conduct of employer while the

employment contract (albeit probationary) still exists.

For example - employers who are not entirely satisfied with an employee's
performance during the initial period of probation may decide to extend the
period of probation - a decision which could also be challenged under this
provision.

4. What are the general defences that may be used to justify discrimination in terms of
the Employment Equity Act, 1998? (2)

Inherent requirements of the job and affirmative action. PART11

1. What is the purpose of the Employment Equity Act, 55 of 1998? (2)

The purpose of this Act is to achieve equality in the workplace by:

a) Promoting equal opportunity and fair treatment in employment through

the elimination of unfair
discrimination; and

b) Implementing affirmative action measures to redress the disadvantages

in employment experienced by designated groups to ensure their equitable
representation in all occupational categories and levels in the workforce.

2. When will the testing of an employee for HIV/AIDS be allowed? (2)

S7(2) of the Employment Equity Act provides that testing of an employee to

determine that employee's HIV status is prohibited unless the testing is held to
be justifiable by the Labour Court.

3. What is the difference between direct and indirect discrimination? (2)

Direct would be established where an employer treats a woman less favourably

than a man in the same position would be treated - simply because she is a
woman.

Indirect would be harder to identify and can occur where an employer makes a
rule that, on the face of it looks neutral to all employees but applying it has a
disproportionate affect on a certain group of employees.

4. In terms of section 2(b) of the Employment Equity Act, 1998, the goal of affirmative
action is to ensure "equitable representation" of certain groups in all occupational
categories. How is "equitable representation" determined? (3)

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 Equitable representation is determined by a consideration of the demographic
profile of the national and regional economically active population, the pool of
suitably qualified people in designated groups from which the employer may
reasonably be expected to promote / appoint employees and also the financial
and economic factors relevant to the sector in which the employer operates.

5. Discuss the nature of affirmative action. (5)

The constitution permits legislative and other measures designed to protect /

advance persons disadvantaged by unfair discrimination.

Thus the goal of affirmative action is to ensure the equitable representation of

certain groups in all occupational categories and levels in the workplace. It is
considered to be of a temporary nature - once the goal of equality has been
achieved the reason for affirmation action falls away.

Part 9 questions .
Inherent requirements of the job.

Affirmative action.

11. X is the owner of a big sweets factory 'Something Sweet' in the East Rand. One day, after
coincidentally going through the buying and selling statistics, X noticed that some of the
totals did not balance. After an initial investigation of all the past years' records, X came to
the conclusion that some of the stock has disappeared in the delivery section of the factory.
This section has been administrated by A and B. After being informed of the discrepancy in
the records, both A and B denied knowledge of any wrong doing. X decides to suspend both
A and B pending the outcome of a further investigation. X approaches you for advice. Advise
X by answering the following questions:

11.1 Section 188 of the LRA, 1995 stipulates three reasons for a fair dismissal. Which one
will be applicable to this set of facts? (1)

Misconduct if the offence can be proved (He can use operational requirement - similar
need "breakdown in the trust relationship" if A and B are suspected of the offence without
proof.

11.2 Briefly discuss the procedure that X must follow before A and B may be fairly
dismissed. (3)

X must hold an inquiry and investigation. A and B must be informed of the date of the
hearing to be held, in a language they understand. They are to be given ample chance to
prepare a response to the charge and a date for the heading must be reasonable. They are
allowed assistance in form of a shop, the steward, co-worker or manager.

11.3 A has been in the employment of 'Something Sweet' for the last
10 years and she has a clean record. Will these aspects be to
her benefit if X is considering to dismiss A? Discuss briefly. (3)

Yes, A's disciplinary record and length of service will count in her favour.
Depending on the seriousness of the charge and the finding of guilt on her part. These
factors could mitigate the punishment or prevent dismissal.

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11.4 X can not proof that A is involved in the disappearance of the
stock, but X does not trust A anymore, and he wants to dismiss
her. Is there another reason for which A may be dismissed?
Discuss briefly. (J3)

Yes, X may use operational requirement similar need "breakdown in the trust
relationship" if the suspicion and mistrust is counter productive to the operation of X's
business. If A has broken the fiduciary trust between himself and X, X may feel having A at
work is counter-productive, X will need to still follow procedure.

12. What common law remedies are available to the innocent party if the other party to
the contract of employment fails to carry out his or her obligations in terms of the contract?
(4)

Dismissal for a fair reason, suspension with / without pay, demotion, transfers etc.

13. Section 200A (I) of the Labour Relations Act 66 of 1995, introduced a statutory
presumption that in certain circumstances a worker will be presumed to be an
employee. What is the exception to this presumption? (2)

Part2.

An independent contractor.

Member of the SANDF, the National Intelligence Agency, and the SA Secret Service.

Unpaid volunteers working for an organization serving as a charitable purpose, and people
employed on vessels at sea in respect of which the Merchant shipping Act applies.

14. Discuss selective re-employment as a form of dismissal in terms of section 186(d) of

the Labour Relations Act 66 of 1995.(4)

Dismissal means that an employer who dismisses a number of employees for the same or
similar reasons has offered to re-employ one or more of them but has refused to re-
employ another. The employment relationship, in a sense, continues even after the
employment contract itself has terminated. The requirements are:

There must be a dismissal and the employees concerned must have been dismissed for the
same or similar reasons.

Thus, the employer must have offered to re-employ one or more of the previously
dismissed employees while at the same time refusing to re-employ one or more of the
previously dismissed employees.

15. In automatically unfair dismissals, the employer has no right to defend the dismissal
of an employee by proving that it was for a fair reason. What are the exceptions to this rule
with regard to a dismissal based on a discriminatory ground as allowed by section 187(2) of
the Labour Relations Act, 1995? (2)

S187(2) states, that despite S187(1) (discrimination) a dismissal may be made fair if the
reason for the dismissal is based on an inherent requirement of a particular job as well as
a dismissal based on age is fair if the employee has reached the normal or agreed
retirement age for persons in that capacity (escape clause).

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16. Section 186(2) (b) of the Labour Relations Act, 1995 protects employees
against unfair suspensions. Describe the difference between a preventative suspension
and a punitive suspension. (2)

A preventative suspension occurs where disciplinary charges are being investigated

against the employee and the employer wants to suspend the employee pending the
outcome of the enquiry, reason being to remove the employee from the workplace so that
he does not interfere with the investigation or intimidate witnesses.

A punitive suspension is imposed as a disciplinary measure short of dismissal after the

hearing has been held.

17. Discuss "early retirement" as a method of selecting employees to be dismissed for

operational reasons. (2)

Employees who have reached the minimum retirement age may be identified as the first
targets for retrenchment Last in first out is then the criterion used to retrench these
individuals (LIFO). This criterion is often applied in jobs which require physical fitness etc.
The choice of early retirement should be that of the employee.

18. The employer may dismiss the employee and allege incapacity as the basis of the
dismissal.

18.1 What does "incapacity" mean? (1)

Incapacity is the ability to do the work employed to do due to poor work performance or
due to ill health or injury, provided a fair reason exists for a dismissal on this ground.

18.2 What are the three types of "incapacity"? (3)

Poor work performance III health or injury Incapacity

19. CC has been employed by Competent Computer Services & Solutions ("CCSS") for the past
eighteen months as a human resources manager. She usually works 45 hours per week. CC
has her own office, and she is a member of CCSS's medical aid fund. CC was told that based
on her excellent tertiary qualifications, she may apply for promotion after one year of
employment, which she did. One day, two annoyed colleagues informed her that they had
information regarding the misappropriation of company funds. According to these
colleagues, there are certain managers in the company who only pay 2 % of the rental
amount for housing, considered what other employees are paying. Even more alarming are
the allegations that these managers used company funds to install internal heating and
ceiling fans in their homes. CC promised that she will deal promptly with this information.
CCSS has set up a hotline to enable employees to report irregularities in the workplace. CC
reported the information to the hotline, where it was duly referred to the Forensic Auditing
Unit for further investigations. Two weeks later CC received a letter stating the following:

"Thank you for your application for promotion. Unfortunately after careful consideration of
your application it has been unsuccessful based on your lack of quintessential experience.
Your valuable input in this company has however not gone unnoticed and you are invited to
apply again next year."

A month later, CC received another letter which stated that after thorough investigations,
the information which she has provided to the hotline, turned out to be false. Furthermore,
a grievance has been instituted against her by some of the managers based on an
infringement of their privacy. Subsequently, a disciplinary hearing was held, where CC was

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charged with "deliberately giving untrue and misleading information to the company
hotline". CC was found guilty, and was dismissed for misconduct. CC approaches you for
advice. Advice CC by answering the following questions:

19.1 Is CC an employee? Also refer briefly in your answer to the tests used to make a
distinction between an employee and an independent contractor. (4)

Yes, CC is an employee. The tests used by the courts are the control test, organization test
and dominant impression test. The dominant impression here is that CC is an employee.
Also, S200A creates the presumption that CC is an employee.

19.2 Discuss whether CCSS and CC could have agreed to arbitration instead of a
disciplinary hearing regarding the alleged misconduct. (5)

A party that wants a dispute resolved through arbitration must request this within 90 days
after the date the CCMA issues a certificate that a dispute remains unresolved.

The resolution of a dispute about dismissals for misconduct is referral to a council for
compulsory conciliation. Conciliation should have been the first step to resolve the issue.

19.3 CC believes that her unsuccessful application for promotion was based on her having
made a protected disclosure to the hotline. Discuss. (3)

A protected disclosure is regulated by The Protected Disclosures Act and offers protection
to employees who blow the whistle on corrupt activities and criminal offences. If an
employer dismisses the employee in contravention of this Act, then dismissal may
constitute an automatically unfair dismissal.

19.4 CC informs you that she bona fide believed that the information
was true, and that she is convinced that her dismissal was
based on the fact that she disclosed information to the hotline.
Which type of dismissal will such conduct constitute? Discuss briefly.

In terms of the PDA, any disclosure made in good faith and in accordance with procedure
prescribed by the employee's employer for reporting impropriety is a protected disclosure.
If an employee is dismissed in contravention of the PDA, his dismissal can be automatically
unfair. CC's dismissal would be an automatically unfair dismissal in terms of the PDA.

19.5 One of the common law duties of an employee is to promote the business of an
employer and to act in good faith. Write a brief note on the four elements of this duty. (4)

The employment relationship is based on trust and confidence. The employee owes his
employer a fiduciary duty, i.e. can't work against the employer's interests.

The employee may not use or divulge for his personal benefit the employer's confidential
information he has access to while employed.

The employee must avoid conflict of interests with his employer. He must place the
business interests of the employer above his own.

The employee can't make secret commissions while doing the work of the employer.

20. On 01 January 2003 Solly, a qualified computer programmer was appointed as a senior
programmer in the computer services department at "Pat Technologies". Solly was

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appointed to serve a probation period of 12 months, before his confirmation for permanent
appointment. Soon after commencing his employment, Solly asked his supervisor, Leftie,
about the performance standards required from him. However, Leftie said to him "it does
not matter, just behave well".

In June 2003, a probation meeting was held and Solly was informed that his performance
was generally unsatisfactory. Despite the finding of the meeting, his supervisor still held that
he (Solly) did not require any training since he was well qualified. One day, Leftie sent Solly
to buy him (Leftie) lunch and Solly refused. Leftie said to him "you are insubordinate and you
will pay for this". In January, another probation meeting was held where Solly was informed
that he failed to meet the required standards and his appointment would therefore not be
confirmed. At both meetings Solly chose not to bring a representative.

20.1 Advise Solly on whether the employer has committed an unfair labour practice with
regard to his probation. (4)

The employer clearly committed an unfair labour practice as the performance standards
required from any employee must be objectively set and the employee has to be aware of
the standards.

Failure to inform the employee, during probation, about the required performance
standards properly is an unfair labour practice. And in a procedural sense, failure to train,
guide, council and evaluate the employee is also an unfair labour practice.

20.2 Who is protected against unfair labour practices? (2)

Employees are protected against unfair labour practices from their employers. No one
else.

20.3 Discuss whether Solly breached the employee's duty to obey all
lawful and reasonable instructions of the employer, by disobeying Leftie? (4)

To obey all lawful and reasonable instructions of the employer is an implied duty of the
employee.

Serious insubordination, i.e. willful and persistent refusal to comply with instructions of
the employer, amounts to breach.

What Sally did was not a serious breach of any duty.

He thus did not obey Leftie's instructions. They were not relating to the employment
situation.

Part 10 questions
1. What is the effect of a reinstatement order as a remedy for unfair dismissal? (1)

A reinstatement order restores the contractual position between the employer

and the employee as if it was never broken.

2. What is the distinction between a reinstatement order and a re-employment order?

Textbook page 352.

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 A reinstatement order restores the contractual position between the employer
and the employee as if it was never broken.

Consequently, rights such as seniority rights will be unaffected.

A re-employment order implies the statutory imposition of a new relationship

which may be different from the old one.

The employee may be given the old job but without the rights, such as seniority
rights, which had been acquired ito the old employment contract.

May also mean that employee is given another job that differs from the old one.

IF employee is appointed to a different position than the old one, s19 (3) requires
that it must be 'reasonably suitable work1.

The employee may be appointed to this new position on any terms.

3. Under which circumstances will the Labour Court not order a reinstatement or re-
employment, as remedies for unfair dismissal? (5)

See answer 1 & 2

1. Mary works as a domestic worker for Mrs. Smith, who has recently retired. Since her
retirement, Mrs. Smith is at home most of the day. She suddenly finds the presence of Mary
at home intolerable because Mary sings loudly while working and carries a bag of garlic
around her that he does not appreciate her attitude and that she should refrain in the future
from touching him in any way or to make inappropriate remarks. To his surprise, Anne
laughs and tells him "If you know what is good for your career, you will treasure our special
relationship". Alex is flabbergasted and approach you for advice. Answer the following
questions:

2.1 How will you categorize Anne's conduct? (1)

Unfair discrimination - sexual harassment.

2.2 Which legislation provide for protective measures against Anne's

conduct? (2)

Section 6(3) of Employment Equity Act, 1998 provides that harassment amounts to "a
form of unfair discrimination" and as such, it is also prohibited.

2.3 What can Alex do against Anne's inappropriate conduct? (5)

Alex is in a hostile working environment, where he finds it difficult to work because of

sexual harassment ranging from physical touching and verbal suggestions.

Alex must make the other partners aware of the conduct and they must do everything that
is expected of a reasonable employer.

The employer must be pro-active (must eliminate unfair discrimination, which includes
harassment).

The code of good practice on the handling of sexual harassment cases mentions that there
is a positive duty on employers to implement the policy, including effective
communication to employees, the creation of procedures to deal with sexual harassment
and taking disciplinary action against employees who do not comply.

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If the employer fails to meet these requirements it would simply not be able to argue that
it should escape liability for the acts of employees because it did not know about the
harassment or waited to do something until the problem was brought to its attention.

Or Alex can resign, rather than being subjected to further harassment or brining the
matter to the attention of the employer.

IF the employee can prove that there was constructive dismissal and can show
discrimination in the form of harassment gave rise to that constructive dismissal, the
employer's conduct may well constitute an automatically unfair dismissal, (s 187 of LRA).

Alex could also institute a civil claim against the perpetrator (delict) and the employer
(vicarious liability).

2.4 What are the justification grounds against a claim of unfair discrimination? (2)

Affirmative Action. Inherent job requirements. Age

3. Distinguish between section 186(c) and section I87 (e) of the LRA, 1995 with regard to
the dismissal of an employee based on pregnancy. (5)

Part4 & 5

S186 (1) (c) - dismissal for reasons of pregnancy.

An employer refused to allow an employee to resume work after she took maternity leave
ito any law, collective agreement or her contract of employment.

Section 187(1) (e) of LRA provides that in certain circumstances a dismissal for 'ANY
REASON related to pregnancy1 could be automatically unfair.

Here they refer to the pregnancy, intended pregnancy or any reason relating to her
pregnancy.

4. Large-scale dismissals by big employers are regulated by section 189(A) (19) of the
LRA, 1995. According to this section, the substantive fairness of a dismissal based on
operational requirements, consists of four elements. Name these four elements. (4)

Part8

The dismissal was to give effect to a requirement based on the employer's economic,
technological, structural or similar needs.

The dismissals were operationally justifiable on rational grounds. There was a proper
consideration of alternatives. The selection criteria were fair and objective.

5. One of the procedural requirements of a dismissal based on the operational

requirements of a business is that an employer is required to disclose relevant
information during consultation. When will information be considered as 'relevant'? (1)

Part8

Relevant information entails all information that will allow effective consultation.

Whether or not information will enable the other party to consult effectively is a factual
question.

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In any dispute in which an arbitrator / the Labour court is required to decide whether or
not any information is relevant, the onus is on the employer to prove that any information
that it has refused to disclose is not relevant for the purposes for which it is sought.

6. Which information is an employer not required to disclose? (4)

Legally privileged information.

It must have been obtained for profession legal advice. Thus, it must have been prepared
for that purpose.

The document must have been obtained in reference to actual pending litigation or
litigation that is anticipated.

Confidential information that may cause harm if disclosed.

If such information becomes known, it will impact negatively upon the employer's
competitiveness. E.g. trade secrets.

Private personal information relating to an employee.

Unless the employee consents to such information being given.

Limitations and exceptions.

If legally privileged information, employer cannot disclose as a result of any law or court
order.

If there is a dispute about the disclosure of such information. Any party may refer the
dispute in writing to the CCMA.

The commissioner must first decide whether or not the information is relevant.

If the info is relevant, the commissioner must balance the harm which the disclosure is
likely to cause the employee or the employer against the harm which the failure to
disclose the information is likely to cause the ability of the other party to engage
effectively in consultation.

7. Discuss the payment of 'severance pay' as a pre-requisite for a dismissal based on the
operational requirements of a business. (4)

In terms of the Act, an employee is entitled to a least 1 weeks' remuneration for each
completed year of continuous service.

An employer's duty to pay severance pay is not absolute.

If an employee unreasonably refuses an alternative position, he loses the right to

severance pay.

If the employee refuses a position that is similar to the old one, the refusal may be
unreasonable.

However, it the offered position amounts to a demotion, the employee's refusal will not
be regarded as unreasonable.

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TRUE or FALSE Questions
8. Indicate whether the following statements are TRUE or FALSE for 1/4 mark each. Briefly
motivate your answer for another 1/2 marks each.

8.1 Medical and psychological testing is impermissible, because according to the

Employment Equity Act, 1998 it can not be justified. (1)

False.

The EEA prohibits the medical testing of an employee, UNLESS legislation requires or
permits the testing or the testing is justifiable.

8.2 When an employee is dismissed for a 'protected disclosure', the dismissal will
either be fair or unfair, depending on the circumstances. (1)

True.

8.3 The dismissal of an employee, based on the operational requirements of a

business, will be fair if an employee continuously made racist and sexist remarks. (1)
True.

8.4 An 'unfair labour practice' refers to the unfair conduct of an employer when either
the employment contract of an employee is terminated, or when an employee is unfairly
dismissed. (1)

False.

8.5 An employer has a greater duty to accommodate an employee who has been
incapacitated by a work related illness than an employee who has been incapacitated by any
other illness. (1)

True.

8.6 If an employer dismisses an employee for operational reasons, the employer must
pay an employee severance pay equal to at least one month's remuneration for each
completed year of continuous service with that employer. (1)

False.

8.7 The Employment Equity ACL 1998 prohibits the 'psychological and other similar
assessments' of employees unless the test or assessment has been scientifically shown to be
valid and reliable.

True.

It can be applied fairly to all employees and that the test or assessment is not biased
against any employee or group of employees.

8.8 A reinstatement order granted to an employee who was unfairly dismissed implies
the statutory imposition of a new relationship between that employee and the employer,
which may be different from the old one.

False.

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8.9 In terms of section 20 of the Basic Conditions of Employment Act 1997 the minimum
standard in respect of annual leave is 20 consecutive days' annual leave on full remuneration
in respect of every completed annual leave cycle.

False.

8.10 The procedure for the resolution of a dispute about a constructive

dismissal is the same as for the resolution of a dispute about a dismissal for incapacity.

True.

8.11 If an employer dismisses an employee for operational reasons, the employer must
pay the employee severance pay equal to at least one week's remuneration for each
completed year of continuous service with that employer. (2)

True.

8.12 A contract concluded with an independent contractor may be terminated. Such

termination will constitute a ‘dismissal’ as defined by the Labour Relations Act, 1995. (2)

False.

8.13 The procedure for the resolution of a dispute about a constructive

dismissal is the same as for the resolution of a dispute about a dismissal for incapacity. (2)

True.

8.14 The Basic Conditions of Employment Act, 1997 excludes the following people from
its scope of protection: members of the National Intelligence Agency, members of the South
African Secret Service, domestic workers and persons undergoing vocational training. (2)

False.

8.15 The preferences of clients or customers are generally regarded as valid inherent job
requirements to justify the appointment of someone from a particular race. (2)

False.

Customer preference does not qualify as an “inherent requirement for a job" as envisaged
in s6 (2) of EEA.

8.16 A dispute regarding an automatically unfair dismissal must be referred directly to

the Labour Court for arbitration. (2)

False.

8.17 The Basic Conditions of Employment Act, 1997, provides for basic terms and
conditions of employment which may not be substituted under any circumstances by
another law or a term of the employment contract. (2)

False.

8.18 In terms of section 20 of the Basic Conditions of Employment Act, 1997 the
minimum standard in respect of annual leave is 21 consecutive days on full remuneration in
respect of every completed annual cycle. (2)

True.

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8.19 An independent contractor will not be entitled to the protection of the Labour
Relations Act, 1995 with regard to unfair dismissal.
(2)

True.

8.20 A person who assists an employer in the carrying on of his business will qualify as an
employee. (1)

True.

8.21 Senior managerial employees must get a meal interval if they have worked
continuously for more than five hours. (1)

True.

8.22 When a small employer, retrenches two employees, the CCMA will appoint a
facilitator. (1)

False.

8.23 The suspension of an employee without pay, pending a disciplinary enquiry will
not amount to a residual unfair labour
practice. (1)

True.

8.24 The medical testing of an employee will only be allowed with the permission of the
Labour Court. (1)

False

Section 7(2) of Act provides that testing of an employee to determine that employee's HIV
STATUS is prohibited UNLESS the resting is held to be justifiable by the Labour Court.

The Labour Court may impose various conditions in this regard.

9. The following statements are included in a contract of employment. Indicate whether

each clause is VALID or INVALID for 1/2 marks each. Briefly motivate your answer for another
½ mark each.

9.1 The Basic Conditions of Employment Act, 1997 is applicable to domestic workers, farm
workers and people employed on vessels at sea. (1)

False. Unless legislation requires / permits or the testing is justifiable.

9.2 Working hours are between 8hOO-18hOO from Monday to Friday, with one hour
lunch from 12hOO-13hOO. (1)

True.

The maximum hours of work for the employee are 9 hours a day or 45 hours a week.

9.3 The employee will be entitled to 25 paid holidays leave per year.(1)

False.

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In respect of annual leave cycle (a period of 12 month' employment with the same
employer) an employee is entitled to at least 21 days consecutive days' annual leave on
full remuneration.

9.4 The employee is entitled to four months paid maternity leave per year for the birth
of each child. (1)

False.

An employee is entitled to 4 consecutive month's maternity leave.

While many employment contracts provide that maternity leave will be on full pay, the
BCEA merely provides that maternity benefits will be determined by the Minister of
Labour subject to unemployment insurance legislation.

The employee is therefore not entitled to paid maternity leave, but only 4 consecutive
month's maternity leave.

9.5 The principle 'no work, no pay' is applicable to public holidays falling on a normal
working day. (1)

False.

An employer may not require an employee to work on a public holiday, unless the parties
have agreed otherwise.

If the employee does not work, he would be entitled to his ordinary remuneration for that
day.

But if the employee does not work on a public holiday, the employer must again pay the
price - at least double the employee's ordinary wage for every hour worked.

9.6 Medical testing of an employee is never allowed. (1)

False.

9.7 The use of ‘non-residency’ as a selection criteria for the retrenchment of

employees, may amount to an automatically unfair dismissal. (1)

True.

9.8 The dismissal of employees based on their participation in an unprotected strike will
amount to automatically unfair dismissals.

2)(@)

False.

9.9 The Employment Equity Act, 1998 places a positive duty on every employer to
eliminate unfair discrimination in the workplace by implementing affirmative action
measures. (2)

True.

9.10 The preferences of clients or customers are generally regarded as valid inherent job
requirements to justify the appointment of someone from a particular race. (2)

False.

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9.11 Section 25 of the Basic Conditions of Employment Act, 1997 provides that an
employee is entitled to at least four consecutive months' paid maternity leave. (2)

False.

Same answer as 9.4 (not entitled to pay)

9.12 The following people are excluded from the scope of protection of the Basic
Conditions of Employment Act, 1997: members of the National Intelligence Agency,
members of the South African Secret Service, farm workers and persons employed on
vessels at sea in respect of which the Merchant Shipping Act 57, 1951
applies. (2)

False.

The Act does apply to farm workers.

9.13 A dispute regarding an automatically unfair dismissal must be referred directly to the
Labour Court for arbitration. (2)

False.

10. Unfair discrimination is prohibited by the Employment Equity Act, 1998. Distinguish
between the defences of an employer in the following cases of discrimination:

10.1 Discrimination as a ground for an automatically unfair dismissal in terms of section

187(1) (f) (2)

Part5.

An employer may in certain circumstances be permitted to show that the discrimination

was fair because of the inherent requirements of the job or because of the age of the
employee (escape clause).

(Qualifies automatically unfair dismissals where the dismissal constitutes fair

discrimination).

10.2 Situations where discrimination will not be regarded as unfair, as mentioned in

section 6 of the Employment Equity Act, 1998. (2)

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