VARSITY ASSIST

MRL 3702
LABOUR LAW

2022
LATEST EXAM REVISION
PACK
THIS PACK IS THE LATEST PACK THAT HAS BEEN UPDATED WITH THE LATEST MEMOS
UP UNTIL THE MAY/JUNE 2022 EXAM

QUESTIONS AND ANSWERS HAS BEEN TYPED OUT FOR YOU FOR EASY REFERENCE.
ANSWERS ARE DIRECTLY BELOW THE QUESTIONS, HENCE NONEED TO REFER
BETWEEN SEPARATE QUESTION PAPERS AND ANSWERS.

DOCUMENT IS COMPLETELY QUICK SEARCHABLE WITH EASY SEARCHOPTIONS

ESPECIALLY FOR ONLINE EXAMS /PORTFOLIOS .

MEMOS - (2015 TO 2022) – P.S (PLEASE VIEW CONTENTS PAGE FOR EXACT EXAM PAPERS
COVERED) +
ADDITIONAL QUESTIONS AND ANSWERS DOCUMENT BASED ON EACH LEARNING
UNIT AS PER PRESCRIBED TEXTBOOK TO COVER THE ENTIRE MODULE
CONTENTS
PAST YEAR EXAM QUESTIONS AND ANSWERS

MAY/JUNE 2022

OCT/NOV 2021 - SUPER SEMESTER-AS ONLINE EXAM

PAPER NOT AVAILABLE

OCT/NOV 2020

OCT / NOV 2019

MAY/ JUNE 2019

OCT/NOV 2018

MAY/ JUNE 2018

MAY/ JUNE 2017

OCT/NOV 2016

MAY/JUNE 2016

OCT/NOV 2015

MAY/ JUNE 2015

ADDITIONAL QUESTIONS AND ANSWERS DOCUMENT BASED ON EACH LEARNING

UNIT AS PER PRESCRIBED TEXTBOOK TO COVERTHE ENTIRE MODULETHIS PACK
HAS BEEN SET OUT FOR EASY USE FOR THE STUDENT .
MAY /JUNE 2022 EXAMINATION

1.1 Selina worked for GM Hairdo (Pty) Ltd (‘GMH’) as a hairdresser until
2019 when thebusiness was forced to close due to COVID-19. Two
years later, the business reopened, however, Selina did not return to
GMH, instead, she decided to start her own salon in the
neighborhood. GMH thinks that it is unfair that Selina could operatea
similar business in the neighborhood as that would negatively affect
the customerbase GMH has built over a long period. Selina argues
that business is about competition and that both businesses must
compete for customers. Labour Law students debated about this
issue and some think that GMH is greedy because business is all
about competition, while others think that GMH has a legal ground to
have Selina relocate her business elsewhere.

Discuss whether GMH has any legal remedy to use in order to have
Selina relocate her salon business elsewhere. Your answer must
include the following:

• the legal remedy;

• how that legal remedy operates;
• the fairness or otherwise of that legal remedy
• relevant legal authority

GMH does not have any legal remedy after Selina has stopped working
for them.
However, they could have concluded a restraint of trade
agreement priorly. It is the employee’s duty to not utilize the
confidential information of the employer. However, this would be
difficult to prove and employers have opted to conclude restraint
of trade agreements that are included in the employment contract
 or asa separate contract. A restraint is put into place to protect
the employer's customer connections and remains effective for a
specified period after employment has ended. A clause of
restraint prevents an employee from exercising their trade for
example engaging in the same business venture as the business
for a specified time in a specified area. The terms of restraint
might be unfair and harsh and restrict the employee from
practicing their trade even if he or she may not be competing with
the employer. The restraint must be judged by the criterion of
public policy to determine whether it is an unreasonable limitation
on a person's right to trade. A court will not enforce a restraint of
trade to eliminate competition or prevent the employee to use his
or her knowledge. The employer will have to prove that interest
beyond competition and skills of the employee is being
prejudiced. If the employer establishes that a restraint of trade
exists and it was breached it is the employee's duty to prove that
it was unreasonable and unfair. In Marfield insurance brokers cc
and another the court held that the circumstances under which
the employment contract came to an end should not be
considered. However, according to section 22 of the constitution
restraint of trade may be unconstitutional.

1.2 Lemao and Gare are engaged in an argument on how much

remuneration is paid to an employee who has taken three weeks’
annual leave. On the one hand, Lemao argues that, the payment is
determined by the Unemployment Insurance Fund and that nobody
knows about the exact amount. On the other hand, Gare argues that,
the payment is 25% of the normal monthly salary because an
employee would havestayed away from work for three weeks and
that, this is not only fair but, is also in line with the commercial
language that says, ‘value for money’.

Advise based on the applicable provision of the BCEA whether the

 above arguments are correct regarding the remuneration the
employers are required to pay anemployee who has taken annual
leave and why.

The arguments are incorrect. In an annual leave period which is

12 months an employee is entitled to 21 days of consecutive leave
on full remuneration. The BCEA provides for three weeks and 21
days, not calendar days but rather working days. Section 20(10)
states that annual leave is subject to agreement between
employee and employer and where there is no agreement it is up
to the employer.

QUESTION 2

The LRA provides for the following three grounds upon which an employer
may rely on to dismiss employees: misconduct, operational requirements
and incapacity. However, the LRA further requires that all dismissals should
be fair in both substance and procedure.

Answer the following questions:

(a) Discuss the procedural steps which the employer is required

to follow for the dismissal of an employee on the ground of
misconduct to be fair.
(16)

Section 188 of the LRA requires that a dismissal for misconduct be effected in
accordance with fair procedure. A fair procedure includes a disciplinary
investigation in the form of a fair disciplinary enquiry where the employee will
have a chance to state their side of the story. This is called the audi alterem
partem rule. Item 4 requires the employer to lodge an investigation to determine
whether there are grounds for dismissal. The enquiry may be held informally.
Item 4 also requires that the employer informs the employee of the allegations
made against him or her informing them of the charge. The charge must be in a
language the employee can understand and must be phrased in a way that the
employee knows which rule they have broken. Notice of the charge as well as
the disciplinary hearing is usually given in the same document. A change can be
made to the charge prior to the disciplinary hearing and it should be ensured that
the employee has enough time and information to prepare themselves.
Employers are not allowed to have a second enquiry should there be multiple
offenses however the courts have stated that it can be fair given the
circumstances. If new evidence comes to light after the first enquiry the employer
may have a second enquiry ( BMW Py( Ltd) v Van de Walt).

In terms of item 4, the employee is entitled to a reasonable time to prepare a

response. Normally 48 hours of notice is given but it can vary depending on the
circumstances.

Fourthly an employee is entitled to state a case in response to the charges. The

employee can dispute the charges or argue that dismissal is not the appropriate
sanction. How evidence is given at the enquiry is regulated by the employer's
disciplinary code. According to item 4, the employee is entitled to the assistance
of a trade union representative or a fellow employee during the enquiry. A trade
union representative is defined by the LRA as a member of the trade union
elected by the employees of the workplace. The purpose of the trade union
representative is to assist the employee with the presentation of the response
and ensure that the enquiry is procedurally fair. The decision of whether the
employee is guilty and what penalty they should receive if they are found guilty
is the responsibility of the chairperson of the enquiry. The employee should be
informed in writing of the decision and if the employeeis guilty they should be
informed of the sanctions as well.
Item 4 (3) requires that the employee should be informed of the reason
for dismissal if the dismissal was the appropriate sanction. The
employee should also be reminded of the right to refer the matter to a
bargaining council or the CCMA. Item 4 does not make provision for an
appeal of the enquiry however should the employer's disciplinary code
include it then the employee will be entitled to an appeal. The employer
may dispense a predismissal enquiry however if the employee is absent
they should be informed of the decision and the employer should show
that all the steps have been taken to bring thedismissal of the employee.
The employer and employee may also agree to arbitration instead of a
disciplinary enquiry.

(b) Distinguish between ‘desertion’ and ‘abscondment’ from work

by the employee.

Abscondment is when the employee disappears typically for a lengthy

time period and the employer is unaware of the employee's
whereabouts whereas desertion is when the employee leaves
employment with no intention of returning.

(c) Dismissal is only one of a number of penalties that the

employer can impose against an employee who has
committed misconduct.

List five (5) examples of other penalties that may be

imposed against an employee charged with misconduct.

1) suspension without pay.

2) written warnings.

3) verbal warnings.
 4) Demotion

5) transfer

QUESTION 3

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

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

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

employees of SS and employees of FB.
(2)

The employees of SS are engaging in a strike that is an action

committed by people employed by the same employer and the
employees of FB are engagingin a secondary strike because they
took concerted action that is refusing to work in support of the
primary strike by the employees of SS who are striking agains
their own employer.
(b) Discuss the necessary procedure to be followed by
employees of FB before they can engage in their strike.
(6)

In order for a secondary strike to be protected certain requirements

must be met :

• The primary strike should be a protected strike.

• The secondary employer must be given 7 days' prior notice of
the strike.
• 14 days' notice must be given to the secondary
employer prior to the commencement of the
secondary strike.
• The nature of the secondary strike must be reasonable
in relation to theeffect it will have on the business of the
primary employer.

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

No, section 67(4) specifically provides that an employer may

not dismiss anemployee for participating in a protected strike.
Section 187 of the LRA also states that if the reason for
dismissal is that the employee participated in or supported a
protected strike the dismissal will automatically be unfair.
 (d) Distinguish between a ‘lock out’ and a ‘protest action’ with
reference to their purposes.
(4)

A lockout is the exclusion of the employee by the employer from the workplace in
order to compel the employee to accept a demand in respect of a matter of mutual
interest. The protest action is defined as the partial or complete refusal to work or
the retardation of work to promote and defend the interest of the workers.

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

The giving of prior notice makes it possible for the employer and the
employee to prepare for the strike or lock-out. In ceramic industries ltd v
national construction building and allied workers union, it was held that
the consequence of providing the employer with notice of a strike is that
they might give in to the demands before the strike or take other steps to
protect the business before the strike starts. As well as with the lockout
prior notice will allow the employees a chance to accept the demands of
theemployee before the lockout.

3.3 Who presides over the CCMA matters? (2)

The Commissioner of the CCMA

 QUESTION 4

Dracula T (Pty) Ltd (‘DT’) is a poultry farm in Alexandra township, west of

Gauteng province.DT rears and sells chickens to established grilling
houses in the country. It has two trade unions with members in the
workplace namely, the People’s Union (‘PU’) and Members Union (‘MU’).
The former is the majority union and the latter is the minority union. Both
PUand MU need organisational rights in order to effectively bargain for
their respective members’ interests within the workplace.

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

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

MU respectively. (10)

Whether or not a trade union is entitled to organisational rights depends on the

level of representativity of the trade union in the workplace.

Majority representation (MU) (union represents 51% or more of all the employees in
the workplace) = entitled to all 5 organisational rights.

Sufficient representation –(PU) (union represents less than the majority of

employees in the workplace - sufficiently representative is not defined, but the LRA
gives guidelines of approximately 30%) = entitled to S12: access to the workplace;
S13: membership fees deducted from wages, and S15: shop stewards get leave for
trade union activities

i. Access premises of the employer – sufficient representation

ii. Deduction of trade union membership fees – sufficient representation
iii. Election of shop stewards – majority representation
iv. Leave for union activities – sufficient representation
v. Disclosure of information – majority representation

(b) What is your understanding of the concept: ‘collective bargaining’? Your

answer must contain the following:

• what collective bargaining entails; and (4)

• the purpose of collective bargaining. (1)

Collective bargaining entails the voluntary process in which organized labour in

which employers and trade unions negotiate collective agreements with each other
in order to determine wages, the terms of conditions of employment and other areas
of mutual interest. Collective bargaining can only be concluded by a trade union or
by two or more trade unions. The purpose of collective bargaining is to allow the
problem to be solved simply without the need for court action or strikes.

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

Freedom of association is a fundamental right and is protected by S18 & S23 of

the Constitution. This protection is further extended by S5 of the LRA – employees
have the right to form, join, belong to and participate in the lawful activities of a
trade union.
All employees, including senior managers, enjoy the right to freedom of
association. If a senior manager is also a member of a trade union, there is a
potential for a conflict of interests, since a managerial employee may have access
to information that can harm the employer if divulged to the union. At the same
time, he cannot be dismissed when exercising the right to freedom of association.
IMATU & others v Rustenburg Transitional Council: Although a senior manager
cannot be prevented from joining a union, he must act in good faith towards his
employer, and in so doing, the employee must be careful in balancing the interests
of the union and the employer.
OCT /NOV 2020 EXAMINATION

QUESTION 1

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

Answer the following questions:

(i) With reference to applicable legal authority, discuss the following -
- whether Moji is an employee or independent contractor in both establishments;
- whether Mr Katsande’s demand is legally correct and;
- whether Mr Katsande is entitled to discipline Moji for the ranting. (15)

Tests employed to distinguish between an employee and independent

contractor
i. The control test: control is an essential feature of a contract of employment. The
right to control is more extensive in the employment contract than in other types of
contract, such as the contract of an independent contractor or an agency contract.
ii. The organisation (integration) test: this test depends of a determination of whether
a person is part and parcel of the organisation.
iii. The multiple or dominant impression test: It is often seen as the standard test
currently used by our courts. The factors, or indications, that the court would take
into consideration to obtain a dominant impression, include the following
➢ The right of supervision, in other words, whether the employer has the right to
supervise the other person, (i.e. ‘the worker’).
➢ The extent to which the worker depends on the employer in the performance of
duties.
➢ Whether the worker is allowed to work for another. Normally, someone who is an
employee in terms of an employment contract is not allowed to work for anyone else.
➢ Whether the worker is required to devote a specific time to his/her work.
➢ Whether the worker is obliged to perform his/her duties personally. Usually,
someone working for another in terms of an employment contract is obliged to
render the services personally. In the case of an independent contractor, it does not
really matter who does the work as long as the job gets done.
➢ Whether the worker is paid according to a fixed rate or by commission.
➢ Whether the worker provides his/her own tools and equipment.

➢ Whether the employer has the right to discipline the worker. The existence of this
right would normally indicate control, which, in turn, would be indicative of an
employment contract.

From the above set of facts we can conclude that Moji is an independent contractor .
Mr Katsandes demand is not legally correct and he cannot reprimand Moji as Moji is
not an employee of his . In the case of an employee the demand can be correct and
the employee can be reprimanded, however not in the case of independent contractor.

1.2 Finky and Hendriet work for Pretoria Zoo SA (Pty) Ltd (‘PSA’). Their duty is to feed
two lions (one lion each). They work same shift and are both fifty years of age.
Finky started working for PSA in 1994 while Hendriet started in the year 2000.
Both have the same qualification, however, Finky earns more than Hendriet.
Write a legally supported opinion regarding their pay difference and fairness thereof
while their duties are practically the same. [Your opinion should not exceed one page].
(10)

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 for performing the same or similar work based on a
specified or unspecified ground constitutes less favourable treatment. Therefore, any
claim of equal pay for equal work that is the same or similar may 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, 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.

QUESTION 2

2.1 Eva was employed by Seboko General Dealer (Pty) Ltd (‘SGD’) which has been
operating in the city of Polokwane for five years. For the past two years Eva’s sales
were excellent. In December 2019, she signed a performance agreement which
stated that she must sell Fifty Thousand Rands (R50 000.00) worth of stock monthly.
Her job included working inside and outside the business premises selling the
employer’s products. For this purpose, she was equipped with a car, loaded petrol
card and a cellphone with airtime. With mounting pressure to meet agreed sales
target and fear of possible job loss if the target is not met, Eva tried her best under
the strict COVID 19 regulations in the first half of 2020, but was unfortunately
arrested on the 25th July 2020 for breaking the COVID 19 regulation to remain
indoors. Two months later, she received a letter from SGD which stated that she was
dismissed with immediate effect for incapacity due to her failure to meet agreed
sales target.

Answer the following question:

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

Incapacity is also recognised in terms of the International Labour Organisations

convention 158 of1982 (ILO). It is generally, an inability on the part of the employee
to perform in accordance with the standard set by the employer.

The inability is due to no fault of the employee. Incapacity provides an employer

with a valid reason to dismiss. Remember, what we said about the principle of fair

dismissal (based on ethos of ubuntu) discussed in chapter 5 – it applies to all forms

of dismissals. That is, each form of dismissal is accompanied with a relative
procedure.

In case of dismissal based on incapacity, the law requires employers to assist

employees likely to be affected by the dismissal subject to what is called ‘unjustified
hardship principle’ with reasonable ways and technical support that would enable
dismissal for operational requirements requires the employer to have a prior
consultation with employees likely to be dismissed in order to find ways to avoid or
mitigate the effect of the possible dismissal and whilst the dismissal for misconduct
requires that employee be subjected to a disciplinary hearing because, he/she
breached the rule.

Substantive fairness

As indicated above, substantive fairness speaks to the reason for the dismissal. Poor
work performance falls under incapacity. Obviously, it is only an employer who has

a set standards of performance who can be able to make valid accusations of poor

work performance because, standards are there to compare. When determining

Dismissal for incapacity whether or not dismissal on poor work performance is fair,
the following guidelines

should be considered –

• Whether or not the employee failed to meet a performance standard.

• If the employee did not meet a required performance standard whether or not –

– The employee was aware, or could reasonably be expected to have been aware

of the required performance standard.

– The employee was given a fair opportunity to meet the required performance

standard and

– Dismissal was an appropriate sanction for not meeting the required performance

standard.

Procedural fairness

The dismissal based on poor performance is not complete and thus fair without a

proper procedure. In terms of the code, an employee should not be dismissed for

unsatisfactory performance unless the employer has done the following –

• Has given appropriate evaluation, instruction, training, guidance, or counselling

and.

• After a reasonable period of time for improvement, the employee continues to

perform unsatisfactorily.

• The procedure leading to dismissal should include an investigation to establish

the reasons for the unsatisfactory performance and the employer should consider

other ways, short of dismissal to remedy the matter.

• In the process, the employee should have the right to be heard and to be assisted

by a trade union representative or fellow employee.

From the above set of facts we can conclude that the dismissal was both
substantively and procedurally unfair

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

i. an employer who employs 50 or more employees;

ii. an employer who employs fewer than 50 employees but whose annual turnover in
any given year exceeds a certain level (these levels are laid down in Schedule 4 of
the EEA);

iii. municipalities;

iv. organs of State (defined in section 239 of the Constitution); and

v. an employer appointed as a designated employer in terms of a collective

agreement

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

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

With reference to applicable legal authority, discuss whether GG can force Melisa to
terminate her membership with TEA, due to her new position. (10)
A dismissal will be automatically unfair if an employer dismisses an employee and
the reason therefore is related to the employee’s trade union membership or
activities.

Freedom of association is a fundamental right and is protected by S18 & S23 of the
Constitution. This protection is further extended by S5 of the LRA – employees have
the right to form, join, belong to and participate in the lawful activities of a trade
union.

All employees, including senior managers, enjoy the right to freedom of association.
If a senior manager is also a member of a trade union, there is a potential for a
conflict of interests, since a managerial employee may have access to information
that can harm the employer if divulged to the union. At the same time, he cannot be
dismissed when exercising the right to freedom of association.

IMATU & others v Rustenburg Transitional Council: Although a senior manager

cannot be prevented from joining a union, he must act in good faith towards his
employer, and in so doing, the employee must be careful in balancing the interests of
the union and the employer.

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

S13 LRA: The right to have trade union membership fees deducted by way of a stop
order

- Authorisation to implement stop orders must be given by the employees, in writing;

- The employer should start with deductions as soon as possible and pay the money
over to the union no later than the 15th day of the month;

- An employee may revoke his stop order authorisation by giving the employer and
the union written notice to this effect.
3.3 Remmogo Workers Association (‘RWA’) is the only trade union representing
employees within LL Construction (‘LLC’). RWA approaches LLC to negotiate a
wage increase for employees, however, LLC seems reluctant to start negotiations.
RWA argues that LLC is obliged to negotiate with it because the Constitution
provides that trade unions have the right to engage in collective bargaining.

Advise LLC on whether the right to engage in collective bargaining implies that there
is an enforceable right to bargain collectively and how the LRA promotes and
encourages bargaining in South Africa. (15)

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:

i. Plant level - this takes place between the employees and the employer for/in a
specific plant or factory.

ii. Sector level - this takes place in a specific sector of the economy in a specific
geographical area.

iii. Industry level - this is bargaining for a whole industry, e.g. mining

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

QUESTION 4

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

What are the circumstances under which members of BMA need not comply with
procedural requirements set by the LRA in order for the strike to be protected? (5)
1) The procedures need not be followed if the parties to the dispute are members of
a council and the dispute has been dealt with by that council in accordance with its
constitution;

2) The parties need not comply with the LRA’s procedural requirements if they are
covered by a collective agreement which contains its own procedural requirements
for strikes and lock-outs.

3) If an employer embarks on a lock-out that is not protected in terms of the LRA, its
employees will be able to strike in response to that unprotected lock-out without
complying with the procedures set out in S64, and vice-versa.

4) The procedures need not be followed if the strike takes place after the employer
has unilaterally changed the terms and condition of employment, and the employed
does not rectify this despite prior warning, and

5) In the case of a refusal to bargain dispute, the matter must be referred to

conciliation, and then to advisory arbitration before a notice of strike may be given.

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

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

Participation in an unprotected strike, or certain forms of conduct in contemplationor

furtherance of an unprotected strike may, constitute a fair reason for dismissal.

In evaluating the fairness of such dismissals, the provisions of the Code of Good

Practice: Dismissal contained in Schedule 8 to the LRA (the Code) must be taken
into account. The substantive fairness of the dismissal must be determined in

consideration of the following factors:

• the seriousness of the contravention of this Act;

• attempts made to comply with this Act; and

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

The procedural fairness of the dismissal must be determined in consideration of

the following factors:

• at the earliest opportunity, the employer must contact a trade union official to

discuss the course of action it intends to adopt; and

• The employer should issue an ultimatum in clear and unambiguous terms that

should state what is required of the employees and what sanction will be imposed

if they do not comply with the ultimatum. The employees should be allowed

sufficient time to reflect on the ultimatum and respond to it, either by complying

with it or rejecting it. If the employer cannot reasonably be expected to extend

these steps to the employees in question, the employer may dispense with them.
OCTOBER/NOVEMBER 2019

QUESTION 1

a) Discuss the requirements prescribed by the law for the conclusion of a valid
contract including a contract of employment
i. There must be consensus between the parties;
The employment contract like any other contract is created through offer and
acceptance. The contract arises when the parties agree about the essential
terms of the contract. Therefore, the minds of the parties must have met, that is,
they must intend the same thing. UCKG v Myeni – a church pastor could not
claim the existence of a valid contract because the other party (the church) was
under the belief that a voluntary service was provided for by the plaintiff (Myeni).

ii. Parties must have legal capacity to act;

A mentally impaired person or a minor will not be able to conclude a valid
contract of employment.

iii. Performance must be legally possible;

It will not be legally possible to appoint someone as an assassin for your debt
collection business.

iv. Performance must be physically possible; and

If the employer appoints a personal nurse to care for her/him and the employer
then dies, performance will no longer be physically possible.

v. If there are formalities, they must be complied with

It is important to note that it is not a requirement that an employment contract be
reduced to writing. However, in a few cases, statutes require that the
employment contract must be in writing (e.g. the contracts of merchant seamen
and learnership agreements).
b) What are the 4 methods through which the terms and conditions of employment
may be changed

i. by means of a collective agreement concluded in a bargaining council.

ii. by means of a collective agreement concluded outside a bargaining council by an
employer and a trade union
iii. by the employer and the employee by means of an agreement.
iv. by the Minister of Labour through ministerial and sectoral determinations.

c) Explain the concept of “Progressive discipline”

It entails that an employer should attempt to refrain from resorting to dismissal as a
first option. An employer should try to correct the employee through a system of
progressive or graduated disciplinary measures such as counselling and warnings. A
formal disciplinary procedure does not need to be invoked every time a rule is
broken as informal advice and correction might be a better way to deal with minor
violations of workplace rules. Dismissal must be seen as a last resort. Forms of
progressive discipline may include:
• Suspension without pay;
• Verbal warnings;
• Written warnings;
• Demotion; and
• Transfer.

QUESTION 2

Zukiswa is a young lesbian and graduate from University of Nowhere where she
specialized in Arts. She was looking for a job when she came across a job advert where
they needed an actress in one of the famous local Soapies She 1s however concerned
about some of the requirements in the advert which state that interested candidates
must be young graduates who specialized in Arts, must not have tattoos, must be one
meter tall and must have a deep voice. Except that, she is young and in possession of
the relevant qualification, Zukiswa does not completely fit the description on the advert.
She feels excluded and unfairly discriminated against and thinks of challenging the
Soapie managers about it. As an LLB, labour law student advise Zukiswa on the
following:
i. Whether she has a valid claim and whether her claim will be successful. (5)
Unfair discrimination
It is the allegation that the employee has been treated differently from another
employee, that is, there was differentiation. There are two defenses to the claim
of unfair discrimination, namely, affirmative action and inherent requirements of a
job. For present purposes, inherent requirements of a job is applicable.

An employer may argue that the discrimination is justified because of an inherent

requirement of a job. It may argue that the physical requirements of the job make

it necessary for employees to have certain physical characteristics. But it is the

employer who will have to prove that certain characteristics are indeed an
inherent requirement of a job.

Zukiswa might claim unfair discrimination and the employer will bear the onus of
proving that the discrimination is fair, due to inherent requirements of a job.

ii. Will your answer in (i) be the same if the requirement was that
'persons from Lesbian Gay Transsexual Bisexual and Intersexual
(LGTBI) must not apply'? Discuss with reference to the Constitution
and the EEA(5)

Direct discrimination
Direct discrimination occurs where the differential treatment of employees is
clearly and expressly based on one or more of the prohibited grounds of
discrimination, be they listed or unlisted.
• In terms of section 9 of the Constitution everyone is equal before the law and
has the right to equal protection and benefit of the law. This provision also
prohibits unfair discrimination against anyone based on amongst others, sex,
gender and sexual orientation.
• Section 6 of the Employment Equity Act (EEA) prohibits unfair discrimination
against employees in an employment policy or practice on for example,
sex/gender, belief or sexual orientation.
 Therefore, Zukiswa would have a different claim from the one above and
chances of the employer justifying such discrimination are next to nil. Zukiswa
would be successful with her claim.

b) Define the concept of dismissal in terms of the LRA

Section 186 of the LRA defines dismissal as follows –
a) termination of employment with or without notice,
b) when an employee employed on a fixed term contract reasonably expected
employer to renew employment contract on the same or similar terms or retain
the employee on indefinite basis but the employer offered to renew on less
favorable terms or not renew at all, or not to retain employee indefinitely,
c) an employer refused an employee to resume work after she took maternity leave
in terms of any law, collective agreement or contract of employment,

d) an employer who dismissed employees for the same or similar reasons offered to
re-employ one or more of them but has refused to re-employ another,
e) constructive dismissal or,
f) the new employer offered substantially less favorable terms to employees after
the transfer in terms of section 197 of the LRA.

c) Distinguish between reinstatement and re-employment as remedies for unfair

dismissal
• A reinstatement order restores the relationship between the employer and the
employee as if it was never broken. Rights, such as seniority rights, will be
unaffected.
• A re - employment order implies the imposition of a new relationship which may
be different from the employment relationship which existed prior to the earlier
dismissal. The employee may be given his/her old job but without the rights, such
as seniority rights, which had been acquired in terms of the old employment
relationship. It may also mean that the employee is given another job that differs
from his/her previous job.
 d) Which dismissals are deemed to be No-fault dismissals and why?
i. Dismissal for incapacity
ii. Dismissal for operational reasons
In these instances, employees are ready and available to offer their services but the
employer’s business focus or employee’s capacity demand that they be dismissed.
The inability is due to no fault of the employee under dismissal for incapacity. Under
operational requirements it is the focus of the employer’s business which leads to
dismissal.

QUESTION 3

Employer A and Trade Union B concluded an 'agency shop agreement' However,

some of the employees employed by Employer A who are not members of Trade
Union B, but are expected to comply with the agreement do not understand what the
agreement is all about.
Describe an 'agency shop agreement' to them. (8)

a) Agency shop agreement

Agency shop agreement is the agreement that the employees of a business all pay a
fee to the majority trade union in the workplace but members of the minority union
and non-members of no other trade union continue to be members of their minority
as well as those who are not members of any union.
i. An agency-shop agreement is concluded by a majority union and an employer or
an employers’ organisation.
ii. It is concluded by way of a collective agreement.
iii. The employer must deduct the agreed agency fee from the employees identified
in the agreement, subject to the following:
• The employer may only deduct from non-members who are eligible for
membership.
• Conscientious objectors to the policies of the union (on religious or moral
grounds) must pay the fee, which is then paid into a fund administered by the
DoL.
 • The fee of non-members cannot be higher than the subscription fee payable
by members of the majority union.
• Agency fees are paid over to a separate account and can be used only for the
benefit of all employees at the workplace.
• Agency fees may not be used for political affiliation purposes other than
advancing or protecting the socio-economic interests of employees.
• The employer can deduct agency fees from the wages of employees without
their authorisation.

b) What are the FIVE (5) types of information, which the employer is not expected to
disclose to a trade union during collective bargaining? (I0)

Notwithstanding the necessity of the disclosure of information by the employer, the

following information need not be disclosed:
i. legally privileged information (eg communication between a legal representative
and a client);
ii. information which an employer is prohibited from disclosing by any law or court
order;

iii. information of a confidential nature, the disclosure of which will cause substantial
harm to an employee or to the employer (the employee in question may,
however, consent to the disclosure); and,
iv. private personal information relating to an employee unless the employee
consents to the disclosure.

c) Draw a distinction between 'consultation' and 'joint decision making' as

functions of workplace forums and give TWO (2) examples of matters falling
under each of the two functions. (8)

i. Consultation entails that an employer before making certain decisions in the

workplace he/her must firstly consult with the workplace forum and try to reach a
consensus before implementing any of the changes. The employer must allow
the workplace forum the opportunity during the consultation to make
representations and to advance alternative proposals. If the employer dos does
 not agree with these presentations and proposals, he/she must the reasons
thereof. Should there be no agreement between the employer and the
workplace forum, the employer must make use of agreed procedures to resolve
the differences before implementing those proposals. The two matters for
consultation with a workplace forum are as follows:
• restructuring the workplace, including the introduction of new technology and
new work methods;
• changes in the organisation of work.

ii. Joint decision making, in terms of section 86 of the LRA, the employer must
consult and reach consensus with the workplace forum before implementing any
proposal concerning matters that must be the subject of joint decision making.
Should the parties not reach an agreement, the dispute must be resolved through
arbitration. The matters for joint decision-making with the workplace forum are as
follows:
• disciplinary codes and procedures;
• measures designed to protect, and advance persons disadvantaged by unfair
discrimination.

d) Name 4 Functions/powers of a bargaining council

The following are the functions of a bargaining council:
i. The collective bargaining function of a bargaining council
ii. The dispute resolution function of a bargaining council
iii. Other functions of a bargaining council:
• A council may establish and administer pension, provident, medical aid, sick pay,
holiday, unemployment and training funds or any similar schemes or funds for
the benefit of one or more parties to the council or their members.
• Bargaining councils may develop proposals for submission to NEDLAC, or to any
other appropriate forum dealing with policy and legislation, that may affect the
sector and area for which the council has been registered.
• Finally, a bargaining council may confer on workplace forums additional matters
for consultation.
 QUESTION 4

(a) Under which FIVE (5) circumstances does section 65 of the LRA prohibit
employees from engaging in a strike? (I 0)
Section 65 of the LRA provides for the following limitations:
i. Prohibition in a collective agreement
ii. Arbitration is prescribed in terms of an agreement
iii. Disputes that must be referred to arbitration or the Labour Court
iv. Essential and maintenance services
v. An award or a collective agreement regulates the issue in dispute
vi. The issue in dispute is regulated by a determination
vii. The existence of a dispute

Solar & Generators Employees Association (SGEA) and Tested Solar &
Generators (Pty) Ltd (TSG), a company that manufactures and sells generators in
Pretoria, enter into negotiations about a I0% wage increase. SGEA argues that
its members deserve an increase as they have been working hard in
manufacturing solar panels and generators due to the high demand caused by
load shedding; however, TSG states that it cannot afford the increase due to
high costs for manufacturing generators. The parties fail to reach agreement and
SGEA contemplates calling a strike in order to pressurise TSG to accept its
demand.

Advise SGEA on the procedural requirements, which the union must comply
with m order for the strike to be protected. (7)

b) Procedural requirements for a protected strike

i. the dispute must be referred to conciliation
• Conciliation could be before a bargaining council or statutory council with
jurisdiction over the sector. If there is no bargaining/statutory council, the matter
must be referred to the CCMA for conciliation.

• The bargaining council or the CCMA must attempt to resolve the dispute through
conciliation within 30 days of the referral.
• If the parties to the dispute reach an agreement, the dispute is resolved.
• If no agreement is reached, the conciliator must issue a certificate to indicate that
 the matter has not been resolved.
• After this (or after 30 days have gone by since referral of the dispute for
conciliation), the parties can give notice of the proposed strike (or lock-out).

ii. the required notice of the intended action must be given

• If conciliation fails, or 30 days have passed since the referral of the dispute to
either a bargaining council or the CCMA, at least 48 hours’ written notice must be
given of the commencement of the strike or lock-out.
• If the State is the employer, at least seven days’ notice must be given.
• If the employer is amember of an employers’ organisation, notice must be given to
the employers’ organisation. If the issue relates to a collective agreement to be
concluded in a council, notice must be given to that council.
• The LRA does not prescribe what details the notice must contain; it only regulates
that it must be in writing and must be issued 48 hours before commencement of
the strike. In Ceramic Industries Ltd t/a Betta Sanitaryware & another v NCBAWU
& others the Labour Appeal Court held that the primary aim of a strike notice is to
give the employer advance warning of the proposed strike so that it may prepare
for the imminent action.
• The notice must set out the issue in dispute with reasonable clarity.

c) What are the THREE (3) procedural requirements, which a picket must comply
with m order to be protected? (3)
A picket must comply with the following requirements in order to enjoy protection:
• It must be authorised by a registered trade union, for the purpose of peacefully
demonstrating
• In support of a protected strike or
• In opposition of any lock-out
MAY/JUNE 2019
QUESTION 1

(a) What are the FOUR (4) circumstances under which an

employee of a labour broker may hold both the labour broker
and the client Jointly and severally liable in terms of the LRA?
(8)
Under the present LRA, an employee provided by a labour broker may hold the
employer (in other words, the labour broker) and client jointly and severally liable if
the TES contravenes:
i. a collective agreement concluded in a bargaining council that regulates terms
and conditions of employment,
i. a binding arbitration award that regulates terms and conditions of employment,
ii. the BCEA, or
iv. a determination made in terms of the BCEA.

Joint and several liability means that the employee can satisfy her/his claim by
taking action against the employer and the client, but the employee must start with
the employer. If she/he does not perform, the employee can take action against the
client.
The Act simplifies the process by determining that the employee may institute
proceedings against the TES, the client or both.

b) What is fixed term employee

This refers to a contract of employment that terminates on/at:

i. the occurrence of a specified event
i. the completion of a specified task or project, or
ii. a fixed date, other than an employee’s normal or agreed retirement age.

There is no triangular relationship with a fixed-term contract. It is the employer and

employee who conclude a contract of employment which will terminate at some set
stage.
(c) Alf concluded an employment contract with Algoa Logistics (a transport company) in 2015.
The contract contains a restraint of trade clause, which states that Alf will not start a business in
competition with Algoa Logistics within a 10 km radius of the premises of Algoa Logistics, for a
period of five months after terminat10n of the employment contract Alf has Just terminated his
employment contract and wants to challenge the clause as he is of the opinion that it 1 os
unreasonable.

What are the FIVE (5) questions, which a court should consider in determining the
reasonableness of a restraint of trade clause? (I 0)
Reasonableness will be determined with reference to the interests of both the
employer and the employee, public policy and surrounding circumstances.

Questions that should be considered in determining reasonableness are, for

example:
iv. Is there an interest deserving of protection at the termination of the agreement?
v. Is that interest being prejudiced?
vi. If so, how does that interest weigh up against the interests of the other party?
vi. 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?
vii. Is the restraint wider than necessary to protect the protectable interest?

(d) An employer or an employee may not unilaterally change

the terms and conditions of employment Therefore, any
unilateral change of terms and conditions of employment by
an employer or an employee will be unlawful. However, terms
and conditions of employment may be lawfully changed in
four ways.

What are those FOUR (4) ways through which terms and
conditions of employment may be changed? (4)
a. by means of a collective agreement concluded in a bargaining council.
b. by means of a collective agreement concluded outside a bargaining council by
an employer and a trade union
c. by the employer and the employee by means of an agreement.
d. by the Minister of Labour through ministerial and sectoral determinations.
 QUESTION 2

(a) Katt (Pty) Ltd 1s a South African company that manufactures and sells watches
and has about two hundred employees. Due to the effects of the recession the
country is currently facing, Kati's business is not doing well and as a result, Katt is
contemplating to reduce the company costs by retrenching about twenty-five of
its employees

Answer the following questions

i. Which ground of dismissal may Katt rely on to dismiss employees in the

scenario above? Motivate your answer

A dismissal based on operational reasons/requirements; operational aspects of the

business.

ii) Define the ground of dismissal relied on by Katt to dismiss employees you
mentioned above
The concept ‘operational requirements’ is defined and characterized in four
elements, which are, the economic, structural, technological and similar
requirements. An employer’s economic needs and the dismissal of employees as a
result of these needs relate to the financial management of the enterprise including
financial difficulties experienced by the business as a result of changes in the
market, a decrease in demand for its products, a decrease in production itself, in
government subsidies or the cost implications of compliance with the BCEA.

iii) Discuss the consultation process that must be conducted before the dismissal under the
ground mentioned
Consultation process in dismissal for operational reasons
Was there prior consultation?
Consultation must take place when the employer contemplates dismissal; in other
words, at the stage when the employer has not reached a final decision to dismiss
but has merely foreseen the possibility.
In National Union of Metalworkers of SA v Atlantis Diesel Engines (Pty) Ltd (1993)
14 ILJ 642 (LAC) the Labour Appeal Court interpreted this to mean ‘at the earliest
opportunity’

Whom did the employer consult with?

It is also important to know whom the employer must consult with:
• First, the person or group indicated in a collective agreement must be
consulted.
• If there is no collective agreement, a workplace forum (if there is one) and any
registered trade union whose members are likely to be affected by the
dismissals, must be consulted.
• If there is no workplace forum, the employer must consult with any registered
trade union whose members are likely to be affected by the proposed
dismissals. If there is no such union, the employer must consult the
employees (or their nominated representatives) likely to be affected by the
proposed dismissals.

How did the parties consult?

Consultation in terms of section 189(2) means to ‘attempt to reach consensus’. A
single meeting is not sufficient consultation with employees. In Jenkin v
Khumbula Media Connexion (Pty) Ltd [2010] 12 BLLR 1295 (LAC), the court
found that a single meeting during which the appellant employee was told that
the respondent was considering retrenchments and a severance package, was
not sufficient to constitute consultation. Such an abrupt process fell short of pre-
retrenchment requirements as set out in the LRA, particularly if one looks at the
aim of such consultation. The appellant’s consequent dismissal was thus
procedurally unfair.
 Did they attempt to reach consensus?
There are six matters about which the parties must endeavour to reach agreement/
consensus:

• appropriate measures to avoid the dismissals,

• appropriate measures to minimise the number of dismissals,
• appropriate measures to change the timing of the dismissals,
• appropriate measures to mitigate the adverse effects of the dismissals,
• the selection criteria, and
• severance pay.

(b) Distinguish between precautionary and punitive suspensions

➢ Precautionary suspension could be implemented to allow an employer to
investigate the alleged misconduct of an employee, and to decide whether
disciplinary action should be taken against the employee. (Suspension pending
an inquiry).

➢ Punitive suspension fair suspension without pay could be an alternative to a

sanction of dismissal in an attempt to correct the behaviour of the employee. It
can be seen as a form of progressive discipline where appropriate. (Imposed as
a sanction for misconduct following disciplinary action).

QUESTION 3

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

ii. Through membership of a bargaining council

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

iii. Through strike action

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

iv. Through the section 21 procedure

This process entails that the registered trade union must notify the employer in
writing that it seeks to exercise organisational rights. Within 30 days they must meet
to conclude a collective agreement. If they do not conclude then either party can
refer the dispute to the CCMA for conciliation. If no conciliation reached, then the
parties can process to arbitration or alternatively strike / lock out after serving
appropriate notice.

b) Draw a detailed distinction between an Agency-shop agreement and closed-shop

agreement
Agency shop agreement is the agreement that the employees of a business all pay a
fee to the majority trade union in the workplace but members of the minority union
and non-members of no other trade union continue to be members of their minority
as well as those who are not members of any union. Whereas a closed-shop
agreement requires that there be one majority union in the workplace and all
employees must be a party to this majority trade union.
 Differences
i. An agency shop is regulated by section 25 of Labour Relations Act whereas a
closed shop is regulated by section 26 of the said Act.
ii. In an agency-shop agreement, non-members only pay the fee but still
continue with their minority unions whereas in a closed shop, all employees
become part of the majority union and no other union will be allowed in the
business of the employer.
iii. In an agency shop agreement, the employer may only deduct from non-
members who are eligible for membership whereas in a closed shop an
employee who joins the employer’s business and knows that a closed shop
agreement is applicable and he/she refuses to join the union which is a party
to a closed-shop agreement may be dismissed. Meaning that an agency shop
does not infringe on the right of an employee’s freedom of association, but a
closed shop does affect this right to a greater extent.
iv. In an agency shop the employer can deduct agency fees from the wages of
employees without their authorisation whereas in a closed shop the employer
must deduct the agreed subscription fees from the employees identified in the
agreement.

Similarities
i. Concluded by a majority union and an employer or an employers’
organisation.
ii. Concluded by way of a collective agreement.
iii. Union subscription fees may not be used for political affiliation; they may be
used only to advance the socioeconomic interests of the employees.

(c) Trade Union A and Employer B conclude a collective agreement which regulates
different matters of mutual interest between employees and the employer in the
workplace

Discuss the binding nature of this collective agreement and the requirements to be
met in order for the collective agreement to be extended to cover non-parties
 A collective agreement binds:
➢ the parties to the agreement,
➢ each party to the agreement and the members of every other party to the
agreement in so far as the provisions are applicable to them,

➢ members of a registered union and employers who are members of a registered

employers’ organisation that are party to the collective agreement if it regulates:
➢ terms and conditions of employment, or
➢ the conduct of the employers in relation to their employees or the conduct of the
employees in relation to their employer,
➢ employees who are not members of the registered union/s party to the
agreement are bound by the agreement if:
- the employees are identified in the agreement,
- the agreement expressly binds the employees, and
- the trade union/s represent the majority of all the employees employed in the
workplace.

QUESTION 4

a) What are the 4 main functions of a workplace forum:

i. to promote the interests of all employees in the workplace (again, not just union
members),
ii. to enhance efficiency in the workplace,
iii. to consult on certain matters, and
iv. to jointly make decision on specific matters.

b) Reliable Plastic Solut10ns ('RPS') 1s a company that manufactures

plastic containers in Pretoria. Real Plastics ('RP') is a company operating
in Rustenburg, which supplies different companies with material to
manufacture plastic containers Plastic Workers Association ('PWA') is a
trade union with members in both companies (RPS and RP) and has a
dispute with RPS regarding the regulation and payment of overtime
within the company. This ends up in a strike action by members of PWA
employed by RPS, however members of PWA, employed by RP also want
to engage in a strike in support of the demand by employees of RPS

Discuss the nature of the two strikes (strike by employees of RPS and
 strike by employees of RP) and the procedural requirements, which PWA
and its members must comply with in order for both strikes to be
protected in terms of the LRA (15)

The nature of the two strikes depicted in the scenario is called a primary and
secondary strike.

Definition of a strike
A strike is the partial or complete concerted refusal to work, or the retardation or
obstruction of work, by people who are or have been employed by the same
employer or by different employers, for the purposes of remedying a grievance or
resolving a dispute in respect of any matter of mutual interest between employer and
employee and every reference to work in this definition includes overtime work,
whether it is voluntary or compulsory.

In order to qualify as strike action, the employees must comply with the following
three elements contained in the definition:
v. there must be a refusal to work (complete or partial retardation or obstruction
of work)
vi. the refusal must be a concerted action by persons (employed by the same or
different employers), and
vii. the refusal must be for the remedying of a grievance or resolving a dispute in
respect of any matter of mutual interest between an employer and employee.

Strikes are not automatically protected, as there are some hurdles that employees
and employers have to cross before their actions will be protected.

To cross hurdle 1
The parties should ensure that their action complies with the definition of a strike or
lock-out, therefore they must avoid the inherent limitations in the definitions of both
strikes and lock-outs

To cross hurdle 2
The parties should comply with the procedure prescribes by the LRA in section 64.
In certain limited circumstances employers and employees will be exempted from
complying with these procedures

To cross hurdle 3
The parties should ensure that none of the prohibitions against industrial action as
contained in section 65 of the LRA are applicable to their issue in dispute. The
parties will be able to continue with collective action only if the nature of the
particular dispute is one of ‘interest’, meaning the dispute about a change to an
existing right or about creating a new right. Employees may not strike about a
dispute of ‘right’, which would be a dispute about the application and interpretation of
an existing right, since this must be referred to arbitration

This hurdle stands on three legs prescribed by section 64(1):

Procedural Requirements
i. the issue in dispute must be referred for conciliation,
i. a certificate of outcome must be issued, or 30 days must have gone by before
the strike can start, and
ii. the prescribed notice must be given to the employer in the case of a strike,
and to the trade union (or employees if there is no union) in the case of a
lock-out

The issue in dispute:

The LRA defines an ‘issue in dispute’ as: ‘…the demand, the grievance, or dispute
that forms the subject matter of the strike or lock-out’
The issue in dispute must fall within the definition of a strike (or lock-out). The LRA
requires that the parties must try and resolve the issue. First by a bargaining council
(if there is one in that sector), if not then at the CCMA

Certificate of outcome:
The bargaining council or the CCMA must attempt to resolve the dispute through
conciliation within 30 days of the referral. If agreement is reached, it is resolved, if
not, the conciliator must issue a certificate to indicate that the matter has not been
resolved. After this (or after 30days have passed since the referral, a strike action or
lock-out may take place

Prescribed notice:
If conciliation has failed, or 30 days have passed since the referral at least 48 hours
written notice must be given of the commencement of a strike or lock-out. If the State
is an employer, at least 7 days’ notice must be given. If it is a lock-out the union or
employees (if there is no union) must be notified. The LRA does not prescribe what
the notice must contain, it only regulates that it must be in writing and must be
issued 48 hours before commencement of industrial action

There are some exceptions by which the parties do not need to follow the
procedures prescribed by the LRA:
➢ if the parties in dispute are members of a bargaining council and the dispute
followed the procedure set by that council’s constitution
➢ if the parties concluded a collective agreement with the prescribed procedures
to be followed before they strike or lock-out, and they have complied with that
agreement
➢ if the employer implements an unprotected lock-out and the employees strike
in response to that and vice versa
➢ if a strike takes place after the employer has unilaterally changed the terms
and conditions of employment, and the employer fails to rectify this despite
prior warning, and
➢ if an employer refuses to bargain with a union, in which case the dispute must
first be referred for conciliation and then for advisory arbitration before notice
of a strike can be given.

Secondary Strike:
Also known as a solidarity action. The purpose of such a strike is to support of
another strike (known as the primary strike) in order to put pressure on the primary
employer, to accede to the demands of the striking employees. In order for a
secondary strike to be protected, the LRA sets the following requirements:
➢ the primary strike must be protected; the primary strike must have
 successfully crossed all three hurdles for a protected strike
➢ strikers must give their employer seven days’ written notice of the
commencement of the strike; this is to give the secondary employer an
opportunity to put pressure on the primary employer to accept the demands of
the primary strikers.
➢ the harm to the secondary employer must not be more that what is required to
make an impact on the primary employer (proportionality)

c) Discuss whether the em [loyer is obliged to pay/remunerate employees who take

part in a protected strike

The employer does not have to pay employees who are on strike or are locked-out,
since the “no work, no pay” rule applies. The rule is based on the fact that the
contract of employment is reciprocal in nature, that is, performance by the employer
depends on performance by the employee.

There is only one exception to this rule, if the remuneration of employees include
payment in kind in the form of accommodation, the provision of food and other basic
amenities of life, the employer may not withhold that payment in kind during the
strike or lock-out. The employees, must, however, 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.
OCTOBER/NOVEMBER 2018 (Paper 1)

QUESTION 1

a) Distinguish between an employee and independent contractor (10)

EMPLOYEE INDEPENDENT CONTRACTOR

1. appointed to render personal contracted to perform a specified task

services in terms of a job or to produce a specific result
description
2. contract of service contract of work

3. employer has right of supervision No right of supervision

4. worker depends on the employer in Does not depend on the employer to

the performance of duties perform duties

5. employee in terms of an Can work for multiple employers

employment contract is not allowed
to work for anyone else.
6. perform his/her duties personally does not really matter who does the
work as long as the job gets done.

7. paid according to a fixed rate paid according by commission

8. depends on the employer’s tools provides his/her own tools and

equipment

9. the employer has the right to No right to discipline the worker

discipline the worker
10. economically dependent on the Economically independent
employer
 Tests employed to distinguish between an employee and independent
contractor
i. The control test: control is an essential feature of a contract of employment. The
right to control is more extensive in the employment contract than in other types of
contract, such as the contract of an independent contractor or an agency contract.

i. The organisation (integration) test: this test depends of a determination of whether a

person is part and parcel of the organisation.

ii. The multiple or dominant impression test: It is often seen as the standard test
currently used by our courts. The factors, or indications, that the court would take
into consideration to obtain a dominant impression, include the following
➢ The right of supervision, in other words, whether the employer has the right to
supervise the other person, (i.e. ‘the worker’).
➢ The extent to which the worker depends on the employer in the performance
of duties.
➢ Whether the worker is allowed to work for another. Normally, someone who is
an employee in terms of an employment contract is not allowed to work for
anyone else.
➢ Whether the worker is required to devote a specific time to his/her work.
➢ Whether the worker is obliged to perform his/her duties personally. Usually,
someone working for another in terms of an employment contract is obliged to
render the services personally. In the case of an independent contractor, it
does not really matter who does the work as long as the job gets done.
➢ Whether the worker is paid according to a fixed rate or by commission.
➢ Whether the worker provides his/her own tools and equipment.
➢ Whether the employer has the right to discipline the worker. The existence of
this right would normally indicate control, which, in turn, would be indicative of
an employment contract.

b) List the 4 Common law duties of the employer and the 4 common law duties of
the employee
 The employee has the following duties:
i. To tender his/her services
ii. To work competently and diligently
iii. To obey lawful and reasonable instructions of the employer
iv. To serve the employer’s interests and act in good faith

The employer has the following duties:

i. To remunerate the employee
ii. A duty to provide work
iii. Safe working conditions
iv. A general duty of fair dealing with employees?

c) Name and explain the 3 Forms of sexual harassment

i. Quid pro quo harassment
A man/woman is forced into surrendering to sexual advances against his/her will
for fear of losing a job-related benefit such as an increase in salary or even
promotion.

i. Sexual favoritism
A person in authority rewards only those who respond to his/her sexual advances
while victimisation occurs where an employee is victimised or intimated for failing
to submit to sexual advances.

ii. Hostile working environment harassment

An abusive working environment is created, for instance, jokes, sexual
proportions or other social innuendoes which are offensive to an employee but
not necessarily directed at him/her. Pornography pictures on office walls etc.

d) Discuss impossibility of performance as a way of terminating the employment

contract
 Supervening impossibility of performance
This relates to change in circumstances of the employee that renders him/her
incapable of performing his/her duties. If it becomes impossible for one party to the
employment contract to perform in terms of the contract, the contract comes to an
end and no performance is required from either of the parties. This would, for
example, happen where an employee is appointed as a caretaker of a building and
the building is destroyed by a fire. The death of an employee during the term of the
contract is another event that will render the performance of service impossible and
terminate the contract.

QUESTION 2
a) Mamikie & Ouma CC (MO) is a supermarket owned by Dike and has 55 employee’s
MO was ordered by the Department of Labour to comply with the affirmative action
policy as it is one of the designated employers in terms of EEA
Who are designated employers in terms of the EEA?
i. an employer who employs 50 or more employees;
ii. an employer who employs fewer than 50 employees but whose annual
turnover in any given year exceeds a certain level (these levels are laid
down in Schedule 4 of the EEA);
iii. municipalities;
iv. organs of State (defined in section 239 of the Constitution); and
v. an employer appointed as a designated employer in terms of a collective
agreement

b) Discuss Sick leave as prescribed by the BCEA

The sick leave cycle is a period of 36 months’ employment with the same employer.
➢ During every sick leave cycle, an employee is entitled to six weeks paid sick
leave.
➢ During the first six months of employment, an employee is entitled to one day’s
paid sick leave for every 26 days worked.
➢ If the employee is on sick leave, the employee is entitled to the wage normally
payable for work on that day.
➢ In terms of section 23(1) of the BCEA, an employer is not required to pay an
 employee if the employee has been absent from work for more than two
consecutive days or on more than two occasions during an eight-week period if
the employee does not (at the request of the employer) produce a medical

certificate stating the employee was unable to work for the duration of the
employee’s absence on account of illness or injury.

c) Describe Constructive dismissal

i. Where an employee resigns because the employer made continued employment
intolerable for the employee.
ii. Although the employee (and not the employer) terminates the contract, it is not
done voluntarily. The employer’s conduct made it impossible for the employee to
continue working for the employer.
iii. In order to succeed with a claim of constructive dismissal the employee will have
to prove the intolerability of the working relationship. The courts have interpreted
this to mean that resignation was a matter of last resort. There must have been
no other motive for the resignation and the employee would have continued with
the employment relationship if it had not been for the employer’s unacceptable
conduct.
iv. This test is objective and the mere fact that an employee resigned because
she/he felt aggrieved is not sufficient.

QUESTION 3

a) An association of employees need not be registered in order to qualify as a trade

union; however, registration is beneficial since only a registered trade union is
entitled to certain rights. What are those rights?
Only registered trade unions may
i. acquire organisational rights,
ii. conclude a binding collective agreement,
iii. apply for the establishment of a workplace forum,
iv. apply for the establishment of a bargaining council and represent its members at
the CCMA.
b) 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”
i. a refusal to recognise a trade union as a collective bargaining agent;
ii. a refusal to agree to establish a bargaining council;
iii. the withdrawal of recognition of a collective bargaining agent;
iv. a resignation of a party from a bargaining council; or

v. a dispute about appropriate bargaining units, appropriate bargaining levels, or

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

c) Distinguish between a trade union and workplace forum

Trade union
An association of employees whose principal purpose is to regulate relations
between employees and employers including an employer’s organisation. It only
protects those employees who are members of the trade union. It is part of the
collective bargaining system.

Workplace forum
Workplace forums were introduced to enable all employees to participate in decision-
making in the workplace, irrespective of their trade union membership. These forums
are aimed at dealing with non-wage-related matters separately from the collective
bargaining system, which is adversarial in nature.

d) The LRA makes provision for Organisational rights for trade unions. What are the
organizational rights to which a sufficiently representative trade union is entitled?
The following five organisational rights are provided for in terms of the LRA and can
only be acquired by a registered trade union:
i. access to the workplace;
ii. the deduction of trade union subscriptions from the salaries of employees;
iii. election/recognition of trade union representatives;
 iv. leave to these trade union representatives for certain purposes; and
v. access to certain information held by the employer.

QUESTION 4

a) Discuss the circumstances under which an employer may dismiss employees who
are engaged in a Protected strike
The LRA provides that an employer may not dismiss an employee for participating in
a protected strike or for any conduct in contemplation or in furtherance of a protected
strike. If the reason for a dismissal is that the employee participated in or supported,
or indicated an intention to participate or support, a protected strike, the dismissal
will be automatically unfair. The employees may however be dismissed for one of
two reasons:
i. namely misconduct (damage to property, assault, intimidation of other
employees) committed during the course of the strike. Employees who during a
protected strike commit acts of misconduct such as assault or malicious damage
to property may be dismissed; The employer must however ensure that the
dismissal is fair and in accordance with the statutory requirements for a fair
dismissal for misconduct; or
i. on the basis of the employer’s operational requirements.

b) Discuss the “No work, no pay” rule and indicate whether it applies to both
protected and unprotected strikes
Given that a contract of employment is reciprocal in nature, the common-law rule of
‘no work, no pay’ applies to strikes and lockouts. Employers do not have to
remunerate employees for services not rendered during a protected strike. There is
however an exception to the ‘no work, no pay’ rule which applies in the case of
protected strikes, i.e., if the employees’ remuneration includes payment in kind in the
form of accommodation, the provision of food and other basic amenities of life, the
employer may not stop this payment in kind during the strike if the employees
request that it continues. After the strike the employer may recover the monetary
value of the payment in kind from the employees by way of legal proceedings in the
Labour Court.
 The principle of ‘no work, no pay’ applies to both protected and unprotected strikes

c) UU Association (UUA) represents employees within the traffic policing services,

employed by the Thabang Municipality. UUA approaches the municipality for an
across the board wage increase of 12%. The municipality is adamant that due to
lack of funds, it can only afford 7%. The members of UUA are unhappy about tis
and are thinking of ways to force their employer to accede to the demand.
Advise members of UUA on whether they are allowed to go on strike in support of
their demand

Employees who are engaged in the provision of essential and maintenance services
are prohibited from striking. This is mainly because the provision of such services is
important either to society or the employer.

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

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

Definition of essential services

An ‘essential service’ means a service, of which the interruption endangers the life,
personal safety or health of the whole or any part of the population and also includes
the Parliamentary Service and the South African Police Service.

Discussion
➢ Although employees engaged in essential services are prohibited from striking,
the LRA makes provision for an exception, namely, where there is a collective
agreement which provides for the provision of minimum services.
➢ Employers and unions involved in essential services can conclude collective
agreements providing for the maintenance of certain ‘minimum services’ in a
service which has been designated as an essential service. If such a collective
agreement is approved and ratified by the ESC, employees who provide the
minimum service will not be able to strike as they will now be regarded as an
essential service in respect of the employer, while the rest of the ‘essential
 services’ may strike.
➢ The terms and conditions of employment of employees who provide minimum
services will not be subject to arbitration in terms of section 74 but will be
determined by the outcome of the strike by other employees who are not
engaged in the minimum service.

➢ An employer employing essential and non-essential service employees may face

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

d) What is the Difference between a strike and protest action?

The main difference between a strike and protest action lies in their purposes. The
purpose of a strike has to do with matters of mutual interest between the employer
and employees whereas that of a protest action has to do with socio economic
interests such as Education.
MRL3702 OCT/NOV 2018 (paper 2)
QUESTION 1

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

i. collective agreement
ii. membership of a bargaining council
iii. strike action
iv. section 21 procedure

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

MEMBERSHIP OF A BARGAINING COUNCIL

A registered trade union that is a party to a bargaining council, automatically
acquires the right 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) Vicarious liability
➢ According to this doctrine an employer is liable for the unlawful or delictual acts
of an employee performed during the course of business
➢ 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.

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 which 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

employee 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) DISMISSAL
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.

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 employers
economic needs; was operationally justifiable on rational grounds; there was a
proper consideration of alternatives and selection criteria was fair and objective.
LIFO and FIFO are procedural methods that are used to determine whether an
employer used fair and objective selection criteria in dismissing employees based on
operational reasons. LIFO means last in, first out FIFO means first in, first out
b) Where an employee resigns because the employer made continued employment
intolerable 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

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) Functions of a workplace forum

to promote the interests of all employees in the workplace
to enhance efficiency in the workplace
To consult on certain matters and to jointly make decisions on specific matters.

QUESTION 3

a) Substantive equality (s9 (2)) of the Constitution. Substantive equality recognizes that
opportunities are determined by an individual’s status as a member of a group(s).
Discriminatory acts are 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) Occupational detriment
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 overlaps 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
 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.

QUESTION 4

a) STRIKE
Strike’ is defined as follows:
‘…. the partial or complete concerted refusal to work, or the retardation or
obstruction of work, by persons who are or have been employed by the same
employer or by different employers, for the purposes of remedying a grievance or
resolving a dispute in respect of any matter of mutual 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 lockouts 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 Yes
lock-out?
2 Were procedural requirements complied with? Yes
3 Are there any prohibitions against the action? No

b) A picket must be peaceful in order to enjoy the protection of the LRA. Picketers may:
➢ carry placards
➢ chant slogans
➢ sing, and
 ➢ dance

but they may not do the following:

➢ physically prevent members of the public, including customers, other employees

and service providers, from gaining access to or leaving the employer’s premises
➢ any action which may be unlawful, including but not limited to any action which is,
or may be perceived as violent

c) Essential services’ means:

➢ a service, the interruption of which endangers the life, personal safety or
health of the whole or part of the population
➢ the Parliamentary service, and
➢ the South African Police Service

Whether essential or not is determined by the Essential Services Committee and

some examples include; air traffic controllers, municipal traffic police, supply and
distribution of water, power, fire-fighting and correctional services.

‘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.
2018 – MAY/JUNE EXAMINATION PAPER
QUESTION 1

a) List the 6 actions that are defined as dismissal in terms of section 186(1) (a) to
(f) of the LRA

• Employer terminated COE with or w/o notice

• Employer refused to allow employee to resume work after maternity leave
• Employer dismissed a number of employees for the same/similar reasons +
offered to re-employ one / more of them, but refused to re-employ another;
• Employee reasonably expected employer to renew fixed-term contract on
same/similar terms but employer offered to renew it on less favorable 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
favorable to employee than those provided by old employer

b) Draw a distinction between absence without leave and desertion

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 e.g. 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) Define “foreign national” in terms of employment Services Act 4 of 2014
… ‘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) After a successful interview and aptitude test, Lemekwane was employed by

Network15, a company which provides security services in Bapong-ba-Mogale. At
the time of his employment, Lemekwane was HIV positive and he did not disclose
this to Network15. The company became aware of it ten months later. Network15
dismissed Lemekwane on the basis that he did not disclose his HIV status and
therefore cannot be trusted.

Discuss whether or not Lemekwane had a duty to disclose his HIV status to
Network15 and examine the possible legal remedies available to him in terms of
the Constitution, the LRA and EEA.

HIV/Aids testing in the workplace and dismissal

The issue if HIV/Aids is a sensitive one, particularly in our country, so much so that a
code of good practice has been established. The code makes reference to testing
being justifiable. It also makes reference to dismissal. Medical testing is prohibited in
the broad sense but may be justifiable due to the inherent requirements of a job. A
nurse with HIV poses an inherent requirement question. Although it is not necessary
that she cannot and will not be able to perform her duties, as it can be managed,
there are possible dangers to other staff and patients that cannot be denied. In a
case between Hoffman and SAA, the High court agreed that the employee was
incapable of performing the job with particular regard to public opinion. The
Constitutional Court overruled saying that the right of HIV people to be protected
from stigmas and prejudice was of a far greater social value than the prejudice that
SAA would possibly suffer. The case highlighted inherent requirements and the
courts attitude. The actual policy of blood testing was indeed important with regard to
inherent requirements.

b) Discuss the Requirements prescribed by law for the conclusion of a valid contract,
including a contract of employment
A contract of employment must meet all the requirements that the law prescribes for
 the conclusion of a valid contract. These requirements are:
i. There must be an agreement between the parties
ii. The parties to the contract must have the capacity to act
iii. The agreement must be legally possible
iv. Performance under the agreement must be physically possible
v. If any formalities are prescribed for the formation of that particular type of
contract, then these formalities must be satisfied

c) List the Terms and conditions of employment that are non-variable core terms in
terms of the BCEA
i. Maximum working hours
ii. months maternity leave
iii. Not less than 2 weeks annual leave
iv. Provisions relating to night work
v. Provisions relating to sick leave

QUESTION 3

a) List the 5 Organisational rights that trade unions can 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
i. Access premises of the employer – sufficient representation
ii. Deduction of trade union membership fees – sufficient representation
iii. Election of shop stewards – majority representation
iv. Leave for union activities – sufficient representation
v. Disclosure of information – majority representation

b) Discuss whether the right of trade unions to conclude closed shop agreements
and agency shop agreements infringes employee’s right to freedom of association
A closed shop agreement is an agreement entered into between a representative
trade union and an employer in terms of which all employees covered by the
agreement must be members of the trade union.

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

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

Infringement of freedom of association

These two agreements seem to be infringing employees’ right to freedom of
association, however it must be noted that section 23(6) of the Constitution provides
for union security arrangements. Agency shop and closed shop agreements are thus

not automatically unconstitutional. However, the limitation by these agreements on

freedom of association must still comply with the requirements of section
36(limitation clause) of the Constitution. Furthermore, in order to limit the possibility
of agency shop and closed shop agreements being unconstitutional on the basis that
they infringe freedom of association sections 25 and 26 of the LRA provides certain
pre-requisites for concluding valid agency shop or closed shop agreements.

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

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

c) Which information is the employer not obliged to disclose to a majority trade

union during the collective bargaining process?
An employer can refuse to reveal information if they feel it is not relevant to the
outcome for which the union seeks the information.
i. Employers need not disclose legally privileged information, or where they are
bound by a court order or would be contravening a law.
ii. Employers need not disclose information about an employee that is private and
for which they have no consent to disclose.
iii. Employers need not disclose information that could cause substantial harm to an
employee 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) What are the 3 important elements that distinguish a “collective agreement” from
any other agreement between employees and employers?
i. A collective agreement must be in writing.
ii. Only a registered union can be a party to a collective agreement

iii. A collective agreement must regulate terms and conditions of employment or any
other matter of mutual interest between a trade union and the employer or
employers’ organizations

b) Describe the Purpose of each of the following conducts:

Strike - for the purposes of remedying a grievance or resolving a dispute in respect

of any matter of mutual interest between an employer and employee.

Picketing - purpose must be to encourage peacefully non – striking employees and

members of the public to oppose a lock-out or to support a strike. (to exert more
pressure on the employer during the strike). therefore, its conduct in furtherance of a
strike.

Protest action - To promote or defend the socio-economic interests of workers /

pursue economic interests.

c) A dispute arose between Pure Gold Mining (PGM), a gold mining company in
Mokopane and the majority trade union, Gold Workers Association (GWA). GWA
demanded R8 000 across the board wage increase and a change in the shift
system. PGM offered GWA only R 2000 and indicated that there is no need to
change the shift system as the system has been effective for the past 10 years.
The parties failed to reach agreement on the two matters. Without following the
procedure prescribed by the LRA, members of GWA embarked on strike action.

Advise PGM on possible actions it can institute against the striking employees.
 i. Interdict
If a strike does not comply with the definition provided by the LRA and/or
provisions of sections 64 and 65, it will be unprotected, and the Labour Court
has jurisdiction to grant an interdict to stop the unprotected strike or lock-out.

ii. Compensation
The Labour Court may order the payment of just and equitable compensation to
anyone who suffered a loss as a result of an unprotected strike. Compensation
will not be granted unless it can be proved that the loss was as a result of the
strike. In deciding whether to grant the order for payment of compensation, the
court must have regard to:

• attempts made to comply with the provisions of the Act,

• the extent of those attempts, and

• whether the strike or lock-out was premeditated. Other factors to be

considered are whether the strike was in response to unjustified conduct
by the employer and whether there was compliance with an interdict. The
court must also take into account the interests of orderly collective
bargaining, the duration of the strike and the financial position of the
employer.

iii. Dismissal
Strikers who participate in an unprotected strike or certain forms of conduct in
contemplation or furtherance of an unprotected strike, may be dismissed.
However, participation in an unprotected strike does not necessarily justify
dismissal, the dismissal will only be fair if it is both substantively and procedurally
fair.

d) Under which circumstances do the prescribed procedure for a protected strike or

lock-out need not be followed
Parties to a dispute need not comply with the prescribed conciliation and notice
requirements laid down in section 64(1) of the LRA under the following
circumstances:
i. if the parties to the dispute are members of a council and the dispute has been
dealt with by that council in accordance with its constitution.
ii. if parties entered into a collective agreement in terms of which they agree that
certain dispute resolution procedures have to be followed prior to a strike or lock-
out being called.
iii. If an employer embarks on a lock-out that is not protected in terms of the LRA, its
employees will be able to strike in response to that unprotected lock-out without
complying with the procedures set out in section 64. By the same token, if
employees embark on an unprotected strike, an employer will also be able to
respond by means of an automatically protected lock-out, despite the fact that the
employer has not complied with the provisions of section 64.
iv. if an employer has unilaterally introduced changes to the terms and conditions of
employment of employees (ie the employer has done so without the employees’
consent) or intends or proposes to do so.
2017 – MAY / JUNE EXAMINATION PAPER
QUESTION 1
1.1 Distinguish between employee and independent contractor [10]
EMPLOYEE INDEPENDENT CONTRACTOR

i. appointed to render personal contracted to perform a specified task

services in terms of a job or to produce a specific result
description
ii. contract of service contract of work

iii. employer has right of supervision No right of supervision

iv. worker depends on the employer in Does not depend on the employer to
the performance of duties perform duties

v. employee in terms of an Can work for multiple employers

employment contract is not allowed
to work for anyone else.
vi. perform his/her duties personally does not really matter who does the
work as long as the job gets done.

vii. paid according to a fixed rate paid according by commission

viii.depends on the employer’s tools provides his/her own tools and

equipment

ix. the employer has the right to No right to discipline the worker
discipline the worker
x. economically dependent on the Economically independent
employer
1.2 Discus the requirements prescribed by the law for the conclusion of a valid
contract, including a contract of employment [10]
The law prescribes certain requirements for the conclusion of a valid contract.
The following are the requirements of a valid employment contract;
i. There must be consensus between the parties
ii. Parties should have necessary capacity to contract
iii. Performance under the contract must be physically possible
iv. Agreement must be legally possible and must be lawful
v. If formalities are prescribed these formalities must be complied with

1.3 What are the four circumstances under which the employees of a labour
broker may hold both the labour broker and the client jointly and severally
liable in terms of the LRA? [8]
TES and the client are jointly and severally liable if the TES, in respect of any of
its employees, contravenes –

i. a collective agreement concluded in a bargaining council that regulates terms

and conditions of employment;
ii. a binding arbitration award that regulates terms and conditions of
employment;
iii. the BCEA; or
iv. a sectoral determination made in terms of the BCEA.

1.4 When can an employee take family, responsibility leave in terms of BCEA [2]?

• Family responsibility leave is taken for the birth or illness of a child or for
the death 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
Who are designated employers in terms of EEA? 10]
Designated employers are employers;

i. Employer who employs 50 or more employees;

i. an employer who employs fewer than 50 employees but whose annual
turnover in any given year exceeds a certain level (these levels are laid down
in Schedule 4 of the EEA);
ii. municipalities;
iv. organs of State (defined in section 239 of the Constitution); and
v. an employer appointed as a designated employer in terms of a collective
agreement.

2.2 Discuss the unfair conduct of the employer relating to promotion as a form
of 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

QUESTION 3

3.1 Misconduct
i. Procedural requirements for misconduct
1) Did the employer conduct an investigation to determine whether there are
grounds for dismissal? yes
2) Did the employer notify the employee of the allegations (in a form and
language that the employee could reasonably understand)?
3) Did the employee get reasonable time to prepare? yes
4) Was the employee allowed to state a case in response to the allegations?
Yes
5) Was the employee allowed the assistance of a union representative or
co•employee? yes
6) Did the employer after the enquiry communicate the decision taken, and
furnish the employee with written notification of the decision as well as the
reasons for the decision? yes
7) If the employee is dismissed, did the employer remind her/him of any rights to
refer the matter to a bargaining council or the CCMA? Yes

ii. Constructive dismissal

3.2 What are the four requirements for the registration of Trade Unions prescribed
by section 95 of the LRA [4]
i. it must adopt a name or abbreviation which is not so close to that of any other
union so as to cause confusion,
ii. it must adopt a constitution that complies with certain requirements,
iii. it must have an address in South Africa, and
iv. it must be independent from any interference or influence by the employer.

3.3 What are the three important elements that distinguish a collective
agreement from any other agreement between employers and employees.[6]
i. A collective agreement must be in writing.
ii. Only a registered union can be a party to a collective agreement
iii. A collective agreement must regulate terms and conditions of employment or any
other matter of mutual interest between a trade union and the employer or
employers’ organizations

3.4 indicate whether each of the following is a matter for consultation or a matter
for joint decision making between the employer and a workplace forum

i. disciplinary codes and procedures – joint decision making

ii. job grading – consultation

QUESTION 4

4.1 Discuss the no work no pay rule and indicate whether it applies to both
protected and unprotected strikes [8]
Given that a contract of employment is reciprocal in nature, the common-law rule of
‘no work, no pay’ applies to strikes and lockouts. Employers do not have to
remunerate employees for services not rendered during a protected strike. There is
however an exception to the ‘no work, no pay’ rule which applies in the case of
protected strikes, i.e., if the employees’ remuneration includes payment in kind in the
 form of accommodation, the provision of food and other basic amenities of life, the
employer may not stop this payment in kind during the strike if the employees
request that it continues. After the strike the employer may recover the monetary
value of the payment in kind from the employees by way of legal proceedings in the
Labour Court.

The principle of ‘no work, no pay’ applies to both protected and unprotected strikes

4.2 Members of Our Power Union (OPU) employed by AA Manufacturers (AA)

engage in a strike in support of a demand regarding a 12% wage increase. The
strike goes on for a week, 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]

Procedural requirements for a protected strike

A. the dispute must be referred to conciliation

• Conciliation could be before a bargaining council or statutory council with

jurisdiction over the sector. If there is no bargaining/statutory council, the matter
must be referred to the CCMA for conciliation.
• The bargaining council or the CCMA must attempt to resolve the dispute through
conciliation within 30 days of the referral.
• If the parties to the dispute reach an agreement, the dispute is resolved.
• If no agreement is reached, the conciliator must issue a certificate to indicate that
the matter has not been resolved.
• After this (or after 30 days have gone by since referral of the dispute for
conciliation), the parties can give notice of the proposed strike (or lock-out).
B. the required notice of the intended action must be given

• If conciliation fails, or 30 days have passed since the referral of the dispute to
either a bargaining council or the CCMA, at least 48 hours’ written notice must be
given of the commencement of the strike or lock-out.
• If the State is the employer, at least seven days’ notice must be given.
• If the employer is amember of an employers’ organisation, notice must be given to
the employers’ organisation. If the issue relates to a collective agreement to be
concluded in a council, notice must be given to that council.
• The LRA does not prescribe what details the notice must contain; it only regulates
that it must be in writing and must be issued 48 hours before commencement of
the strike. In Ceramic Industries Ltd t/a Betta Sanitaryware & another v NCBAWU
& others the Labour Appeal Court held that the primary aim of a strike notice is to
give the employer advance warning of the proposed strike so that it may prepare
for the imminent action.
• The notice must set out the issue in dispute with reasonable clarity.

ii. Advise BB on the nature of the strike by its employees and on the procedural
requirements which must be met in order for it to be protected. [6]
Secondary strikes procedural requirements
a. The primary strike itself must be protected
• The secondary strike will be protected only if the primary strike is protected.

b. secondary strikers must give their employer seven days’ written notice of the
commencement of the strike
• The secondary employer must receive seven days’ written notice of the
commencement of the secondary strike. This is to give the secondary
employer an opportunity to put pressure on the primary employer to accept
the demands of the primary strikers.
 • If the secondary strike is part of a strike about dismissals for operational
reasons, or the secondary employer is the State, 14 days’ written notice must
be given to the secondary employer before the strike can commence.

c. the harm to the secondary employer must not be more than what is required to
make an impact on the primary employer.
• The nature and extent of the secondary strike must be reasonable in relation
to the possible direct or indirect effect that it may have on the business of the
primary employer.
• This requirement protects the secondary employer and ensures that the
secondary strike does not cause significant harm to the secondary employer
without having any effect on the primary employer.
• The LRA permits the Labour Court to consider the ‘proportionality’ of the
proposed secondary strike in relation to the primary employer by weighing up
the potential effect of the secondary strike on the primary employer against
the potential effect of the strike on the secondary employer. If the secondary
employer is of the opinion that the requirements for the secondary strike have
not been met, the employer may approach the Labour Court for an interdict to
prevent or limit the secondary strike.
• In the example above, the secondary strike would not have a proportional
effect on A if B supplied only 2% of A’s raw wood. While in such instance the
secondary strike may bring great financial loss for B, it will have very little
impact on A.

4.3 What is the difference between a strike and a protest action? [4]
The main difference between a strike and protest action lies in their purposes. The
purpose of a strike has to do with matters of mutual interest between the employer
and employees whereas that of a protest action has to do with socio economic
interests such as Education.
2016 – MAY/JUNE EXAMINATION PAPER
Question 1
a) List the (4) four common law duties of the employer and four (4) common law
duties of the employee.[8]
Employee’s duties
To enter into the service of the employer
to tender services to the employer
To work competently and to exercise due care and diligence
to obey lawful and reasonable instruction of the employer to
serve the employer’s interest and to act in good faith

Employer’s duties
To remunerate the employee
to provide work
Duty to provide safe working conditions
A duty of fair dealing with employees

b) List the (6) six actions that are defined as “dismissals” in sections 186(1)(a) to
(f) of the LRA [12]
In terms of section 186(1) (a) dismissal means;
i. An employer terminated contract with or without notice
ii. An employee reasonably expected the employer to renew affixed term contract of
employment on same or similar terms but offered to renew on less favorable
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 employees 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 favorable 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 justify testing,
• in terms of social policy,
• when they is need for fair distribution of employee benefits or
• it’s the inherent job requirements

d) In terms of the LRA, a labour broker and the client could be held jointly and
severally liable for the contravention of, amongst others, the provisions of the
BCEA. Explain what jointly and severally means [5]
This means the action of one of the parties can be imputed to the other and vice
versa. In practice the labour broker can be sued jointly with the client for the delicts
of a client. The parties can also be sued separately for the actions of the other.

Question 2
a) Distinguish between the following forms of sexual harassment; victimisation,
quid pro quo harassment and sexual favouritism. [3]

i. Victimisation – is when an employee is victimised or intimidated for failing to

submit to a sexual advance
i. Quid pro quo – is where management coerces employees to surrender to sexual
advances in order to be promoted or other benefits
 ii. Sexual favouritism – is when a person in a position of authority rewards only
those who respond to their sexual advances

b) Rababedi and Lekau decided to start a business that manufactures dairy

products. The business has to take into account that dairy products are highly
perishable, and this requires them to vary some of the minimum terms and
conditions of employment set by the BCEA. Rababedi tells Lekau that she
once read that although employers were allowed to vary minimum terms and
conditions of employment, they could not vary the so called “core” terms at
all.
i) List the terms and conditions of employment that are non-variable core
terms in terms of the BCEA [4]

i. Maximum working hours

ii. Provisions relating to sick leave
iii. Four months’ maternity leave
iv. Not less than two weeks’ annual leave
v. Provisions relating to working night shift

ii) Tshidi, who has a qualification in marketing, is appointed as marketing

officer by Rababedi and Lekau. What are the three possible outcomes when
her probation period expires? [3]

i. Extending the probation period in order to enable the employee to improve his
performance
ii. To dismiss the employee
iii. To confirm the appointment of the employee

iii) After the business has been in operation for some time, 5 of its 39
employees take maternity leave at more or less the same time. On their
return they are formed that their services are no-longer required, as new
employees were employed in their positions. Discuss the nature of the
 dismissal of the five employees who went on maternity leave and whether
their dismissal was justified. [5]
This dismissal is defined in section 187 of the LRA as automatically unfair. A
dismissal is defined as automatically unfair if the employer in dismissing the
employee works contrary to section 5 and one of the reasons for the dismissal is
due to the employee’s pregnancy or intended pregnancy or any reason relating
to her pregnancy.

c) The definition of operational requirements in the LRA distinguishes between

four broad categories of operational categories. List the four categories [4]
i) Economic
ii) Technological
iii) Structural or
iv) Similar needs of the employer

d) During consultations between the employer and the trade union prior to
dismissal for operational reasons, the parties must attempt to reach
consensus on six matters. List these matters. [6]
• Appropriate measures to minimise the number of dismissals
• Appropriate measures to avoid dismissals
• Appropriate measures to change the timing of the dismissals
• Appropriate measures to mitigate the adverse effects of the dismissals
• 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 workplace are the
following;
i) Right of access to the premises of the employer- sufficient representation
ii) The right to have trade union membership fees deducted by the way of a
stop order - sufficient representation
 iii) The right to elect trade union representative i.e. shop stewards- majority
representation
iv) The right of trade union representatives (shop stewards) to get time off for
trade union activities – sufficient representation
v) The right to disclosure of information – majority representation

Question 4
a) The LRA encourages collective bargaining, but does not compel parties to
bargain, and 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.
2015 – OCT/NOV EXAMINATION PAPER
QUESTION ONE

Write brief notes on the following:

a) Formal equality as a form of equality based on section 9(3) and (4) of

the SA Constitution
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) fixed-term employees as a category of non-standard employees

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) the duty of the employer to deal fairly with the employee

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) constructive dismissal as a form of dismissal in terms of the LRA

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 meaning of "same work" for purposes of "equal pay for work"

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 favorable 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) the meaning of "suitably qualified" for purposes of benefiting from

affirmative action

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) the meaning of"small employer" in the context of dismissal based on operational

reasons
A small employer employs a small number of employees eg less than 50.

h) maximum working hours as provided by the BCEA

 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 meaning of restraint of trade in the contract of employment

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 as a form of industrial action

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) Seane (Ply) Ltd ("Seane") Is a reputable and reliable motor vehicle dealer ,n Difateng
Seane sells both luxury and semi luxury cars In 2014, Seane encountered financial
problems since ,it could not sell enough cars compared to previous years As a result,
three directors were dismissed (retrenched) in an attempt to save the business The hard
limes continued and in June 2015. Seane wants to dismiss (retrench) more employees
and approaches you for advice
Answer the following questions
i. Underwhich category of operational reasons will the dismissal of employees in
this case fall? Motivate your answer
Economic needs because Seane (Pty) Ltd encountered financial difficulties.
ii. Assume that the reason for their dismissal Is due to the fact that Seane bought a
new machine in order to increase production Will this constitute a valid reason for
dismissal based on operational reasons? Motivate your answer
Yes. As long as fairness and procedures in terms of the LRA are followed.
iii. What do the concepts LIFO and FIFO mean for purposes of a fair dismissal
based on operational reasons?

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) Draw a distinction between “absence without leave and disertion

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) Abram applied for the post of Managing Director at Hamba Soya Hotel. When he
applied for this position, Abram indicated in his CV that he had completed an MBA
degree, whereas he actually obtained it seven months after his appointment .When this
was discovered, Abram was charged according to the company policy with dishonesty
based on the misrepresentation made in his CV
Discuss whether or not Hamba Soya Hotel may dismiss Abram based on
dishonesty (6)

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) Collective bargaining is the core of collective labour law. Describe the process
of "collective bargaining"
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:

i. Plant level - this takes place between the employees and the employer for/in a
specific plant or factory.
ii. Sector level - this takes place in a specific sector of the economy in a specific
geographical area.
iii. Industry level - this is bargaining for a whole industry, e.g. mining
 The Workers' Rights Union ("WRU"), a registered trade union, and Amandla
Manufacturers ("AM"), a member of the Manufacturer Employers' Association,
conclude a collective agreement which regulates the terms and conditions of
employment of employees Both the WRU and AM are parties to the Bargaining
Council for the Manufacturing Industry in Gauteng

b) Discuss the binding nature of a collective agreement concluded by a bargaining

council (6)

Main goal is to reach consensus on issues and formalise their relationship via a
collective agreement. 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 member insofar as it relates to them
• Members of registered trade union and employers for issues related to;
o Terms and conditions
o Relationships of employers to employees and vice versa
• Employees who are not members of registered unions are bound if;
o They are identified in the agreement
o The agreement expressly binds them
o The union represents the majority of the workers

A collective agreement may change conditions of work provided it is not in conflict

 with the BCEA

c) Draw a distinction between "closed shop agreements" and "agency shop

agreements"
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) Discuss the requirement that a picket must be authorised by a registered trade

union in order to be protected
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
2015 – MAY / JUNE EXAMINATION PAPER
QUESTION ONE

a) List the 3 categories of non-standard employment. [3]

a) Part-time workers
b) Fixed term
c) Temporary Employment Services (labour brokers)

b) Discuss the purpose of a restraint of trade clause in an employment contract.

[4]

A restraint of trade clause is inserted in the contract to protect the employer’s

interests, goodwill, and business connections against unfair competition during and
after employment. It also helps prevent an employee from competing with his
employer within a specific area and specific period.

c) What are the general conditions set by the Employment Services Act
regarding the employment of foreign nationals? [3]
- The Act provides that any foreign nationals employed in S.A will be protected by
fair 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.

d) Discuss the employer’s duty to provide the employee with safe working
conditions. [5]

The employer is obliged to provide the employee with safe working conditions. This
include the employer’s duty to;
• Provide employees with safety devices or install safety equipment
 • Exercise proper supervision

• Protect employees from harassment

• Contribute to the Compensation Fund to ensure that employee injured at work
will be compensated

e) Discuss sick leave as prescribed by the BCEA [5]

The BCEA provides for 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.

f) 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.

g) What are the factors that have to be considered in determining whether a

person from a designated group is suitably qualified to benefit from affirmative
action? [4]
In Fourie the Labour court held that in deciding on the degree of disadvantage the
following should be considered;
• South African history
• The imbalances of the past
• The fact that apartheid was designed to protect white people
• The fact that the black particularly African employees suffered the brunt 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]
Closed shop and agency shop agreements.

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

ii. A certificate of the outcome must be issued
iii. 30 days must have passed from date of referral to conciliation
iv. At 48 hours’ prior written notice must be given to the other party.

The strike will only be protected if these requirements are complied with. It looks as if
some requirements have not been complied with for example the 30 days have not
passed from referral and the facts do not state whether a certificate of the outcome
was issued, and the 48 hours’ prior written notice is not there. Therefore, MPEA’s
strike will not be protected.

h) What are the requirements which must be met in order for protest action to
enjoy protection? [4]
In terms of section 77 of the LRA all employees not engaged in essential services
have the right to participate in a protest action if the following requirements are met:
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
i. Reasons for the protest action
ii. 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 dismissal
MRL 3702
LABOUR LAW

ADDITIONAL
NOTES
SUMMARISED
INTO QUESTIONS
AND ANSWERS
 LABOUR LAW ADDITIONAL NOTES - QUESTIONS AND ANSWERS

Question 1

What are the essential elements of an employment contract?

An employment contract is
- a voluntary agreement
- between two parties
- in terms of which one party (the employee) places his labour potential at the
disposal and under the control of (works for) the other party (the employer)
- in exchange for some form of remuneration which may include money and/or
payments in kind.

Question 2:

What are the requirements for the conclusion of a valid employment

contract?

- The parties must reach consensus

- The parties must have the necessary capacity to act
- It must be possible for the parties to meet their obligations
- The content and conclusion of the contract must be lawful
- Certain formalities must be complied with
- (Ascertainable terms)

Question 3:

3.1 What are an employer’s operational requirements?

S213 LRA defines “operational requirements” as the

1. economic,
2. technological,
3. structural, or
4. similar needs of the employer

3.2 What are similar needs?

1. the employee's actions or presence has a negative effect on the business,

2. the employee's conduct has led to a breakdown of the trust relationship,
3. the enterprise's business requirements are such that changes must be made to
the employee's terms and conditions of employment

Question 4:

Discuss the procedural requirements for a fair dismissal based on poor work
performance of an employee who is on probation.
 If an employee is dismissed during the probationary period, the employee should
- be given an opportunity to respond to the allegations, and
- be allowed to be assisted by a union representative or co-employee.

Question 5:

Discuss constructive dismissal as a form of dismissal in terms of S186(d) of

the LRA.

In the case of a constructive dismissal, it is the employee who terminates the

employment contract, however his resignation is not voluntary, but is caused by
the actions or omissions of the employer and which made it impossible for the
employee to continue working for the employer.
According to the Copeland case the following elements must be present to
succeed with a claim for constructive dismissal: The employee must show
- that he has resigned
- that the reason for the resignation was that continued employment became
intolerable;
- that it was the employer’s conduct that created the intolerable circumstances
- that he resigned as a result of the intolerable behaviour of the employer.

• Gordon and Western Cape Education Department: the employee applied for
temporary incapacity leave due to ill health, however the employer took
unreasonably long to grant the leave and made unjustifiable deductions from his
salary. Court held – contructive dismissal – there dismissal was unfair.

• Vermeulen: NOT ALL CONSTRUCTIVE DISMISSALS ARE UNFAIR - The

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

Question 6:

Discuss the substantive fairness requirements of an employee’s dismissal

based on misconduct.

1. Did the employee contravene a rule or standard regarding conduct in, or of

relevance to, the workplace?

It must first be established whether or not the rule which the employee is alleged
to have contravened existed. This is a factual question and one must look at the
 circumstances surrounding the matter to determine whether or not the rule
existed. If the facts indicate that the rule did exist, it must then be determined
whether or not the employee contravened this rule.

The most important source of rules of conduct in the workplace is the disciplinary
code. If there is a disciplinary code for the workplace and if it does not contain
the particular rule, this may be an indication that the rule does not exist in the
workplace. There are a number of other sources which may contain the rule, for
example, the common law. The employee's common-law duties include a duty to
act in good faith

The employer can act against the employee if the latter is guilty of misconduct in
the workplace and during working hours. However, item 7(a) provides that the
employer can also act against the employee for misconduct which took place
outside the workplace and/or after working hours.

2. If so, was the rule valid and reasonable?

This is determined with reference to the needs of the workplace and business.
Whether the rule is valid or reasonable is a factual question. Generally, a rule will
be valid or reasonable if it is lawful and can be justified with reference to the
needs and circumstances of the business. There are a number of factors which
may determine whether or not a rule is justified, for example:
• the nature of the employer’s business,
• the circumstances under which the business operate,
• the type of work which an employee does,
• whether the rule was included in a disciplinary code that is contained in a
collective agreement between the employer and a trade union,
• the employer’s willingness in the past to enforce it.

3. Was the employee aware of the rule, or could he reasonably be expected to

have been aware of the rule?
An employee should only be punished for actions which he knew were
unacceptable and he must have known that a transgression of this rule may lead
to dismissal. Some types of misconduct are so well known that it is not
necessary to advise an employee of such rule, for example, rules that have their
origin in the common law (theft).

4. Was the rule consistently applied by the employer?

• 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. An employer
 cannot enforce a rule which has previously been ignored, as the conduct is
inconsistent with past conduct.

If a rule is to be enforced in the future, the employer must inform the employees
before, and the employer must ensure that all employees will know the penalty
for breaking the rule. He could for example draw up a document or notice or
inform the union.

Knowledge may be ensured through meetings, written briefs, notices on notice

boards, through induction programmes for new employees, etc.

Another factor which may indicate that the employee was aware of the rule is
previous warnings which the employee may have in respect of the rule.

• Contemporaneous inconsistency occurs where employees who breach the same

rule contemporaneously or at roughly the same time, are not all disciplined. An
employer’s treatment of several employees who are guilty of the same offence is
inconsistent.

This may create the impression that the employer is administering punishment in
an arbitrary or discriminating way, however, the employer may be able to justify
inconsistency through factors such as the employees’ different circumstances
(such as their length of service or their disciplinary record).

5. Is dismissal an appropriate action for contravention of the rule?

Dismissal should be seen as a matter of last resort and it will not be appropriate
for first offences unless the misconduct is so serious that it renders the
employment relationship intolerable. Whether or not dismissal is appropriate will
depend on

- the employee’s circumstances, including length of service, previous

disciplinary record and personal circumstances;
- the nature of the job, and
- the circumstances of the infringement itself

Unauthorised absence from work, abscondment, desertion & time-related

offences: An employee has a duty to make his services available to his employer
and if he does not arrive at work, he will breach this duty. The circumstances of
the employee’s absence will determine whether or not the employee can be
disciplined and dismissed: an employee cannot be dismissed for one incident of
tardiness, but dismissal may be appropriate for repeated incidents.
 Question 7:

What is the difference between direct and indirect discrimination. Give an

example of each.

Direct discrimination occurs where someone is clearly treated differently because

of a certain characteristic, for example, race or gender. Examples of direct
discrimination: a female employee not being granted certain benefits, or being
paid less because she is a woman, or an employee not being promoted because he
is disabled.
Indirect discrimination occurs when criteria that appear to be prima facie neutral,
negatively affect a certain group of persons disproportionately, for example
persons of Chinese descent or women. Example of indirect discrimination: a
requirement that an applicant for employment must weigh 80kgs and be 6 foot
tall. In such instance more men than women will qualify. Unless this can be
justified by the inherent requirements of the job, it will constitute indirect
discrimination.

Question 8:

What is the difference between a closed shop agreement and an agency shop
agreement?

• In the agency shop agreement, employees are not compelled to be, or to

become, members of the union, but an agency fee is deducted from their wages.
• In the case of a closed shop agreement, all employees covered by the collective
agreement must be, or must become, members of the union.

Both agency shop and closed shop agreements are subject to agreement between
employers and trade unions, and an employer is not obliged to consent to such
agreement. A dispute about an employer's refusal to agree to an agency or a
closed shop agreement will amount to a dispute of interest which, once it has
been referred to conciliation and failed, may become the reason for a strike and
lockout.

A closed shop agreement infringes on an employee's right to freedom of

association, because he could lose his job, for example, if he does not join the
union or is expelled from the union. A closed shop dismissal is, in actual fact, a
possible fourth ground for a fair dismissal. After conciliation, the Labour Court
retains jurisdiction to adjudicate on the fairness of such a dismissal.
Question 9:

Discuss whether members of the National Defence Force have a right to join
trade unions.

Members of the National Defence Force are not included in the scope of
application of the LRA but this does not mean that they have no right to freedom
of association. S126B of the Defence Act also provided that members of the
armed forces could not join trade unions, however, in SANDU v Minister of
Defence and Another, the CC concluded that, for purposes of S23 of the
Constitution, members of the permanent force are ‘workers’ and that S126B was
unconstitutional. Thus, members of the National Defence Force are entitled to
form and join trade unions in terms of S23 of the Constitution.

Question 10:

Discuss the interaction between a contract of employment, a collective

agreement and the Basic Conditions of Employment Act.

A minimum standard of employment, as contained in the BCEA, will constitute a

term and condition of employment unless another law or the contract of
employment is more favourable to the employee.

The parties (employer and employee) cannot contract out of the BCEA – it is not
possible for them to agree in the employment contract that the BCEA will not
apply. Some of the minimum standards of the BCEA may, however, be varied or
changed, even if the change is less favourable to the employee, if the BCEA allows
for such variation or change.

Collective agreements and legislation (the BCEA) will usually take precedence
over the individual employment contract.

A contract of employment may provide for more favourable/better terms and

conditions of employment than the minimum standards set by the BCEA or those
set out in collective agreements.

If the employee is covered by a collective agreement which is more favourable

than the BCEA, the collective agreement applies.

If the provisions of a collective agreement are less favourable than the BCEA, the
provisions of the collective agreement will only be applicable if the agreement falls
within the framework of the BCEA, otherwise the BCEA will apply.

Question 11:

Billy works at Timber Ltd as a financial clerk and is also a shop-steward of

WW Union. After completing his degree, Billy is promoted to financial
 manager within the company. Billy is informed by the employer that since
he is now part of management, he must resign as shop-steward of WW Union
because there will be a conflict of interest when performing his functions.
Advise Billy.

A dismissal will be automatically unfair if an employer dismisses an employee

and the reason therefore is related to the employee’s trade union membership or
activities.
Freedom of association is a fundamental right and is protected by S18 & S23 of
the Constitution. This protection is further extended by S5 of the LRA –
employees have the right to form, join, belong to and participate in the lawful
activities of a trade union.
All employees, including senior managers, enjoy the right to freedom of
association. If a senior manager is also a member of a trade union, there is a
potential for a conflict of interests, since a managerial employee may have access
to information that can harm the employer if divulged to the union. At the same
time, he cannot be dismissed when exercising the right to freedom of association.
IMATU & others v Rustenburg Transitional Council: Although a senior manager
cannot be prevented from joining a union, he must act in good faith towards his
employer, and in so doing, the employee must be careful in balancing the
interests of the union and the employer.

Question 12

(a) Concrete Workers Union, a registered trade union has a dispute with Turf
Tiles Ltd, a company which manufactures roof tiles. The dispute is about
the number of vacation leave days its members should get per annum. After
two weeks have passed since the dispute was referred to the CCMA, trade
union members were starting to lose their patience. On the morning of 17
January, Concrete Workers Union gave Turf Tiles Ltd notice that its
members will commence with a go-slow on the morning of 19 January, until
their demands are met. After a week, it was realised that the strike was not
having the desired effect and the union decided to call a strike of all its
members at ZZ Cement Ltd, the company supplying Turf Tiles Ltd with
cement for tile manufacturing.

i) Discuss whether the action by the trade union at Turf Tiles Ltd
constituted a protected strike.

No right is absolute and the LRA which accepts that the right to strike and the
right to recourse to a lockout may be limited in the interest of employers and
employees and in the public interest.

1. The action undertaken must comply with the definition of a strike or lock-out.
2. The procedural requirements prescribed by S64 LRA must be complied with.
Procedural limitations refer to those instances where the strike or lockout is
not prohibited, but where the strike or lockout will only be protected if certain
procedural requirements have been met.

3. The action must not be prohibited by S65 LRA.

Substantive limitations refer to instances where a strike or a lockout is
absolutely prohibited because of the parties involved and the nature of the
services rendered by the parties. The restrictions therefore focus on the
nature of the dispute and whether the dispute allows industrial action.

There is nothing in the facts which indicate that the action is prohibited.

i) Advise the Human Resource Manager at ZZ Cement Ltd on the nature of

the strike at their company and whether it was protected.

The strike at ZZ Cement Ltd is a secondary strike.

1) A secondary strike will only be permitted if the primary strike is protected.

2) The secondary employer must be given 7 days, prior written notice of the
secondary strike.
This period of notice will give the employer the opportunity to exert pressure on
the primary employer to accede to the demands of its strikers.

If the secondary strike forms part of strike action about dismissal for operational
requirements, 14 days’ notice must be given.

3) The nature and extent of the secondary strike must be reasonable in relation to
the possible direct or indirect effect it may have on the business of the primary
employer = proportionality

This requirement ensures that the secondary employer does not suffer significant
harm without the secondary strike having any effect on the primary employer.
The purpose of a secondary strike is to put additional pressure on the primary
employer and the secondary strike is thus based on the assumption that it will,
in some way, be able to affect the outcome of the primary strike.

The Labour Court may consider the ‘proportionality’ of the secondary strike by
weighing up the potential effect of the secondary strike on the primary employer
against the potential effect on the secondary employer. The Labour Court has
held that there must be some nexus or link between the primary and the
 secondary employer for the secondary strike to have a possible effect on the
business of the primary employer in such a way as to make the secondary strike
reasonable

Should a secondary employer feel that the requirements for a secondary strike
have not been met, he may approach the Labour Court for an interdict to prevent
or limit the secondary strike.

(i) Assume that the strike at Turf Tiles Ltd turns violent. Turf Tiles Ltd wants
to know whether it can dismiss employees who caused trouble during the
strike.

S67(5) limits the rights of the strikers not to be dismissed by providing that even
where employees are participating in or supporting a protected strike, the
employees may still be dismissed for misconduct or on the basis of the
employer’s operational requirements.
Dismissal for misconduct
An employer may dismiss employees who, during a protected strike, commit acts
of misconduct such as assault, intimidation or malicious damage to property. If
the employer wants to dismiss for misconduct, he must ensure that the dismissal
is fair in accordance with the statutory requirements for a fair dismissal for
misconduct.

Question 13:

Which organisational rights are available to a trade union which has

majority representation in the workplace?

Majority representation (union represents 51% or more of all the employees in

the workplace) = entitled to all 5 organisational rights.

Question 14:

Jojo is a technician at the Vhamba Security Services (VSS). VSS installs

security alarms. Jojo closely works with Brad and has discovered that Brad
has been stealing alarms from the company and installing them for clients.
Jojo reported Brad to the in-house Whistle Blower’s Line. Brad has told his
cousin Lloyd, the branch manager, that he suspects that it was Jojo who
reported him. Consequently Jojo was transferred to the administration
section of the branch and was told that he was ‘reaping what he has sown’.
Advise Jojo on whether he has any legal remedy.
 This type of unfair labour practice arises where an employee suffers an
occupational detriment (short of dismissal) in contravention of the PDA, on
account of having made a protected disclosure in terms of the PDA.

The PDA regulates disclosure by employees of information on suspected criminal

and other improper conduct by employers, and provides the employee with
certain remedies. The purpose of this protection is to prevent fear of reprisal once
the disclosure is made. The point is to promote a culture of openness.

The following three requirements must be satisfied before an employee can allege
an unfair labour practice based on an occupational detriment:-
1. The employee must have made a protected disclosure.
2. The employer must have taken some retaliating action against the employee
which results in the employee suffering from an occupational detriment.
3. The detriment suffered must be on account of, or partly on account of, the
making of the protected disclosure. This means that there must a causal link
between the disclosure and the retaliating action by the employer.

An occupational detriment occurs when an employee is subjected to any of the

following, as a result of having made a protected disclosure:
- 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 which is altered or kept altered to the
employee’s disadvantage;
- subjection to a term of retirement which is altered or kept altered to the
employee’s disadvantage;
- refusal of a reference, or being provided an adverse reference;
- denial of appointment to any position or office;
- being threatened with any these actions;
- being otherwise adversely affected in respect of employment, employment
opportunities and work security.

A general protected disclosure covers a wide range of disclosures including

disclosures to the media. A protected disclosure is a disclosure of information,
to specific persons or bodies, namely: legal advisors, employers, members of
Cabinet, the Public Protector or the Auditor-General. The employee must make
the disclosure:
- in good faith, and
- must reasonably believe that the information disclosed is substantially true
(suspicions, rumours and personal opinion do not constitute information).
 In Theron the disclosure by a prison doctor relating to the poor health care of
prisoners to the Inspecting Justice of Prisons and the relevant Parliamentary
Committee, was found to be a protected disclosure.
In Young the court stated that an employee has a choice of approaching the
Labour or the High Court regarding matters relating to the PDA.
In Engineering Council of South Africa v City of Tshwane, a managing engineer,
employed by the Municipality, informed the employer, and cc’d the Engineering
Council and the Department of Labour, that the employer wanted to appoint
unskilled and inexperienced people who were unable to perform the duties in the
electrical control section. The court found that the copying of the letter to the
Engineering Council and the Department of Labour complied with a protected
disclosure. The municipality was therefore not allowed to discipline him or to
impose any sanction on him for having made the disclosure.

Question 15:

Who are designated employers for purposes of affirmative action in terms of

the EEA?
Designated employers include:
o Larger enterprises, with 50 or more employees
o Employers who employ fewer than 50 employees, but whose annual turnover
in any given year exceeds that specified in Schedule 4 of the EEA
o Municipalities
o Organs of state (ACSA, The Central Energy Fund, the Development Bank of
SA, Telkom, Eskom, the SABC and the SA Post Office)
o Employers that are designated as such in terms of a collective agreement
o National Defence Force, State Security Agency are NOT designated employers
and are therefore specifically excluded.

Question 16:

What is the definition of a suitably qualified person in terms of the EEA?

o a suitably qualified person is a person who may be qualified for a job as a

result of any one (or a combination) of
- that person’s formal qualifications (degrees/diplomas),
- prior learning (diplomas not completed),
- relevant experience or
- his capacity to acquire, within a reasonable time, the ability to do the
job (the potential of the person).

Question 17:

Define vicarious liability and mention the requirements which must be met
for it to exist.
 The principle common-law doctrine of vicarious liability holds an employer liable
for the unlawful or delictual acts of an employee which are committed during the
course of business, and is based on the principle that the employer must
compensate those who suffer prejudice as a result of the wrongful conduct of its
employees.

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

Before an employer can be held liable for the acts of its employees, the following
requirements must be met:
1) there must be a contract of employment – an employer-employee relationship;

2) the employee must have committed a delict (a delict is an act or omission,

which is unlawful and culpable, and which causes damage to a third party), and

3) the employee must have acted in the course and scope of employment

In Bezuidenhout v Eskom, the employer had expressly forbidden the employee

(who had been given a company truck to perform his duties) from giving lifts to
anyone without permission. The employee gave someone a lift and thereafter
caused an accident in which the passenger was injured. The Court held that the
employer’s instruction not to carry passengers placed a limitation on the scope of
employment and the employer was not vicariously liable for the injuries sustained
by passenger because “the driver knew that he was prohibited from giving lifts
and had no intention of furthering his master’s affairs by doing so, and that the
passenger’s presence added nothing to the interests of the employer in the
administration of its service.”
However, if the employee is expressly forbidden from acting in a particular way by
the employer, or if his act constitutes a criminal act, this will not necessarily
absolve the employer from being held vicariously liable for the employee’s
wrongful actions. For example: Richard is a maker of fine and expensive pens of
INK IT LTD. While fixing an expensive pen, Richard switches the expensive one
for a fake. After the client discovers this, they claim damages from INK IT. The
employer will be liable for damages of the client. The fraudulent action does not
affect the fact that the employer is vicariously liable. Richard may however be
formally disciplined by INK IT and may also face criminal charges.
 Question 18:

Under what circumstances will the Labour Court not order a re-instatement
or re-employment, as remedies for unfair dismissal?
The primary remedy for unfair dismissal is reinstatement, which must be ordered
except in the following circumstances, in which case compensation will be
awarded:
- The employee does not wish to be reinstated or re-employed;
- The circumstances surrounding the dismissal are such that a continued
employment relationship would be intolerable;
- It is not reasonably practicable for the employer to reinstate or re-employ the
employee, or
- The dismissal is unfair only because the employer did not follow a fair
procedure.

Question 19:

Biza who has just obtained a B-Com degree from UNISA, is employed by
Rainbow Plastics, as an accountant. On commencement of employment he
is informed that he will work under probation for a year and a half and
thereafter depending on his performance he will be appointed permanently.
Biza works under supervision of Brown who only has a diploma in
accounting. Biza asks Brown on what the Company expects from him and
Brown says to Biza” I thought people with university qualifications are clever”.
At the end of his probation Biza is informed that because his performance is
unsatisfactory he will not be made permanent. Biza heard that you
are a labour law student and he approaches you for advice.
Substantive Fairness:
The Code of Good Practice confirms that a newly hired employee may be placed
on probation for a reasonable period of time. Although one of the purposes of
probation is to ascertain whether or not the employee can do the work, the
employer must still treat a probationary employee fairly: an employer must give
the probationary employee the following assistance before a dismissed for poor
work performance:

1. Evaluation, instruction, training, guidance or counselling to help him perform

his duties.
2. The employer must make it clear to the employee what the performance
standard is, and where he is not meeting it.
3. The employer must give the employee assistance and an opportunity to
improve.
4. The employer should measure the progress and give feedback.
 The required assistance and the period of probation will be determined by the
nature of the job.

Procedural Fairness: If an employee is dismissed during the probationary period,

the employee should
- be given an opportunity to respond to the allegations, and
- be allowed to be assisted by a union representative or co-employee.

Some employers believe that a probationary employee can be dismissed with 24

hours’ notice and without regard to procedure – this is incorrect. A probationary
employee is protected against unfair dismissal and enjoys the protection under
the LRA and the BCEA.

Question 20:

Name the five organizational rights and the level of representation required
in order for a trade union to acquire each of them, as provided by the LRA.

S12 LRA: The right of access to the premises of the employer

The purpose of this right is to allow the union to access to the employer’s
premises to
- recruit new members, to communicate with existing members and to serve the
interests of members;
- hold meetings with employees at the workplace (outside working hours); and
- let members vote at the employer’s premises in union elections or ballots.

S13 LRA: The right to have trade union membership fees deducted by way of
a stop order

- Authorisation to implement stop orders must be given by the employees, in

writing;
- The employer should start with deductions as soon as possible and pay the
money over to the union no later than the 15th day of the month;
- An employee may revoke his stop order authorisation by giving the employer and
the union written notice to this effect.

S14 LRA: The right to elect trade union representatives (shop stewards)

- The number of shop stewards to be elected depends upon the size of the
workforce: the number of shop stewards increases on a sliding scale in
accordance with the number of union members who are employed in the
particular workplace.
- Shop stewards have the right to assist and represent employees, and monitor the
employer’s compliance with the law.
- Shop stewards are entitled to reasonable time off with pay during working hours
to perform union functions.

Shop stewards are employed by the employer, not the union.

Trade union representative’s vs trade union officials

• Officials = employees of the trade union who perform various duties for the union
as employees;
• Representatives = employees of the employer; but also represent the union in the
workplace in which they (the representatives) are employed.

S15 LRA: The right of shop stewards (office bearers) to get time off for trade
union activities

Shop stewards are entitled to paid leave to perform their functions on behalf of
the union. (Details are normally arranged between the employer and the union).

S16 LRA: The right to disclosure of information

Only relevant information must be disclosed – ie, information that will allow shop
stewards to perform union functions effectively and engage in collective
bargaining. The employer is not required to disclose the following information

1) information which is not relevant to the issue(s) under discussion;

2) information which is not available,
3) information is legally privileged;
4) information that could harm the employer’s business interests if disclosed,
5) information which is private personal information relating to an employee
(unless the employee has consented to disclosure of such information).

Whether or not a trade union is entitled to organisational rights depends on the

level of representativity of the trade union in the workplace.

Majority representation (union represents 51% or more of all the employees in

the workplace) = entitled to all 5 organisational rights.
Sufficient representation (union represents less than the majority of employees
in the workplace - sufficiently representative is not defined, but the LRA gives
guidelines of approximately 30%) = entitled to S12: access to the workplace; S13:
membership fees deducted from wages, and S15: shop stewards get leave for
trade union activities.

Union is a member of a bargaining council = automatically entitled to S12:

access to the workplace, and S13: membership fees deducted from wages.

Minority union = may enforce rights through collective bargaining and industrial
action (two or more unions may also act jointly to acquire rights).

Question 21:

Discuss the right of trade unions to conclude closed shop and agency shop
agreements and the right of employees to freedom of association.

Freedom of association is the foundation of the collective bargaining process.

S23 of the Constitution protects freedom of association of workers, employers,

trade unions and employer’s organisations and S18 of the Constitution protects
freedom of association in general.

S4 of the LRA protects the freedom of an employee to join a trade union, or to

take part in the formation thereof. Freedom of association can however be limited.

The Constitution and the LRA allow for the conclusion of ‘agency-shop’ and
‘closed-shop’ agreements which infringe on an employee’s right to freedom of
association. The Constitution does, however, limit these agreements by requiring
that they must:-

1. be contained in a collective agreement, and

2. comply with the general limitations clause of the Constitution (S36(1)).

With an agency shop agreement, the employer agrees, in the collective agreement
to deduct the agency fees from the wages of certain employees. These are
employees who are not members of a trade union that entered into the agency
shop agreement, but they are eligible for membership of this union.

A closed shop agreement exists where an employer and a trade union conclude a
collective agreement ito which the employer undertakes to employ/retain in its
service only those employees who have joined the trade union. This agreement
compels employees to join a certain trade union in order to acquire or retain a
job. A closed shop agreement can also be seen as an infringement of the
employee’s right not to associate.
 The reason for providing for these two collective agreements relate to the nature
and practice of collective bargaining:

• Under certain circumstances, employees who are not members of a trade

union will be bound by the provisions of an agreement entered into by the union.
• In other circumstances an employer may, in the interest of administrative
convenience, extend the provisions of the collective agreement to non-union
members.
• In effect, employees who are not members of a union may derive benefits from
a collective agreement entered into by a union.
• These non-union members are sometimes called ‘free riders’ because they
derive benefits for free – they do not pay union subscription fees, but still obtain
the benefits of the union’s bargaining.
• This is the main argument in favour of either forcing employees to contribute to
the costs of the union (agency shop) or forcing employees to become members of
the union (closed shop).
• Another argument in favour of agency and closed shops is that they support
collective bargaining by aiding the development of strong and representative trade
unions.

Despite the arguments in favour of both agreements, it appears that these types
of agreements infringe an employee’s freedom of association. Particularly in the
case of a closed shop, as the employee is no longer free to associate – employees
covered by a closed shop must belong to a specific union. Employees are no
longer free to choose to which union they want to belong, or if they even want to
belong to a union. If an employee is not a member of a particular union or loses
his union membership the employee may end up without a job.

It has been argued that the closed shop agreement infringes the employees
constitutional right to freedom of association in S18 & S23. This is not the case
with the agency shop – the employee still has the freedom to choose whether or
not he wants to belong to the union.

S23(6) of the Constitution contains a reference to limitations and the fact that a
limitation of a right must comply with S36(1) of the Constitution. Thus, agency
and closed shops are permitted and are not automatically unconstitutional.
The right to freedom of association (a fundamental right) may be limited by
legislation as long as that limitation is reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom (S36(1) of the
Constitution).

• The purpose of agency and closed shops are to enhance collective bargaining by
the development of strong and powerful trade unions and stable bargaining
relationships (S23 protects collective bargaining as well).
• Agency shops do not represent a serious infringement, however, a closed shop
does.
• With the closed shop, the question is whether it is really necessary to force
employees to become members of a union, especially when a less restrictive
method – the agency shop – does exist.

Question 22:

What is the distinction between a strike, a picket and protest action?

STRIKES: to remedy a grievance or resolve any matter of mutual interest between

employers and employees.
PICKET: to peacefully demonstrate support for any protected strike or opposition
against any lock-out.
PROTEST ACTION: to promote or defend the socio-economic interests of
workers.
Question 23:

What are the requirements that must be met for a secondary strike to be
protected?

4) A secondary strike will only be permitted if the primary strike is protected.

5) The secondary employer must be given 7 days, prior written notice of the
secondary strike.

This period of notice will give the employer the opportunity to exert pressure on
the primary employer to accede to the demands of its strikers.

If the secondary strike forms part of strike action about dismissal for operational
requirements, 14 days’ notice must be given.

6) The nature and extent of the secondary strike must be reasonable in relation to
the possible direct or indirect effect it may have on the business of the primary
employer = proportionality

Question 24:

Amandla Workers Union approaches RR Traders, a transportation company

about a 10% increase in the wages of its members due to high food prices.
RR Traders offers the union only 5% arguing that diesel prices are high. The
parties fail to reach the agreement and the dispute is referred to the CCMA
for conciliation. Within two weeks of the referral on a Monday morning the
union informs RR Traders that because the company is not prepared to
meet their demands they will embark on a strike as from Wednesday
morning.
 (i) Discuss whether the strike by members of Amandla Workers Union will be
protected.

No right is absolute and the LRA which accepts that the right to strike and the
right to recourse to a lockout may be limited in the interest of employers and
employees and in the public interest.

4. The action undertaken must comply with the definition of a strike or lock-out.

5. The procedural requirements prescribed by S64 LRA must be complied with.

Procedural limitations refer to those instances where the strike or lockout is
not prohibited, but where the strike or lockout will only be protected if certain
procedural requirements have been met.

6. The action must not be prohibited by S65 LRA.

Substantive limitations refer to instances where a strike or a lockout is
absolutely prohibited because of the parties involved and the nature of the
services rendered by the parties. The restrictions therefore focus on the nature
of the dispute and whether the dispute allows industrial action.

(ii) Assuming that the strike was unprotected, discuss both the substantive
and procedural requirements which must be met before employees who are
engaged in such a strike may be dismissed.

Substantive fairness

The substantive fairness of dismissal in these circumstances must be determined

in the light of the facts of the case, including:

1) the seriousness of the failure to comply with the LRA

If there is a serious or deliberate failure by a party to comply with the prescribed

procedures for a protected strike or if there is a serious deviation therefrom,
dismissal of strikers might be fair. Minor technical factors such as non-
compliance with the time limits/incorrectly completing forms may be condoned.

2) any attempts made to comply with the Act

Attempts made to comply with the LRA are also take into account and where
employees genuinely believe that the strike is protected, this may mitigate against
dismissal or where the dispute has been formulated incorrectly. The onus of
justifying the non-compliance rests on the striking employees.
 3) whether or not the strike was in response to unjustified conduct by the employer.

Any unfair conduct by an employer may influence substantive fairness. For

example, where employees strike in response to the employer’s unfair bargaining
tactics or in response to unfair practices against individual employees

Procedural fairness

1) The employer must make contact with the trade union to discuss the course of
action that it proposes to take.

If the striking employees belong to a union, the employer must make contact with
the union at the earliest opportunity to discuss the course of action it intends on
taking (the dismissal) before dismissing the employees.

The purpose of this is to enable the union to persuade the employer not to
dismissal the employees, and for the employees o return to work.

2) The employer must issue an ultimatum.

The employer must issue an ultimatum to the employees to return to work before
dismissing them.

The purpose of the ultimatum is to convince the employees to return. This

ultimatum must be communicated to the strikers in a medium they understand.

It must be clear and unambiguous leaving no doubt as to what is expected of the

employee, and the time set for the ultimatum must not be unreasonable (there
must be sufficient time for the employees to consider the ultimatum and to
discuss same with their union).

If the strikers comply with the ultimatum, the employer cannot take disciplinary
action against them.

Where the employer cannot reasonably be expected to issue an ultimatum, the

employer may dismiss the employees summarily.

Question 25:
Discuss the limitations on the right to strike
 The right to strike is not unlimited. S65 states that a strike or lock-out will be
unprotected, in certain circumstances, even where the procedures in S64 have
been followed.
Prohibition in a collective agreement
If the parties to a dispute have previously agreed (in a collective agreement, to
which they are bound) that they will not strike/lock-out over certain issues, they
are not allowed to do so.
The collective agreement must be an agreement defined as such in the LRA and it
binds the parties only for the duration of the collective agreement.

Arbitration is prescribed by an agreement

Disputes that must be referred to arbitration or the Labour Court
TWO EXCEPTIONS
1) Organiational rights disputes
2) Operational requirements dismissals

Essential and maintenance services

An award or a collective agreement regulates the issue
The issue in dispute is regulated by a determination
The existence of a dispute

Question 26:

Discuss whether senior managers have a right to join/participate in trade

unions.

Freedom of association is a fundamental right and is protected by S18 & S23 of

the Constitution. This protection is further extended by S5 of the LRA –
employees have the right to form, join, belong to and participate in the lawful
activities of a trade union.

All employees, including senior managers, enjoy the right to freedom of

association. If a senior manager is also a member of a trade union, there is a
potential for a conflict of interests, since a managerial employee may have access
to information that can harm the employer if divulged to the union. At the same
time, he cannot be dismissed when exercising the right to freedom of association.

IMATU & others v Rustenburg Transitional Council: Although a senior manager

cannot be prevented from joining a union, he must act in good faith towards his
employer, and in so doing, the employee must be careful in balancing the
interests of the union and the employer.
 Question 27:

Define a collective agreement in terms of the LRA

S213 of the LRA defines a collective agreement as ‘a written agreement

concerning terms and conditions of employment or any other matter of mutual
interest concluded by one or more registered trade unions, on the one hand and,
on the other hand –

(a) one or more employers;

(b) one or more registered employers’ organisations; or,
(c) one or more employers and one or more registered employers’ organisations.’

Question 28:

Daisy works for Salome, a hair dresser who owns a salon in Acardia. Daisy’s
contract of employment contains a clause providing that if Daisy leaves her
employment, she will not be allowed to start her own salon within 5Km from
Salome’s salon for a period of 10 years. Daisy wants to resign from Salome’s
salon in order to start her own hair dressing business in Hatfield. (3KM from
Salome’s salon), because most people she treats at Salome’s salon come
from that area. Daisy thinks that the restraint if trade clause in her
contract of employment is unreasonable and she approaches you for advice.
Advise Daisy on the legality of a restraint of trade agreement and on
whether she can successfully challenge the clause in her employment
agreement.

A restraint clause is included in employment contracts to

- protect the employer’s interests, trade secrets, goodwill and business
connections against unfair competition from employees during and after
employment, and
- prevent an employee from competing with his employer within a specific area
and for a specific time.

In determining whether or not a restraint of trade is enforceable, a court must

balance the following two considerations:
1. the public interest, which requires parties to comply with their contractual
obligations, even if these are unreasonable, versus
2. the right of all persons to be permitted to engage in a profession of their own
choice.

In Magna Alloys & Research, the court held that a restraint of trade agreement is
valid and enforceable unless it is contrary to public policy. A contract will be
 contrary to public policy and unenforceable if it is unreasonable. (The onus is on
the employee to show that the clause is contrary to public policy).

Reasonableness must be determined with reference to the interests of both

parties, public policy and the surrounding circumstances and the following
questions should be asked when in determining reasonableness:

- Is there an interest deserving of protection at the termination of the agreement?

- Is that interest being prejudiced?
- If so, how does that interest weigh up against the interests of the other party
not to work?
- Is there another aspect 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?

When deciding whether or not a restraint clause is contrary to public policy, the
courts will consider the circumstances which exist at the time when enforcement
of the clause is sought and not those which existed at the time that the contract
was concluded.

The court may, in considering a restraint, decide that part of the clause is
enforceable and that part of it is not enforceable. In doing so the court will look
at:
• Area the restraint of trade will be enforced
• Period of the restraint of trade
• Intentions of the employer

An employer who unlawfully terminates a contract of employment containing a

restraint clause should not be allowed to benefit from that restraint.

Question 29:

Discuss the difference between a preventative suspension and a punitive

suspension.

Precautionary suspension suspension pending an inquiry, may be used to give

the employer an opportunity to investigate allegations of misconduct by an
employee, so as to decide whether or not to take disciplinary action against the
employee.

Punitive suspension suspension imposed as a sanction for misconduct following

disciplinary action.
 Question 30:

What are the circumstances under which the prescribed procedures for a
protected strike need not be followed?

1) The procedures need not be followed if the parties to the dispute are members of
a council and the dispute has been dealt with by that council in accordance with
its constitution;

2) The parties need not comply with the LRA’s procedural requirements if they are
covered by a collective agreement which contains its own procedural
requirements for strikes and lock-outs.

3) If an employer embarks on a lock-out that is not protected in terms of the LRA,

its employees will be able to strike in response to that unprotected lock-out
without complying with the procedures set out in S64, and vice-versa.

4) The procedures need not be followed if the strike takes place after the employer
has unilaterally changed the terms and condition of employment, and the
employed does not rectify this despite prior warning, and

5) In the case of a refusal to bargain dispute, the matter must be referred to

conciliation, and then to advisory arbitration before a notice of strike may be
given.

Question 31:

In which five ways does the Labour Relations Act encourage and promote
collective bargaining?

o protecting the right of employees to form, join and participate in the activities of a
trade union;
o enabling trade unions to obtain organisational rights;
o permitting employees to strike in an attempt to force an employer to negotiate
with the trade union;
o regulating the legal status and enforceability of the product of collective
bargaining (collective agreements), making collective bargaining more effective;
o making provision for closed-shop and agency-shop agreements, and
o granting the parties the right to establish bargaining institutions.

Question 32:

What constitutes a strike?

Section 213 of the LRA defines a strike as ‘the partial or complete concerted
refusal to work, or the retardation or obstruction of work, by persons who are or
 have been employed by the same employer or by different employers, for the
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.’

To qualify as a strike, the following three elements must be present,

simultaneously:-

1. A refusal to work (a complete or partial refusal, obstruction or retardation of

work) NB: Under normal circumstances, refusal to work amounts to misconduct.

2. A concerted refusal by persons (employed by the same or different employers)

3. Refusal for a specific purpose (of remedying a grievance or resolving a dispute in

respect of any matter of mutual interest between the employer and employees)

Question 33:

Try-Us Union entered into an agency shop agreement with No-Way (PTY) Ltd
at the beginning of 2010. Ronald is one of No-Way’s employee’s, but he is
not a member of Try-Us Union. At the end of March, Ronald realizes that an
amount of R40 has been deducted from his salary and next to it, it is
written “agency fee”. Ronald thinks what the employer did is not
permissible as the deduction was made without his prior consent and was
against the provision of the Basic Conditions of Employment Act, 1997.
Furthermore Ronald does not want to pay the agency fee because he does
not agree with some of Try-Us Union’s policies.

Advise Ronald on whether he is obliged to pay the agency fee.

An agency-shop agreement is

• a collective agreement

• which is concluded by a majority union and an employer/employer’s

organisation;

• in terms of which the employer is required to deduct an agreed agency fee from
the wages of the employees who are identified in the agreement, subject to the
following:-

- the employer may only deduct the agency fees from wages of employees who are
non-union members and who are eligible for membership;
- the fee payable by non-members may not be more than the subscription fee
payable by the members of the union;

- the agency fees must be paid over to a separate account and may be used only for
the benefit of all employees at the workplace;

- the agency fees may not be used for political purposes;

- the agency fees may not be used for any purpose other than advancing or
protecting the socio-economic interests of employees;

- the employer may deduct the agency fees from the wages of employees without
authorisation, and

- conscientious objectors to the policies of the union (on moral or religious

grounds) must still pay the fee, which must be paid to a fund administered by the
Department of Labour.

Here, the employer agrees, in the collective agreement to deduct the agency fees
from the wages of certain employees who are not members of the trade union that
entered into the agency shop agreement, but they are eligible for membership of
this union.

From the above, Ronald will not be able to challenge the employer’s act of
deducting the agency fee without his consent and he will be required to pay the
agency fee because of the agency shop agreement, however, he may request the
employer to pay the R40 to a special fund to be administered by the Department
of Labour because he does not agree with the union’s policies and he would
accordingly be a conscientious objector.

Question 34:

Employee’s of Microwave (Pty) Ltd, a company that manufactures

microwaves, represented by Appliances-Union, go on a protected strike in
demand of a wage increase of 20%. The company is adamant that it cannot
afford such a high increase and the strike goes on for some weeks.
Employee’s of Motors (Pty) Ltd, the company that supplies Microwave (Pty)
Ltd with motors for the microwaves, who are also members of Appliances-
Union, decide to go on strike in support of employee’s at Microwave (Pty)
Ltd. Motors (Pty) Ltd thinks that its employees are engaged in an illegal
strike.

Advise Motors (Pty) Ltd on the nature of the strike undertaken by its
employee’s and on whether their action is protected.
 S66(1) of the LRA defines a secondary strike as ‘a strike, or conduct in
contemplation or furtherance of a strike, that is in support of a strike by other
employees against the employer, but does not include a strike in pursuit of a
demand that has been referred to a council if the striking employees, employed
within the registered scope of the council, have a material interest in that
demand.’

A secondary strike (sympathy strike) occurs where employees from a second

employer (the secondary employer) strike in support of a strike by other
employees against their employer (the primary employer). The employees of the
secondary employer are not in dispute with their own employer. They take action
which affects their employer in support of the dispute which the employees of the
primary employer have with their employer.

• A secondary strike involves employees of one employer attempting to place

pressure on another employer.
• S66(1) provides that the definition does not include a strike in pursuit of a
demand that has been referred to a council if the striking employees, employed
within the scope of the council, have a material interest in that demand.
• Where a strike occurs as a result of a dispute at one branch of an employer, and
then spreads to the other branches of the same employer (in support of the same
dispute), the extension of the strike will constitute the same strike and not a
secondary strike.

Requirements for a protected secondary strike

7) A secondary strike will only be permitted if the primary strike is protected.

8) The secondary employer must be given 7 days, prior written notice of the
secondary strike.

This period of notice will give the employer the opportunity to exert pressure on
the primary employer to accede to the demands of its strikers.

If the secondary strike forms part of strike action about dismissal for operational
requirements, 14 days’ notice must be given.

9) The nature and extent of the secondary strike must be reasonable in relation to
the possible direct or indirect effect it may have on the business of the primary
employer = proportionality

This requirement ensures that the secondary employer does not suffer significant
harm without the secondary strike having any effect on the primary employer.
 The purpose of a secondary strike is to put additional pressure on the primary
employer and the secondary strike is thus based on the assumption that it will,
in some way, be able to affect the outcome of the primary strike.

The Labour Court may consider the ‘proportionality’ of the secondary strike by
weighing up the potential effect of the secondary strike on the primary employer
against the potential effect on the secondary employer. The Labour Court has
held that there must be some nexus or link between the primary and the
secondary employer for the secondary strike to have a possible effect on the
business of the primary employer in such a way as to make the secondary strike
reasonable

Should a secondary employer feel that the requirements for a secondary strike
have not been met, he may approach the Labour Court for an interdict to prevent
or limit the secondary strike.

Question 35:

Write short notes on overtime work as stipulated by the BCEA.

• Maximum 10 hrs’ overtime a week.

• Overtime may be increased to 15 hrs a week by agreement.
• An employee may work overtime only by agreement.
• Overtime is paid at one-and-a-half times the employee’s normal pay.
• An agreement to work overtime may not be for more than 12 hours (ordinary
plus overtime) on any particular day.

Question 36:

List two automatically unfair dismissals in terms of section 187 of the LRA.

S187 of the LRA defines automatically unfair dismissals:

(1) A dismissal is automatically unfair if the employer, in dismissing the

employee, acts contrary to S5 or, if the reason for dismissal is-

(a) 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 chapter 4 (protected strike)

(b) that the employee refused, or indicated an intention to refuse, to do any

work normally done by an employee who at the time was taking part in a strike
that complies with Chapter 4, unless the work is necessary to prevent actual
danger to life
 (c) to compel an employee to accept a demand in respect of any matter of
mutual interest between the parties (dismissal lockout)

(d) that the employee took action or indicated an intention to take action,
against the employer by:
(i) exercising any right conferred by this Act, or
(ii) participating in any proceedings in terms of this Act

(e) the employee’s pregnancy, intended pregnancy or any reason relating to

her pregnancy

(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

(g) a transfer, or any reason relating to transfer

(h) a contravention of the Protected Disclosures Act.

Question 37:

Zola works as a sales representative for CALL ABC Ltd. Mrs MALO is her
supervisor. During March MALO called Zola to her office and told her that
she (MALO) is having an affair with Mr Lelo, a married co-employee. Zola
made her disapproval clear about the affair based on her religion. The
relationship between Zola and MALO soured after this incident.

Shortly thereafter, MALO asked Zola to get her an adaptor from the
storeroom. Zola fetched the adaptor and handed it to Malo. Zola however
kept an adaptor.

In April Zola is informed by MALO that there is an investigation about a

stolen adaptor. Zola immediately acknowledges that she had kept an
adaptor belonging to the employer at her home. She brought the adaptor
back to the office the next day.

The employer charges Zola with removal of and possession of an adaptor

belonging to the employer without permission. Zola is given an hour’s
notice to attend a disciplinary hearing. The disciplinary committee finds
that the adaptor had been used and as a result Zola is found guilt of
misconduct and is dismissed.

(i) Assume that Zola can prove that the employer previously failed to dismiss
an employee for the same offence. Discuss wether Zola’s dismissal would be
substantively fair.
 SUBSTANTIVE FAIRNESS OF A DISMISSAL FOR MISCONDUCT

In cases of dismissal based on misconduct, the employee is at fault for breaking a

workplace rule, but though misconduct is a recognised reason for dismissal, it
still needs to be substantively fair. The workplace rules can be found in the
disciplinary code of a workplace. If the employee breaks this code, the employee
must be dismissed.

Examples of these well-known rules are:

• duty not to steal
• not to assault a co-worker
• duty to act in the best interest of the employer

The Code: Dismissal requires all employers to adopt disciplinary rules to ensure
that their employees know and understand the required standard of conduct.
Some rules, such as the duty to act in good faith, or theft, are so well known, that
they apply without having to be included in the employment contract.

The LRA, does not set out the requirements for a substantively fair dismissal, but
the Code: Dismissal sets the following requirements for substantive fairness:

6. Did the employee contravene a rule or standard regarding conduct in, or of

relevance to, the workplace?

It must first be established whether or not the rule which the employee is alleged
to have contravened existed. This is a factual question and one must look at the
circumstances surrounding the matter to determine whether or not the rule
existed. If the facts indicate that the rule did exist, it must then be determined
whether or not the employee contravened this rule.

The most important source of rules of conduct in the workplace is the disciplinary
code. If there is a disciplinary code for the workplace and if it does not contain
the particular rule, this may be an indication that the rule does not exist in the
workplace. There are a number of other sources which may contain the rule, for
example, the common law. The employee's common-law duties include a duty to
act in good faith

The employer can act against the employee if the latter is guilty of misconduct in
the workplace and during working hours. However, item 7(a) provides that the
 employer can also act against the employee for misconduct which took place
outside the workplace and/or after working hours.

7. If so, was the rule valid and reasonable?

This is determined with reference to the needs of the workplace and business.
Whether the rule is valid or reasonable is a factual question. Generally, a rule will
be valid or reasonable if it is lawful and can be justified with reference to the
needs and circumstances of the business. There are a number of factors which
may determine whether or not a rule is justified, for example:
• the nature of the employer’s business,
• the circumstances under which the business operate,
• the type of work which an employee does,
• whether the rule was included in a disciplinary code that is contained in a
collective agreement between the employer and a trade union,
• the employer’s willingness in the past to enforce it.

8. Was the employee aware of the rule, or could he reasonably be expected to have
been aware of the rule?
An employee should only be punished for actions which he knew were
unacceptable and he must have known that a transgression of this rule may lead
to dismissal. Some types of misconduct are so well known that it is not
necessary to advise an employee of such rule, for example, rules that have their
origin in the common law (theft).

9. Was the rule consistently applied by the employer?

• 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. An employer
cannot enforce a rule which has previously been ignored, as the conduct is
inconsistent with past conduct.

If a rule is to be enforced in the future, the employer must inform the employees
before, and the employer must ensure that all employees will know the penalty
for breaking the rule. He could for example draw up a document or notice or
inform the union.

Knowledge may be ensured through meetings, written briefs, notices on notice

boards, through induction programmes for new employees, etc.

Another factor which may indicate that the employee was aware of the rule is
previous warnings which the employee may have in respect of the rule.
 • Contemporaneous inconsistency occurs where employees who breach the same
rule contemporaneously or at roughly the same time, are not all disciplined. An
employer’s treatment of several employees who are guilty of the same offence is
inconsistent.

This may create the impression that the employer is administering punishment in
an arbitrary or discriminating way, however, the employer may be able to justify
inconsistency through factors such as the employees’ different circumstances
(such as their length of service or their disciplinary record).

10. Is dismissal an appropriate action for contravention of the rule?

Dismissal should be seen as a matter of last resort and it will not be appropriate
for first offences unless the misconduct is so serious that it renders the
employment relationship intolerable. Whether or not dismissal is appropriate will
depend on

- the employee’s circumstances, including length of service, previous disciplinary

record and personal circumstances;
- the nature of the job, and
- the circumstances of the infringement itself

Unauthorised absence from work, abscondment, desertion & time-related

offences: An employee has a duty to make his services available to his employer
and if he does not arrive at work, he will breach this duty. The circumstances of
the employee’s absence will determine whether or not the employee can be
disciplined and dismissed: an employee cannot be dismissed for one incident of
tardiness, but dismissal may be appropriate for repeated incidents.

(ii) Discuss whether Zola can make out a case that, since she was only given an
hours notice for the disciplinary enquiry, her dismissal was procedurally
unfair.

1. The employer must conduct an investigation to determine whether there are

grounds for dismissal.
2. The employer must notify the employee of the allegations (in a form and language
that the employee can reasonably understand).
3. The employee must be given a reasonable time to prepare.
4. The employee must be allowed to state a case in response to the allegations.
5. The employee must be allowed the assistance if a union representative or co-
employee.
6. The employer must communicate the decision taken, and provide the employee
with written notification of the decision as well as the reasons for the decision.
 7. If the employee is dismissed, the employer must remind him of his rights to refer
the matter to a bargaining council or the CCMA.

In informal working environments, if a less formal procedure is followed, it will

still constitute a fair process. The main requirement is that the employer must
give the employee an opportunity to be heard and to defend himself against
allegations.

Discipline against a union representative or an employee who is an office bearer

or official of a union, should not be instituted without first informing and
consulting with the union.

An employer can dispense with a pre-dismissal hearing only under exceptional

circumstances, namely in crisis-zone situations (where there is a danger to life or
property), and if the employee waives his right to a hearing.

(iii) Discuss wether Zola would be able to argue that her dismissal was based on
unfair discrimination by MALO since Zola disapproved of MALO’s extra-
marital affair because of her (Zola’s) religious beliefs.

A dismissal, if based on unfair discrimination against an employee, whether

directly or indirectly, on any arbitrary ground will be automatically unfair.

The onus would, however, be on Zola to prove that the reason for her dismissal
was not for misconduct, but was in fact because of Malo’s religious beliefs. If Zola
can prove this, it creates an automatic presumption that the dismissal was based
on unfair discrimination. The onus will then shift to the employer to prove that
the discrimination was fair. (Harksen v Lane).

From the facts it does not appear that the reason for the dismissal was based on
Malo’s difference of opinion regarding Zola’s affair.

Question 38:

Briefly discuss the resolution of unfair labour practice disputes.

1. Alleged unfair labour practice by employer

2. The first step is for the Employee to refer the dispute to a BC/the CCMA for
conciliation (90 days) (ULP disputes MUST be referred to the CCMA)
3. If conciliation is successful, the matter is resolved
4. IF UNSUCCESSFUL – the dispute must be arbitrated by the bargaining council or
the CCMA at the request of the employee.

Exception to the Dispute Resolution:

 When instituting a dispute resolution for Probation, the LRA makes provision for con-
arb process. This makes provision for the conciliation process, that if it fails, the
commissioner will immediately continue with arbitration.

Arbitrators and commissioners have wide powers to grant relief to employees,

which may include:
- re-employment
- compensation of not more than the equivalent of 12 months’ remuneration.
- declaratory orders,
- protective promotions,
- remitting the matter back to the employer for reconsideration and
- reinstatement to a previous position in the case of demotion.

Although the LRA does not place the onus of proof on either party, the employee
who alleges an unfair labour practice must prove all the allegations, where after
the onus will be placed on the employer to show that the conduct was not unfair.

Question 39:

Members of the trade unions affiliated to Employee’s Association of South

Africa (the biggest trade union federation in the country), want to stop
working for two days in order to pressurize the government to change its
newly introduced Secondary Education Policy.

Discuss the nature of action they can engage in and the procedure which
must be followed in order for the action to be protected.

The right to protest

Trade unions play an important role in wider society – they take part in, and
influence, debates and policy decisions that impact on society in general.

One of the aims of the LRA is ‘to advance economic development, social justice,
labour peace and the democratisation of the workplace.

S77 of the LRA regulates protest action, and grants employees the right to
participate in protest action where it is instituted to promote or defend the socio-
economic interests of workers, provided that certain requirements are met. If the
requirements are met, the protest action will be protected and employees
participating in such action will be protected in the same way as employees
engaged in protected strike action.
 The nature of protest action

S213 LRA, protest action is ‘the partial or complete concerted refusal to work, or
the retardation or obstruction of work, for the purpose of promoting or defending
the socio-economic interests of workers, but not for a purpose referred to in the
definition of a strike’.

The types of action which would constitute protest action are the same as in the
case of a strike, however, the significant difference relates to the purpose of the
action.

What would constitute socio-economic interests is not defined - The Labour Court
has held that educational reform is a socio-economic matter.

Protest action in support of political matters is not authorised by the LRA: It is

one thing to embark on protest action in support of changes to educational
policies or in support for a demand that State pensions be increased; it is another
to embark on such action in an attempt to bring about a change in government.

Protest action is the successor of “stay-aways” which were used when people
wanted to bring about political change.

Procedural requirements for protected protest action

Due to the fact that protest action can affect the economy negatively, it must be
regulated.

S77 LRA: “Every employee who is not engaged in an essential or maintenance

service has the right to take part in protest action if-

(a) the protest action has been called by a registered trade union/federation of
unions;

(b) the registered trade union has served a notice on NEDLAC stating-
(i) the reason for the protest action; and
(ii) 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; and
(d) at least 14 days before the commencement of the protest action, the registered
trade union has served a notice on NEDLAC of its intention to proceed with the
protest action.”

CONSEQUENCES of protected protests:

If these requirements have been met, the protest action will be protected and
there will be protection against civil claims and against dismissal. Even if all
requirements are met though, the Labour Court can still prohibit such action. If
the protest action continues, it will become unprotected.

CONSEQUENCES of unprotected protests:

If the procedural requirements are not complied with, the protest action will not
be protected and the action may be prohibited by interdict, damages may be
claimed from the participating employees and they may be dismissed.

The consequences can apply to employees who participate in the protest action
OR contemplate such action and are therefore in breach of a court order.
Employees may not act n breach or contempt of a court order by the LC.
NB: They cannot participate in Strike Action because it is used to meet a
demand of matters of mutual interest between EMPLOYER and EMPLOYEE.

Question 40:

Polokwane Municpal Union (PMU) represents employees within the traffic

services, employed by the Polokwane Municipality. PMU approaches the
municipality for an across-the-board wage increase of 12%. The municipality
is adamant that due to lack of funds, it can only afford 8%. The members of
PMU are unhappy about this and are thinking of ways to force their
employer to accede to the demand.

Advise memebers of MEU on whether they are allowed to go on strike in

support of their demand.

STRIKES: to remedy a grievance or resolve any matter of mutual interest between

employers and employees.
REQUIREMENTS/HURDLES FOR A PROTECTED STRIKE/LOCK-OUT

No right is absolute and the LRA which accepts that the right to strike and the
right to recourse to a lockout may be limited in the interest of employers and
employees and in the public interest.
7. The action undertaken must comply with the definition of a strike or lock-out.

8. The procedural requirements prescribed by S64 LRA must be complied with.

Procedural limitations refer to those instances where the strike or lockout is not
prohibited, but where the strike or lockout will only be protected if certain
procedural requirements have been met.

9. The action must not be prohibited by S65 LRA.

Substantive limitations refer to instances where a strike or a lockout is absolutely
prohibited because of the parties involved and the nature of the services rendered
by the parties. The restrictions therefore focus on the nature of the dispute and
whether the dispute allows industrial action.

DEFINITION OF A STRIKE

Section 213 of the LRA defines a strike as ‘the partial or complete concerted
refusal to work, or the retardation or obstruction of work, by persons who are or
have been employed by the same employer or by different employers, for the
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.’

To qualify as a strike, the following three elements must be present,

simultaneously:-

4. A refusal to work (a complete or partial refusal, obstruction or retardation of

work) NB: Under normal circumstances, refusal to work amounts to misconduct.

5. A concerted refusal by persons (employed by the same or different employers)

6. Refusal for a specific purpose (of remedying a grievance or resolving a dispute in

respect of any matter of mutual interest between the employer and employees)

Question 41:

Draw a distinction between a “dispute of interest” and a “dispute of right”

and give an example for each.

Disputes of interest are disputes about the creation of new rights – they arise
where employees, or trade unions acting on behalf of employees, seek to further
their interest where there are no currently existing rights in the contract or
legislation, which they may enforce. An example of a dispute of interest is where
employees seek higher wages or new or improved conditions of employment in
general (more leave, less overtime, shorter working hours for the same pay, the
introduction of day-care facilities and the like). An employer may also demand
that employees accept a downward adjustment in their existing terms and
conditions of employment.

There is no existing right to the changed conditions of employment that may be

enforced, but the parties have an interest in such changes. Disputes of interest
are best resolved through collective bargaining and the law generally does not
prescribe what the outcome of an interest dispute should be, but it does regulate
what the parties may and may not do during the bargaining process.

Disputes of right are defined as disputes about the interpretation or application of

a right that already exists - where the parties do not seek to create a new right,
but rather seek to enforce an already existing right where it is felt that the other
party to the employment relationship breached that right. In such a case, the
dispute will not be about the entitlement to the right, but rather how the right
should be interpreted and applied.

Examples of disputes of right include disputes about unfair dismissal (the right
not to be unfairly dismissed already exists in the LRA), disputes about unfair
labour practices (the right to fair labour practices already exists in the LRA),
disputes about unfair discrimination (the right not to be unfairly discriminated
against already exists in the EEA) and disputes about a breach of contractual
rights (the contract is a source of rights). Disputes of right should be resolved
through arbitration or adjudication.

Question 42:

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.

What are the additional requirements for procedural fairness (according

to section 189A 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.

S189A affords either one of the parties the right to ask the CCMA to appoint a
facilitator to assist the parties during the consultations to resolve retrenchment
issues.

S189A introduces a moratorium of 60 days during which the employer may not
dismiss.
 If the matter remains unresolved, the parties can choose to refer the matter to the
Labour Court for adjudication, or to go on strike.

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.

“Similar needs” is a broad concept and one must look at the facts of each case to
determine whether or not a similar need exists (to justify the dismissal of
employees). For example, incompatibility/the breakdown of the trust relationship.

The following similar needs of an employer would justify retrenchment:

- the special operational needs of the business,

This concept could include working overtime, or working on Sundays or public

holidays or working shifts.

In Elliot Bros, the special operational needs of the business were given as the
reason for the dismissal of employees. The Company worked a seven-day week,
where three persons were employed to handle and look after incoming livestock at
the abattoir. They were dismissed after they refused to work overtime on
weekends (there was no express term in their employment contracts that they
had to work overtime). The Court held that it was irrelevant whether or not such
a term existed. It held that the employer had fairly dismissed the employees
because the operational requirements of the business were such that it needed
employees who were willing and able to work over-time on weekends.

- the employee's actions or presence has a negative effect on the business,

Here one must distinguish between two scenarios: In the first scenario the
particular employee's actions create disharmony, whereas in the second scenario,
the employee's mere presence causes dissatisfaction.

When dealing with a case where an employee's actions cause disharmony, an

employee may be incompatible. Different views exist as to whether or not an
incompatible employee can be dismissed for operational reasons.

In Joslin, the court held that incompatibility must be clearly distinguished from
eccentricity. In this case, Joslin, a marketing manager of the Company
 occasionally carried a camera around his neck at work or would walk around
with up to 36 pens in his shirt pockets or wore a Springbok cricket cap. He was
retrenched on the grounds that his actions created a negative impression
amongst co-workers which was seen to be prejudicing rather than promoting the
interests of the company. The court found the dismissal to be unfair and stated
that Joslin’s actions constituted a mild or harmless form of eccentricity, and that
these actions did not give rise to a ground for dismissal on the basis of
operational reasons. Only eccentric behaviour which is of such a serious nature
that it causes disquiet and disruption at the workplace would justify dismissal for
operational reasons

An employee who causes discontent amongst co-workers or customers could be

dismissed for operational reasons. In Albany Bakeries v Van Wyk, a manager
who made racist remarks was fairly dismissed because his presence caused
disharmony in the working relationship.

In ERPM Ltd v UPUSA & Others the court stated that “while an employer might
dismiss employees because it could not guarantee their safety in the light of the
reprehensible ethnic hostility of other employees, this could only happen when
the employer truly had no alternative.”

- the employee's conduct has led to a breakdown of the trust relationship,

An employee must act in good faith towards the employer – he must be honest
with regard to the employer's affairs. If the employee steals from the employer or
commits fraud against the employer, the employee will breach the duty to act in
good faith and the employer may hold a disciplinary enquiry and, if the
misconduct can be proved, the employee can be dismissed for the misconduct.

BUT, where an employer cannot prove that an employee has committed

misconduct (such as theft), the employee cannot be dismissed for misconduct.
Although the employer cannot prove that the employee is guilty of the
misconduct, it no longer trusts the employee and this could damage the
employment relationship and may impact negatively on the operational success of
the business. In such circumstances, the employer may be able to dismiss the
employee for operational reasons.

- the enterprise's business requirements are such that changes must be made to
the employee's terms and conditions of employment.

This could occur where a business is restructured to function more effectively or,
after a merger which necessitates changes to the employee's terms and conditions
of employment, for example, a company decides to close one of its factories
(which is running at a loss) and it offers new positions in its other factories to the
employees. If these employees refuse to be transferred, they may be dismissed for
operational reasons. They have become redundant, not as a result of the original
restructuring of the company, but as a result of their refusal to accept the new
positions offered to them.

This category of reason must be distinguished from dismissal for “structural

needs” listed in the definition of operational requirements. Dismissal based on the
“structural needs” entails that there has been a restructuring of the business and
that the employee has become redundant because of the restructuring.

Changes to the terms and conditions of the employee are not always necessitated
by changes in the enterprise. Changes may also become necessary as a result of a
change in the employee's circumstances or attitude towards the employer which
may have serious economic repercussions for the enterprise.

In Fry’s Metals, the employer wanted to change the shift system in the company
for more effective operation. He trade union refused despite several attempts at
resolving the matter. The employer then decided to dismiss the employees who
refused to work on the new shift system and replace them with employees willing
to do so.

Question 43:

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,
considering 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 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:

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.

Yes, CC is an employee.

The courts use the following three tests to determine whether a person is an
employee or not:

1. the control test, in terms of which a person is an employee if he is subject to the

control of his employer;

2. the organisation test, which looks at whether the person is part and parcel of
the business or organisation of the employer or not, and

3. the dominant impression test, which looks at the employment relationship as a

whole. The factors that the court will consider when applying the dominant
impression test include:

- the right to control or supervision,

- the extent to which the person depends on the employer in the performance of his
duties,
- whether the employee is prohibited from working for another employer as well,
- whether the person is required to devote a specific time to his work,
- whether the person is obliged to perform his duties personally,
- whether the person is paid according to a fixed rate or commission, and
- whether the person provides his own tools and equipment.

The dominant impression from the stated facts is that CC is an employee.

Furthermore, S200A of the LRA and S83A of the BCEA have brought in a
rebuttable presumption, in terms of which, a person who works for, or renders
service to any other person is presumed to be an employee, regardless of the form
 of the contract, until the contrary is proved, if one or more of the following factors
are present.

a) the manner in which the person works is subject to the control or direction of
another person;
b) the person’s hours of work are subject to the control or direction of another
person;
c) in the case of a person who works for an organisation, the person forms part of
that organization;
d) the person has worked for that other person for an average of at least 40 hours
per month over the last 3 months;
e) the person is economically dependent on the other person for whom he
works/renders services;
f) the person is provided with tools of trade or equipment by the other person;
g) the person only works for, or renders services to, one person.

Since CC usually works 45 hours per week (over the past 18 months), she will be
presumed to be an employee in terms of S200A of the LRA.

2. Discuss whether CCSS and CC could have agreed to arbitration instead of a

disciplinary hearing regarding the alleged misconduct.

3. Employee dismissed by employer

4. Employee has 30 days, from date of dismissal, within which to refer the dispute
to a BC / the CCMA for conciliation.
5. If conciliation is successful, the matter is resolved, IF NOT SUCCESSFUL
6. Matter is set down for arbitration, within 90 days, at a BC / the CCMA
7. Commissioner makes award
8. Review by LC possible in limited circumstances

9. CC believes that her unsuccessful application for promotion was based on

her having made a protected disclosure to the hotline. Discuss.

This type of unfair labour practice arises where an employee suffers an

occupational detriment (short of dismissal) in contravention of the PDA, on
account of having made a protected disclosure in terms of the PDA.

The PDA regulates disclosure by employees of information on suspected criminal

and other improper conduct by employers, and provides the employee with
certain remedies. The purpose of this protection is to prevent fear of reprisal once
the disclosure is made. The point is to promote a culture of openness.

The following three requirements must be satisfied before an employee can allege
an unfair labour practice based on an occupational detriment:-
4. The employee must have made a protected disclosure.
5. The employer must have taken some retaliating action against the employee
which results in the employee suffering from an occupational detriment.
6. The detriment suffered must be on account of, or partly on account of, the
making of the protected disclosure. This means that there must a causal link
between the disclosure and the retaliating action by the employer.

An occupational detriment occurs when an employee is subjected to any of the

following, as a result of having made a protected disclosure:
- 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 which is altered or kept altered to the
employee’s disadvantage;
- subjection to a term of retirement which is altered or kept altered to the
employee’s disadvantage;
- refusal of a reference, or being provided an adverse reference;
- denial of appointment to any position or office;
- being threatened with any these actions;
- being otherwise adversely affected in respect of employment, employment
opportunities and work security.

7. 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.

S187(1)(h) of the LRA makes a dismissal in contravention of the Protected

Disclosures Act an automatically unfair dismissal.

The Protected Disclosures Act protects employee’s who blow the whistle on
corrupt activities or criminal offences.

For a disclosure to be protected,

- it must be made in good faith, and
- in accordance with the procedure prescribed by the employer, or
- it must be made to the employer of the employee or institution nominated by the
employer for that purpose

In the Sekgobela case the court found that the main reason for the dismissal of
the employee was that he had made a protected disclosure about the employer’s
failure to adhere to tender procedures (and not misconduct as the employer
alleged), and that the dismissal was automatically unfair.

8. 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 (Could also be asked as a simple “List the four duties”
question)

1) To enter into the service of the employer

If an employee does not remain in the employer’s service, he will not be
remunerated (eg. No work no pay), exceptions to this rule include paid leave.

2) To work competently and to exercise due care and diligence

When entering into employment with the employer, the employee guarantees that
he is capable of doing the work, and that he will perform it competently, diligently
and without negligence. This competence is an implied term in the employment
contract. If, for example, an employee lies about his or her qualifications, that
employee will be found liable for breach of his duty, as he cannot then perform
said duty, the consequence of which may lead to the employee’s termination.

3) To obey lawful and reasonable instructions of the employer

The employee is under the control and authority of the employer. Non-compliance
with this duty will amount to serious insubordination and breach of contract,
except where the employee refuses to follow orders outside the scope of
employment.

If there is a close enough link between misconduct of an employee and the

employment relationship, the employer may discipline the employee for such
misconduct after hours, and/or off the employer’s premises, provided that the
link can be proven to exist in the particular circumstances. In NUM & others v
East Rand Gold & Uranium, an employee who attacked his supervisor on the bus
to work, was fairly dismissed.

4) To serve the employer’s interests and to act in good faith

An employment relationship is based on trust and confidence.
This is an implied duty which flows from the nature of the employment contract.
It includes, for example, the duty –
- not to work against the employer’s interests,
- not to compete with the employer,
- to devote hours of work to promoting the employer’s business and
- to act honestly.
- NB: This is also known as the fiduciary duty of the employee toward the
employer.

Question 44:

What is the difference between AWOL & desertion?

- AWOL = the employee does not want to terminate the employment contract, but
stays away from work without leave this would warrant a dismissal if the period
of absence is unreasonably long. If the employee returns after a few days with a
letter to show that he had a reason for the absence, for example having been
hospitalized or imprisoned, a dismissal will not be appropriate

- DESERTION = the employee, without resigning, stays away from work with the
intention of terminating the employment contract it will amount to a desertion.
The employer must terminate the employment contract by holding a disciplinary
hearing in the employee’s absence. If the employee later returns, the employer
must give him an opportunity to be heard.

Question 45:

Discuss dispute resolution for incapacity dismissals.

1. Employee dismissed by employer

2. Employee has 30 days, from date of dismissal, within which to refer the dispute
to a BC / the CCMA for conciliation.
3. If conciliation is successful, the matter is resolved,
4. IF NOT SUCCESSFUL the matter is set down for arbitration, within 90 days, at a
BC / the CCMA
5. Commissioner makes award
6. Review by LC possible in limited circumstances

Question 46:

Name 5 ways of terminating an employment contract.

Resignation by the employee

Termination on completion of an agreed period or task
Termination by mutual agreement
Termination on grounds of impossibility of performance
Termination on death
Termination as a result of insolvency of the employer
Termination as a result of retirement

Question 47:

Provide examples of disciplinary actions short of dismissal.

Written and final warnings and transfers could constitute unfair conduct by an
employer, for example, where the employer transfers the employee without good
cause and without following fair procedure.

Question 48:
 Employees may dispute the substantive and procedural fairness of any
disciplinary sanction short of dismissal, on the same principles that an
employee may use to dispute the fairness of a dismissal for misconduct
(substantive and procedural fairness). There are, however, three important
differences. Name these differences.

1. The employee must show that the sanction actually imposed was inappropriate;
2. It is easier for employers to justify sanctions lesser than dismissal; and,
3. As far as procedure is concerned, the lesser the sanction, the more informal the
procedure an employer may follow before the sanction is imposed.

Question 49:

Define and discuss “occupational detriment” in terms of the Protected

Disclosures Act.

An occupational detriment occurs when an employee is subjected to any of the

following, as a result of having made a protected disclosure:

- 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 which is altered or kept altered to the
employee’s disadvantage;
- subjection to a term of retirement which is altered or kept altered to the
employee’s disadvantage;
- refusal of a reference, or being provided an adverse reference;
- denial of appointment to any position or office;
- being threatened with any these actions;
- being otherwise adversely affected in respect of employment, employment
opportunities and work security.

Question 50:

Name and briefly descuss three forms of sexual harassment.

(1) Quid pro quo harassment: 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

(2) Sexual favouritism: a person in a position of authority rewards only those

who respond to his sexual advances

(3) Victimisation: An employee is victimised or intimidated for failing to submit

to sexual advances.
 Question 51:

What is the main reason why a distinction has to be drawn between an

employee and someone who is not?

Only persons who qualify as employees are protected by labour legislation.

Question 52:

List and describe the factors that the court will consider when determining
whether a person is an employee or not.

Courts have used the following three tests to determine whether a person is an
employee or not:

1. the control test, in terms of which a person is an employee if he is subject to the

control of his employer;
2. the organisation test, which looks at whether the person is part and parcel of the
business or organisation of the employer or not; and
3. the dominant impression test, which looks at the employment relationship as a
whole. The factors that the court will consider when applying the dominant
impression test include:

- the right to control or supervision,

- the extent to which the person depends on the employer in the performance of his
duties,
- whether the employee is prohibited from working for another employer as well,
- whether the person is required to devote a specific time to his work,
- whether the person is obliged to perform his duties personally,
- whether the person is paid according to a fixed rate or commission, and
- whether the person provides his own tools and equipment.

In an effort to assist in determining who qualifies as an employee and who does

not, section 200A of the LRA and S83A of the BCEA have brought in a rebuttable
presumption. In terms of this presumption, a person who works for, or renders
service to any other person is presumed to be an employee, regardless of the form
of the contract, until the contrary is proved , if one or more of the factors stated
in the presumption are present.

The Code: Who is an Employee? further clarifies the application of these tests to
ensure that it takes into account the realities of the modern workplace.

Question 53:

Will an employee be entitled to take family responsibility leave when

his/her spouse is ill?
 No, only in the event of sickness of a child will an employee be entitled to take
family responsibility leave.

Question 54:

Lola CC wants to test its employees for HIV/AIDS on a voluntary and

anonymous basis. Lola CC argues that it requires information on the
prevalence of HIV/AIDS in the workplace in order to assess the impact of
HIV/AIDS and to implement effective proactive measures to prevent employees
from becoming infected with HIV/AIDS. Does the CC have to apply to the
Labour Court for an order that such testing is authorised before it can
proceed with the testing?
Testing may be used to evaluate applicants for employment to determine whether
they are suitable for the job, and to evaluate existing employees. The EEA
regulates medical testing in general, HIV/AIDS testing, psychological and other
similar assessments. Such testing does not in itself constitute discrimination,
but the manner in which it is carried out may be discriminatory.

HIV/AIDS testing is prohibited unless

- the testing is considered to be justifiable by the Labour Court.
- The EEA does not stipulate the grounds upon which the Labour Court may
authorise the testing of an employee to determine his HIV status.

In Joy Mining Machinery, the following factors were specified as circumstances

under which HIV testing would be allowed

• to prevent unfair discrimination;

• if the employer needed HIV testing to determine the extent of HIV in the
workplace in order to place itself in a better position to evaluate its training and
awareness programmes, and in order to formulate future plans based on the
outcome of the tests;
• if the purpose of the testing was that the employer needed to know the prevalence
of HIV at its workplace in order to be pro-active in its prevention amongst
employees, and in order to treat the symptoms and to plan for contingencies,
including the fair distribution of employee benefits, medical aid and training of
replacement labour;
• if medical facts indicated the need;
• if employment conditions required testing;
• if social policy required testing;
• if the inherent requirements of the job necessitated it, or
• if particular categories of employees/jobs required such testing.

In Irvin & Johnson v Trawler & Line Fishing Union, the court stated that the
employer did not need to approach the Labour Court for authorisation to test if
the testing was voluntary and anonymous, as there could be no unfair
discrimination in which circumstances.

Question 55:

Mr Jones is an assistant shop manager at JoJo Pools. He has been

employed in this position for 2 years. When the manager falls ill, he is
asked to take over the responsibilities of the manager until the manager
returns. After a month, the manager resigns because of his ill-health. Mr
Jones performs the duties competently and diligently and has, on occasion,
been assured by the shop owner that he is satisfied with his work
performance. The position of manager is advertised applies for the position,
however, he is not appointed. Mr Jones feels that JoJo Pools has acted
unfairly. Advise Mr Jones.

Acting in a particular position does not entitle an employee to be appointed to

that position, however, in this case Mr Jones could argue that JoJo Pools had
created the expectation that he would be appointed to the position in which he
had been acting, because of the positive feedback he had received from the shop-
owner, and he accordingly believed that he would be promoted. It could,
however, be argued that the duty on the employer is to allow the employee to be
heard before it makes a decision whether or not to promote.

Question 56:

XYZ Co has, for the past 3 year, been paying employees a travel allowance of
R400 per month. This amount has never been increased. The union advises
XYZ Co that it intends to declare a dispute regarding the fact that the
amount has never been increased. Would this amount to a dispute of right
or a dispute of interest?

This is a dispute of interest, as it relates to a creation of new rights and not only
remuneration. Disputes of interest occur when issues of new or better terms and
conditions of employment and remuneration arise.

(With a dispute of right, the bargaining council/CCMA must determine whether

the dispute is about the enforcement of a right and the application and
interpretation of a right in terms of the law (BCEA), the employment contract or a
collective agreement.)

Question 57:

Michelle is a receptionist at a JJ’s Accountants CC, a large accounting firm

which has various branches all over South Africa. One day she arrives at
work with a tattoo showing on her shoulder. The office manager, Mary,
advises Michelle that she must cover up the tattoo as it is against the
employer’s code of conduct to have visible tattoos. Michelle refuses to cover
 up the tattoo and she and Mary get into an argument during which Michelle
calls Mary an ‘old-fashioned fart’. Mary accuses Michelle of being
insubordinate and Michelle is thereafter dismissed.

a) Would Michelle’s dismissal be substantively fair if she had never heard of

the rule?

11. Did the employee contravene a rule or standard regarding conduct in, or of
relevance to, the workplace?

It must first be established whether or not the rule which the employee is alleged
to have contravened existed. This is a factual question and one must look at the
circumstances surrounding the matter to determine whether or not the rule
existed. If the facts indicate that the rule did exist, it must then be determined
whether or not the employee contravened this rule.

The most important source of rules of conduct in the workplace is the disciplinary
code. If there is a disciplinary code for the workplace and if it does not contain
the particular rule, this may be an indication that the rule does not exist in the
workplace. There are a number of other sources which may contain the rule, for
example, the common law. The employee's common-law duties include a duty to
act in good faith

The employer can act against the employee if the latter is guilty of misconduct in
the workplace and during working hours. However, item 7(a) provides that the
employer can also act against the employee for misconduct which took place
outside the workplace and/or after working hours.

12. If so, was the rule valid and reasonable?

This is determined with reference to the needs of the workplace and business.
Whether the rule is valid or reasonable is a factual question. Generally, a rule will
be valid or reasonable if it is lawful and can be justified with reference to the
needs and circumstances of the business. There are a number of factors which
may determine whether or not a rule is justified, for example:
• the nature of the employer’s business,
• the circumstances under which the business operate,
• the type of work which an employee does,
• whether the rule was included in a disciplinary code that is contained in a
collective agreement between the employer and a trade union,
• the employer’s willingness in the past to enforce it.

13. Was the employee aware of the rule, or could he reasonably be expected to have
been aware of the rule?
 An employee should only be punished for actions which he knew were
unacceptable and he must have known that a transgression of this rule may lead
to dismissal. Some types of misconduct are so well known that it is not
necessary to advise an employee of such rule, for example, rules that have their
origin in the common law (theft).

14. Was the rule consistently applied by the employer?

• 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. An employer
cannot enforce a rule which has previously been ignored, as the conduct is
inconsistent with past conduct.

If a rule is to be enforced in the future, the employer must inform the employees
before, and the employer must ensure that all employees will know the penalty
for breaking the rule. He could for example draw up a document or notice or
inform the union.

Knowledge may be ensured through meetings, written briefs, notices on notice

boards, through induction programmes for new employees, etc.

Another factor which may indicate that the employee was aware of the rule is
previous warnings which the employee may have in respect of the rule.

• Contemporaneous inconsistency occurs where employees who breach the same

rule contemporaneously or at roughly the same time, are not all disciplined. An
employer’s treatment of several employees who are guilty of the same offence is
inconsistent.

This may create the impression that the employer is administering punishment in
an arbitrary or discriminating way, however, the employer may be able to justify
inconsistency through factors such as the employees’ different circumstances
(such as their length of service or their disciplinary record).

15. Is dismissal an appropriate action for contravention of the rule?

Dismissal should be seen as a matter of last resort and it will not be appropriate
for first offences unless the misconduct is so serious that it renders the
employment relationship intolerable. Whether or not dismissal is appropriate will
depend on

- the employee’s circumstances, including length of service, previous disciplinary

record and personal circumstances;
- the nature of the job, and
- the circumstances of the infringement itself

Unauthorised absence from work, abscondment, desertion & time-related

offences: An employee has a duty to make his services available to his employer
and if he does not arrive at work, he will breach this duty. The circumstances of
the employee’s absence will determine whether or not the employee can be
disciplined and dismissed: an employee cannot be dismissed for one incident of
tardiness, but dismissal may be appropriate for repeated incidents.

b) If Michelle and Mary meet after work in a bar around the corner from the
office and Michelle again calls Mary an old-fashioned fart with the result
that they start to fight and Mary slaps Michelle in the face. Mary believes
that the employer cannot take any action against her for misconduct as the
fight happened after working hours and off the employer’s premises. Advise
Mary.

In order to determine whether an employee can be disciplined for misconduct

committed outside of working hours and off the employer’s premises, it must be
determined whether the misconduct committed is relevant to the workplace.
Contravention of a rule/standard must be relevant to or affect the business of the
employer

c) Michelle suffers from depression and a nervous breakdown as a result of the

incident and is booked off from work for an indefinite period. JJ’s
Accountants wants to dismiss her, but does not know if it is allowed to
dismiss her and if so, on what basis they can dismiss her or what procedure
to follow. Advise JJ’s Accountants.

JJ’s Accountants might be able to dismiss Michelle on the basis of incapacity, in

the form of ill-health.

When determining whether a dismissal for reasons relating to ill-health or injury

is unfair, one must consider the following:-

Substantive fairness
1. The employer must make an informed decision;
2. the employer must determine whether or not the employee is capable of
performing the work; and
3. if the employee is not capable the employer must
- determine the extent to which the employee is able to perform the work;
- the extent to which the employee’s work circumstances might be adapted to
accommodate the disability, or
- where this is not possible, the extent to which the employee’s duties might be
adapted.

Procedural fairness
1. The employee must be given an opportunity to respond and make suggestions
(the employee may be assisted by a union representative or co-employee),
2. the employer must consult with the employee,
3. the employer must consider the available medical information, and
4. the employer must attempt to accommodate the employee where reasonably
possible.

The following checklist can be used to ensure procedural fairness in cases of

permanent or temporary illness or injury:

Did the employer take the following into account?

1. the nature of the job
2. the period of absence
3. the seriousness of the illness or injury
4. the possibility of securing a temporary replacement for the ill or injured employee
5. the degree of incapacity
6. the cause of the incapacity - if the employee is incapacitated as a result of a work-
related illness or injury, the obligation on the employer to accommodate the
incapacity of the employee is more onerous
7. the availability of any suitable alternative work or the adaptation of duties or
work circumstances to accommodate the employee’s disability

d) Michelle, after having been dismissed, is re-instated by order of the Court,

where after the employer makes her life unpleasant by requiring her to work
longer shifts and even transfers her to one of its other branches in a remote
part of South Africa. Michelle accordingly wants to resign. Advise Michelle
as to whether this would be wise.

If Michelle resigns and thus terminates the employment contract, it would

amount to a constructive dismissal, since she terminated the contract because
the employer had made continued employment intolerable.

In the case of a constructive dismissal, it is the employee who terminates the

employment contract, however his resignation is not voluntary, but is caused by
the actions or omissions of the employer and which made it impossible for the
employee to continue working for the employer.

According to the Copeland case the following elements must be present to

succeed with a claim for constructive dismissal: The employee must show
- that he has resigned
- that the reason for the resignation was that continued employment became
intolerable;
- that it was the employer’s conduct that created the intolerable circumstances
- that he resigned as a result of the intolerable behaviour of the employer.

• Gordon and Western Cape Education Department: the employee applied for
temporary incapacity leave due to ill health, however the employer took
unreasonably long to grant the leave and made unjustifiable deductions from his
salary. Court held – contructive dismissal – there dismissal was unfair.

• Vermeulen: NOT ALL CONSTRUCTIVE DISMISSALS ARE UNFAIR - The employee

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

Question 58:

Discuss the concept of progressive discipline.

The principle of progressive discipline entails that employees must know, and
must understand, the purpose of discipline. There must be certainty about
standards of conduct which are required of employees and the steps to correct
behaviour. Progressive discipline may consist of counselling and warnings, as
well as formal or informal advice and correction. Repeated misconduct may
warrant warnings, which may be graded according to degrees of severity. More
serious infringements or repeated misconduct may warrant a final warning, or
other action short of dismissal. Dismissal should not be a knee-jerk reaction to
all cases of misconduct but should be reserved for cases of serious misconduct or
repeated offences.

Question 59:

Emily works for Mr Hart, a businessman. Emily falls pregnant and advises
Mr Hart of her pregnancy. The next week Emily finds a letter on her desk
advising her that Mr Hart is unhappy about her work performance and also,
that he can no longer allow her to leave an hour early on Wednesdays and
Fridays, as she has been doing for the past year. Emily feels that this is
unfair and that Mr Hart’s allegation that he is not happy with her work
performance is untrue and she accordingly resigns. Advise Emily whether
she will be able to claim that she has been unfairly dismissed.

Although Emily has resigned, she could claim that she has been constructively
dismissed. Her resignation was as a result of Mr Hart making it impossible for
her to continue working. This dismissal will also amount to an automatically
 unfair dismissal in terms of S187(1)(e), which section protects employees against
dismissal for any reason relating to pregnancy. Emily will, however, have to
prove

- that she was an employee;

- that she was dismissed, and
- that the dismissal was indeed related to her pregnancy.

If Emily can prove all 3 of the above, her dismissal will be found to be an
automatically unfair (constructive) dismissal.

Question 60:

A collective agreement between employer Y and Union B, which represents

the majority of workers employed by employer Y states that employer Y will
only employ workers who are members of Union B. What type of agreement
is this – a discriminatory collective agreement, an agency-shop agreement,
or a post-entry or a pre-entry closed-shop agreement?

It is a pre-entry closed shop agreement. It requires the employer to employees

who are already members of Union B. The LRA prohibits pre-entry closed shop
agreements, and only allows post entry-closed shop agreements, which require
employees to be members of the union after commencing employment

An agency shop agreement requires an employer to deduct an agency fee from the
wages of employees who are not members of the union.

Question 61:

Sally works for Olive Distributors and is promoted to the position of

manager. Sally has been a member and trade union representative (shop
steward) of Olive Workers Union (OWU) since she started her employment
with Olive Distributors. When Sally is promoted, Olive Distributors tells her
that she must resign from the union, because she is now in a managerial
position. Advise Sally on whether Olive Distributors may force her to resign
from OWU.

A dismissal will be automatically unfair if an employer dismisses an employee

and the reason therefore is related to the employee’s trade union membership or
activities.

Freedom of association is a fundamental right and is protected by S18 & S23 of

the Constitution. This protection is further extended by S5 of the LRA –
employees have the right to form, join, belong to and participate in the lawful
activities of a trade union.
 All employees, including senior managers, enjoy the right to freedom of
association. If a senior manager is also a member of a trade union, there is a
potential for a conflict of interests, since a managerial employee may have access
to information that can harm the employer if divulged to the union. At the same
time, he cannot be dismissed when exercising the right to freedom of association.

IMATU & others v Rustenburg Transitional Council: Although a senior manager

cannot be prevented from joining a union, he must act in good faith towards his
employer, and in so doing, the employee must be careful in balancing the
interests of the union and the employer.

Question 62:

If a protected strike is unsuccessful, the employer may sue the union for the
damages is suffered as a result of the strike.

False. If a strike is protected, the employees are protected from civil liability and
the employer cannot hold them liable for damages incurred as a result of the
strike. The employer may claim damages where the employees commit unlawful
acts, such as damaging company property during the strike

Question 63:

State the procedural requirements with which a strike must comply in order
to be protected.

The following procedural requirements must be complied with for a strike/lock-

out to be protected:-

2. the issue in dispute must be referred for conciliation,

3. a certificate of outcome must be issued / 30 days must pass from date of referral
to conciliation, and
4. at least 48 hours’ prior written notice must be given to the other party.

Question 64:

What are the legal consequences of an unprotected strike?

1. Interdict

2. Employer may claim compensation for loss suffered

3. Dismissal
 Question 65:

Members of all trade unions which are affiliated to FEDUSA (Federation of

Trade Unions South Africa) want to pressurise the Government to change its
Educational Policy and in order to do this, they want to stop working for 3
days. What type of action will this amount to and what procedures must be
followed for such action to be protected?

S213 LRA, protest action is ‘the partial or complete concerted refusal to work, or
the retardation or obstruction of work, for the purpose of promoting or defending
the socio-economic interests of workers, but not for a purpose referred to in the
definition of a strike’.

The types of action which would constitute protest action are the same as in the
case of a strike, however, the significant difference relates to the purpose of the
action.

What would constitute socio-economic interests is not defined - The Labour Court
has held that educational reform is a socio-economic matter.

Protest action in support of political matters is not authorised by the LRA: It is

one thing to embark on protest action in support of changes to educational
policies or in support for a demand that State pensions be increased; it is another
to embark on such action in an attempt to bring about a change in government.

Protest action is the successor of “stay-aways” which were used when people
wanted to bring about political change.

Procedural requirements for protected protest action

Due to the fact that protest action can affect the economy negatively, it must be
regulated.

S77 LRA: “Every employee who is not engaged in an essential or maintenance

service has the right to take part in protest action if-

(a) the protest action has been called by a registered trade union/federation of
unions;

(b) the registered trade union has served a notice on NEDLAC stating-
(i) the reason for the protest action; and
(ii) 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; and

(d) at least 14 days before the commencement of the protest action, the registered
trade union has served a notice on NEDLAC of its intention to proceed with the
protest action.”

CONSEQUENCES of protected protests:

If these requirements have been met, the protest action will be protected and
there will be protection against civil claims and against dismissal. Even if all
requirements are met though, the Labour Court can still prohibit such action. If
the protest action continues, it will become unprotected.

CONSEQUENCES of unprotected protests:

If the procedural requirements are not complied with, the protest action will not
be protected and the action may be prohibited by interdict, damages may be
claimed from the participating employees and they may be dismissed.

The consequences can apply to employees who participate in the protest action
OR contemplate such action and are therefore in breach of a court order.
Employees may not act n breach or contempt of a court order by the LC.

Question 66:

The employers duty to provide employees with safe working conditions:

The employer is obliged to provide the employee with safe working conditions.
This would include the duty of an employer to
- provide employees with protective devices or install safety equipment,
- exercise proper supervision,
- protect employee against harassment (physical and psychological),
- contribute to the Compensation Fund to ensure that an employee injured
on duty will be compensated.
To not harass an employee in any way (refer to sexual harassment)

Question 67:

The regulation of family responsibility leave in terms of the BCEA:

• 3 days paid family responsibility leave per year.

• For the birth, illness of a child; or
• For the death of (adoptive) child/ spouse/ life partner/ (adoptive)parent/
grandparent/ grandchild or sibling.
• Only for employees who have worked for longer than 4 months and who work
at least 4 days a week.
• Does not include death/illness of, for example, in-laws or members of the
extended family – the interpretation of family responsibility leave is therefore
very narrow.
• NB: Leave for illness is limited to that of a child.

Question 68:

Duties of designated employers in designating affirmative action plans:

Every designated employer must implement affirmative action measures for

people from designated groups to achieve employment equity. The employer has
specific duties in designing an affirmative action plan:

• Consultation with representative trade unions and/or the employees, or

representatives nominated by them. The interests of employees from across
all occupational categories and levels at the workplace, from both the
designated as well the non-designated groups, must be represented when
consultation takes place.

• Disclosure of relevant information to the consulting parties to allow for

effective consultation.

• Collect information on, and analyse all its policies and procedures, in order to
identify employment barriers that adversely affect people from designated
groups. A profile of the workforce in each occupational category and level
must reflect the degree of under-representation.

• Prepare and implement an employment equity plan, including inter alia,

- objectives to be achieved for each year of the plan;
- numerical goals for under-represented people from designated groups;
- strategies and timetables;
- duration of the plan;
- procedures to monitor and evaluate the implementation of the plan;
- internal procedures to resolve any dispute about the plan, and
- people in the workforce responsible for monitoring and implementing the
plan.

• Reports to be made to the Director-General of the Department of Labour, on

the progress made (annually in the case of employers with more than 150
employees and bi-annually for employers with fewer than 150 employees.
• The employer must display a summary of the EEA in the workplace, provide a
copy of its Employment Equity Plan (EEP) to employees, and submit a
statement to the ECC on its employees’ income, in each category of the
workforce, with a view o reduce disproportionate income differentials. Failure
to comply with these duties may lead to fines for employers and state
contracts being refused or cancelled.
“Where disproportionate income levels and unfair discrimination with regards
to other conditions had been shown, submitting an income differential
statement on such pay differentiation at each level of occupation and the
reasons for it.

Question 69:

The refusal of an employer to bargain:

If an employer refuses to bargain with a trade union, the LRA allows for the
employees to embark on strike action to persuade 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’s disputing appropriate bargaining units, levels and topics.

Disputes regarding a refusal to bargain

1. Dispute arises
2. Referral to the CCMA for conciliation
3. Referral to CCMA for mandatory advisory arbitration
4. Award made, which provides guidance only, and is not binding on the parties.

Question 70:

Four methods of which a trade union can acquire organisational rights:

In terms of a collective agreement

The LRA allows for a registered trade union and an employer/employers’
organisation to conclude a collective agreement that will regulate organisational
rights. (Even if the union is not representative, it could acquire organisational
rights by concluding a collective agreement with the employer/employers’
organisation).

Membership of a bargaining council

A registered trade union that is party to a bargaining council automatically
acquires the right of access to the premises of the employer (S12) and the right to
have trade union subscriptions deducted by stop orders (S13), in respect of all
workplaces falling within the jurisdiction of the bargaining council, irrespective of
whether or not it is sufficiently representative.

Through strike action

Any trade union may strike in support of a demand for organisational rights, even
if the union is a minority union or does not have the required level or
representativity.

The S21 procedure:

1. The registered trade union must notify the employer, in writing, that it seeks to
exercise organisational rights. This notice must be accompanied by a certified
copy of the union’s registration certificate, and must contain the following
information:
- the workplace in which the union seeks to exercise the 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.

2. The employer and trade union must meet, within 30 days of the notice, and
must attempt to conclude a collective agreement.

3. If the parties fail to conclude a collective agreement, either party may refer the
matter, in writing, to the CCMA for conciliation.

4. If conciliation fails

a) The union may give notice of its intention to strike or the employer may give
notice of its intention to embark on a lock-out. (If either party gives such
notice, that party may not refer the dispute to arbitration for a period of 12
months from the notice).

(A union may not strike in support of a demand for disclosure of

information)

OR

b) Either party may request that the dispute be arbitrated. The arbitration
award will be binding on the parties. According the Amendment Act, an
arbitrator’s award is binding on employers, clients of TES, and any person
other than the employer who controls access to the workplace if the person
has been given an opportunity to participate in such arbitration
proceedings.
Question 71:

Distinguish between “Consultation” and “Joint Decision Making”:

Consultation means that the employer:

1. allows the forum to make representations and to advance alternative
proposals, and
2. consider and respond to these and, if the employer disagrees with them, that it
must state the reasons for disagreeing

If the employer and the forum do not reach consensus, the employer must use
any agreed procedure to resolve differences, before implementing the employers
proposal.

JOINT DECISION-MAKING

Joint decision-making requires the employer to consult and reach consensus with
a workplace forum.

Matters for joint decision-making are matters which cannot be regulated by a

collective agreement, for example, matters relating to

1. disciplinary codes and procedures,

2. the proper regulation of the workplace (except for work-related performance),
3. measures designed to protect and advance persons disadvantaged by unfair
discrimination, and
4. changes by employer-representatives on boards of employer-controlled
schemes with regard to social benefits.

A representative union and the employer may enter into a collective agreement
which will grant the forum joint decision-making in respect of further matters, or
removing matters.

Question 72:

Distinguish between “Essential Services” and “Maintenance Services”:

S75(1) LRA: a service is a maintenance service if the interruption of that service

has the effect of material physical destruction to any working area, plant or
machinery.’
S213 LRA: essential services means a service the interruption of which endangers
the life, personal safety or health of the whole or any part of the population;

Question 73:
Briefly discuss Night Work provisions in terms of the BCEA:
• Work done after 18h00 and before 06h00.
• Night work is only allowed if there is an agreement to this effect and the
employee is compensated by
- payment of an allowance or
- a reduction in working hours, and
- the employee must be provided with transport between his place of residence
and the workplace.

Question 74:

Pam, who is a foreigner from Russia, is employed as a call centre agent by

Company A with effect from 1 April 2013. Pam’s work permit expired at the
end of December 2013. As a result, she received a letter from Company A
informing her that her employment contract is terminated with immediate
effect because she does not have a valid work permit.

Advise Pam on whether her claim against Company A for unfair dismissal
will be successful?

S185 LRA: every employee has the right not to be unfairly dismissed by the
employer.
If an employee alleges he has been unfairly dismissed, he must prove that he:
- is an employee (only employees are protected by the LRA)
- has been dismissed (ito S186(1))

In order for a contract to be valid, including that of an employment contract, it

must comply with the following requirements and must have:
1. Consensus
2. Capacity
3. it must be legal
4. it must be possible
5. comply with formalities
6. contain ascertainable terms.

UNPROTECTED (ILLEGAL) WORKERS

(Specifically focuses on the legal aspect)
In the Kylie case, the LC found that Kylie, a prostitute, was not entitled to the
LRA’s protection against unfair dismissal, as the courts (and the CCMA) could not
sanction or encourage illegal activities. The LC’s decision was overruled by the
LAC which held that the Constitutional right to fair labour practices extends to
‘everyone’, including sex workers, and that although such workers may not claim
the remedies in terms of the LRA, they will be protected in terms of the
Constitution. A claim for fair labour practices will have to be brought in terms of
S23 Constitution and not in terms of the LRA, because there is no valid
employment contract, and she will not be protected against unfair dismissal. A
prostitute consequently now has a right to fair labour practices as a result of the
employment relationship which exists irrespective of the illegality of the type of
work performed.

In the Discovery Health case, the court had to decide whether or not an employee
who did not have a valid work permit could claim unfair dismissal. The court
considered the Immigration Act, which prohibits employment of illegal foreigners
and which states that any employer who knowingly employs an illegal foreigner in
contravention of the Act commits an offence, and found that the intention was to
deter employers from intentionally hiring persons in contravention of the Act. An
employer should not be permitted to escape its obligations, through criminal
conduct by employing unauthorized persons. An employer who employs an
illegal foreigner may accordingly not refuse to pay a worker on the basis that he is
an illegal foreigner – such illegal foreigner may still be able to enforce his
contractual rights against the employer. The court held that although an illegal
foreigner is not protected by labour legislation, such workers are protected by the
Constitution which guarantees everyone the right to fair labour practices and to
dignity. The LAC accepted that although an employment contract is needed for a
claim of labour rights in terms of the LRA, S23(1) Constitution provides wider
protection than labour legislation and if a person is in a relationship similar to
that of an employment relationship, he enjoys the protection of the right to fair
labour practices.
In conclusion,
- If the employment contract is valid, it will be enforceable and the worker will be
protected by the LRA against unfair dismissal.
- If the contract is not valid, the worker is not protected by the LRA, but is still
protected by the S10 (right to dignity) and S23 (right to fair labour practices)
rights in the Constitution.

Question 75:

Discuss the employer’s failure to renew a fix-term contract as a form of

dismissal:

• A fixed term contract is held by an employee whose contract is terminated:

o at the occurrence of a specific event
o completion or task of a project
o on a specific date (this does not include retirement age)
• A fixed-term contract, or renewal thereof must be in writing and include the
reasons thereof.
Where the employer terminates the contract with or without notice and where 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, the dismissal of the employee will be unfair.

Question 76:

Alfred’s manager found Alfred drunk on duty several times. At the

disciplinary hearing, Alfred alleges that he is actually an alcoholic.
Discuss whether the employer can dismiss Alfred based on misconduct or
incapacity?
If an employee is found to be drunk on duty, it will amount to misconduct and
would warrant dismissal. If the employee, however, alleges that he is an alcoholic,
the employer should rather consider incapacity as the ground for dismissal,
because the Code: Dismissal requires employers to regard alcoholism and drug
abuse as incapacity, and recommends counseling and rehabilitation rather than
dismissal.
The reasons for dismissing a probationary employee can be ‘less compelling’ than
those for dismissing an employee whose appointment has been confirmed.

Question 77:

What does freedom of association for workers entail?

S18 Constitution:
protects freedom of association in general.
S23 Constitution:
(1) protects freedom of association of workers, employers, trade unions and
employer’s organisations.
(2) every employee can join, participate in activities of the trade union, strike (3)
every employer can join and form an employer’s organization
(4) trade unions and employers organisations have a right to determine their own
administrative programs and activities, and to form and join a trade union and to
organize and form a federation.
(5) every employer, trade union and employers organization has the right to
engage in collective bargaining.

The LRA
- grants employees and employers the right to freedom of association,
- protects employees and job applicants (an employer may not require an
applicant for a job to give up membership to a particular union) and
- limits freedom of association it in at least the following three important ways:
▪ by making union membership subject to the constitution of the trade union
 ▪ by allowing closed shop agreements
▪ by allowing agency shop agreements

Question 78:

What are the three main functions of bargaining councils?

S28 LRA: A bargaining council has three main functions:

1. to conclude collective agreements;
2. to enforce those collective agreements, and
3. to prevent and resolve labour disputes.

Question 79:

What are the requirements with which a picket must comply in order for the
employees to enjoy protection?

For a picket to be protected, it must comply with S69(1) of the LRA:

1) It must be authorised by a registered union.

Unregistered trade unions may not authorise a picket.
The authorisation of a picket must be done in accordance with the union’s
constitution, it must be formal and in writing, and must be accompanied by a
resolution authorising the picket, and must be served on the employer prior to
the commencement of the picket.
2) It must be for the purpose of peacefully demonstrating

A picket must be peaceful. Intimidation and violent conduct will result in civil
and criminal liability.
Therefore, for a picket to be peaceful it must comply with the definition set out
in terms of the LRA.
3) It must be
- in support of any protected strike or
- in opposition to any lock-out

Pickets in support of secondary strikes are also allowed.

The picketers may carry placards, chant slogans, sing and dance. The picketers
may not physically prevent members of the public, including customers, other
employees and service providers from gaining access to or leaving the employers
premises and they may not take any action which is unlawful.
S69(2): a picket may take place in any place where the public has access but
outside the employer’s premises, or, if the employer consents thereto, on the
employer’s premises. The employer may not unreasonably withhold such consent.
NB: The Amendment Act adds that the CCMA may grant that the picket may be
held someplace other than that of the employer if that person had an opportunity
to make representations at the Commission before the rules were established.
The Code sets out certain factors which should be considered when determining
the reasonableness of an employer’s refusal to allow the picket to take place on
the employer’s premises:-
- the nature of the workplace and its situation,
- the number of employees proposed to take part in the picket on the employer’s
premises, and
- the undertaking by the union to exercise control over the picket.

If the CCMA authorises a picket on the employer’s premises, and the employer
refuses the picketers access, the trade union may refer a dispute to the CCMA for
conciliation and if this fails, to the LC for adjudication.

Question 80:

Which dismissals are deemed “no-fault” dismissals?

1. Dismissal based on disability
2. Operational requirements
3. Constructive dismissals
4. Ill health/injury.

Question 81:

List the 6 actions that are defined under S186 of the LRA?

• 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
• An employer refused to allow an employee to resume work after she took maternity
leave in terms of any law, collective agreement or her contract of employment
• an employee dismissed a number of employees for the same or similar reasons,
and offered to re-employ one or more of them and refused to employ another
(selective re-employment).

Where the employer terminates the contract with or without notice

• An employee terminated her contract of employment with or without notice

because the employer made continued employment intolerable for the employee;
• an employee terminated a contract with or without notice because the new
employer, after transfer in terms of S197 or S197A, provided the employee with
 conditions or circumstances at work that are less favourable to the employee than
those provided by the old employer.

Question 82

Although medical testing is generally prohibited on employees, there are

circumstances in which medical testing is justified. List 5 of these

- legislation requires the testing, or

- if testing is justifiable in the light of medical facts,
- employment conditions,
- social policy,
- the fair distribution of employee benefits or
- the inherent requirement of the job.

Question 83

Labour Brokers and a client could be held jointly and severally liable in terms of
the LRA for contravening the BCEA. Explain the meaning of “Jointly and Severally
Liable”

Both parties will be liable to the full extent of the damages caused in such a situation.
This means that the “Employee” can hold both liable for the full amount claimed. For
Example, if the outcome of the Employees case is that he is awarded 3 month’s salary as
compensation, both the Labour Broker and the client would be liable to the Employee.
Whichever party pays, the same party can then privately claim from the other their
payment.

Question 84

Tim and John decide to start a business that sells roses. The business has to take
into account that the products are perishable and this requires them to vary some
of the minimum terms and conditions of employment set by the BCEA. Time tells
John 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.

a) List the terms and conditions of employment that are non-variable in terms of
the BCEA

- maximum working hours;

- provisions relating to sick leave;
- 4 months’ maternity leave;
- not less than 2 weeks’ annual leave;
- provisions relating to night work.
b) Lidia, who has a qualification in marketing, is appointed as a marketing officer
by Tim and John, what are the three possible outcomes when her probation
expires?

- Hired
- Dismissed
- Probation Extended
c) After the business has been in operation for some time, 5 of its 39 employees
take maternity leave at more or less the same time. On their return they are
informed that their services are no longer required, as new employees were
employed in their positions.

Discuss the nature of the dismissal of the 5 employees who went on maternity
leave and whether their dismissal was justified

Refusal to allow an employee to resume work after maternity leave

The BCEA provides that an employee is entitled to four consecutive months’ (unpaid)
maternity leave. If an employer refuses to allow an employee to resume work after having
taken maternity leave, the refusal (termination) will constitute dismissal.

S187 of the LRA defines automatically unfair dismissals:

(1) A dismissal is automatically unfair if the employer, in dismissing the employee,

acts contrary to S5 or, if the reason for dismissal is-
(i) the employee’s pregnancy, intended pregnancy or any reason relating to her
pregnancy

Question 85

During consultations between the employer and the trade union prior to
dismissal for operational reasons, the parties must attempt to reach
consensus on 6 matters. List them

- appropriate measures to avoid dismissals,

- appropriate measures to minimise the number of dismissals,
- appropriate measures to change the timing of the dismissals,
- appropriate measures to mitigate the adverse effects of the dismissals,
- the selection criteria, and
- severance pay

Question 86

Distinguish between a “trade union” and a “workplace forum”

A trade union is a juristic body which deals with wage related issues and which may
embark on industrial action.
A workplace forum is not a juristic person. It deals non-wage related issues and may not
embark on industrial action.

Question 87

CNT Company and Employees Union commence their annual wage

negotiations in the beginning of February 2016. Employees Union demands
and across the board wage increase of 12%. CNT Company is adamant,
however, that it can only afford 4.5% across the board increase. Employees
Union 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. Employees Union then issued CNT Company with notice of its
intention to strike.

a) assuming that the strike is protected, discuss whether CNT Company may
dismiss the striking employees

1. No dismissal (except for misconduct/operational requirements)

2. No breach of contract / delict
3. No interdict
4. No compensation
5. No discrimination
6. No remuneration

b) Discuss whether CNT Company is obliged to continue remunerating

(paying) members of Employees Union who are engaged in the protected
strike.

The common law rule of ‘no work, no pay’ applies to strikes and lock-outs. The LRA
states that an employer is not required to remunerate employees for services that have
not been rendered (during a strike/lock-out).

Remuneration includes benefits afforded to employees such as housing subsidies and

medical aid or provident fund contributions. If the employees’ remuneration includes
payment in kind in the form of accommodation, food or other basic amenities of life, the
employer may not stop this payment in kind during the strike or lock-out if the
employees request that it continues. After the strike or lock-out the employer may
recover the monetary value of the payment in kind from the employees by way of legal
proceedings in the Labour Court.

Question 88

Formal equality as a form of equality based on Section 9(3) and 9(4) of the
SA Constitution

Formal equality focuses on protecting individuals against discrimination. It regards

individual ability and performance as the only factors which relevant to achieve success
in society. Formal equity is protected through the prohibition against unfair
discrimination;

Question 89

The duty of the employer to deal fairly with the employee

This duty is derived from the constitutional right to fair labour practices. The LRA
protects employees against unfair treatment during employment (ULPs) and against
unfair dismissals. This duty includes other common-law duties such as the duty to
receive the employee into service and to comply with other statutory obligations. This
point is specifically covered by S23 of the Constitution

Question 90

Discuss the meaning of “same work” for the purposes of “equal pay for
work”

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 for performing the same or similar work based on a specified
or unspecified ground constitutes less favourable treatment. Therefore, any claim of
equal pay for equal work that is the same or similar may be brought in terms of the EEA

Question 91

Maximum working hours in terms of the BCEA

• Maximum: 45 hrs / week & 9 hrs / day – if employee works 5 days a week.
• Employees who work more than 5 days a week may only work 8 hrs a day.
• This may be extended by a max of 15 minutes a day / 60 minutes a week if employees
serve members of the public.

Question 92

Shane (Pty) Ltd (“Shane”) is a reputable and reliable motor vehicle dealing in
FourwayS. Shane sells both luxury and semi luxury caravans. In 2015, Shane
encountered financial problems since it could not sell enough caravans
compared to previous years. As a result three directors were dismissed
(retrenched) in an attempt to save the business. The hard times continued and
in July 2016 Shane wants to dismiss (retrench) more employees and
approaches you for advice

a) under which category of operational reasons will the dismissal of

employees in this case fall?
“Economic needs” relates to the financial management of the company. This includes
situations experienced by the business as a result of changes in the market, a decrease
in the demand for products, a decrease in production, cost implications in compliance
with the BCEA.

b) assume that the reason for their dismissal is due to the fact that Shane
bought a new machine in order to increase production. Will this constitute a
valid reason for dismissal based on operational reasons?

“Technological needs” introduction of new technology which leads to redundancy of

employees.

Question 93

What do the concepts “lifo” and “fifo” mean?

Lifo – Last in First Out

Fifo – First in First Out

Question 94

Discuss a dismissal based on Dishonesty

the employment relationship is based on trust and confidence and theft by an employee
will breach this trust and is a fair reason for dismissal.

Question 95

Discuss the binding nature of a Collective Agreement by a Bargaining

Council

A collective agreement will bind:

1. the parties to the agreement;

2. each party to the agreement and the members of every other party to the agreement
insofar as the provisions are applicable to them

3. members of a registered trade union and employers who are members of a registered
employers’ organisation that are party to the collective agreement if it regulates –
- terms of conditions of employment,
- the conduct of the employer in relation to their employees or the conduct of the
employees in relation to their employer
4. employees who are not members of the registered trade union(s) party to the
agreement, if –
- the employees are identified in the agreement,
- the agreement expressly binds the employees, and
- the trade union(s) represent the majority of all the employees employed in the
workplace.
A collective agreement varies any contract of employment between an employee and an
employer if they are both bound by the collective agreement. This means that the
collective agreement becomes part of every individual employment contract of those
employees who are bound by the collective agreement

Question 96

Remuneration for work done on Sundays and public holidays in terms of the
BCEA

Sundays

• The employee must be paid double his hourly wage to work on a Sunday if he does not
normally work on a Sunday.
• If the employee does normally work on a Sunday, he must be paid one-and-a-half
times his wage for each hour worked.

Public Holidays

• If the employee does not work, he gets paid his normal hourly wage.
• If he is asked to work, and agrees, he must be paid at least double his hourly wage.

Question 97

Temporary Employment Services/Labour Brokers as employers

• Employees employed by them are therefore temporary employees who are

employed by Labour Brokers.
• This creates a triangular relationship between the TES, temporary employee and
the client.
• The Act defines TES as: “any person who, for reward, procures for or provides to a
client other persons who render services to, or perform work for, the client, and who
are remunerated by the temporary employment service”.
• Employers may use TES for a limited or unlimited period if they comply with the
restrictions below:
o Limited: TES can provide an employee to the client for 3 months or to fill
the position of an employee who is temporarily absent.
o Unlimited: the employee is provided to the client but on a temporary basis
– this length of time is determined by the relevant bargaining
council/sectorial determination/MoL.
• If there is non-compliance by the client, in other words, the client abuses the use
of TES, the “employee will become a permanent employee of the client and no
longer work for or be supplied by TES”.
• The employee may hold the employer (the labour broker) and client jointly and
severally liable if the TES contravenes:
o A collective agreement by a bargaining councils which regulates terms and
conditions of employment
o A binding arbitration award which regulates terms and conditions of
employment
o The BCEA
 lOMoAR cPSD| 4402399

MRL 3702
CASES
 lOMoAR cPSD| 4402399

Mashava v Cuzen & Woods Attorneys (2000) 21 ILJ 402 (LC)

Principle:

Where an employer dismisses an employee because she is pregnant , this will be an

automatically unfair dismissal.

Facts:

A candidate attorney failed to disclose her pregnancy to the employer. Her probation
was terminated on the basis of her deceit in not disclosing the fact of her pregnancy.
The court held that true and principal reason for her dismissal was the fact of her
pregnancy or at least for reasons related to her pregnancy.

Extract from the judgment:

The Labour Relations Act protects employees from unfair dismissal (see section
185). Dismissal on prohibited grounds, including pregnancy, leads to what the Act
terms an automatic unfair dismissal (see section 187). If the dismissal is not
automatically unfair the employer must prove that the dismissal is fair for reasons
related to conduct, capacity or operational requirements or is for a fair reason based
on the employer's operational requirements and that the dismissal was effected in
accordance with a fair procedure (see section 188). The onus is on an aggrieved
employee to prove that there has been a dismissal as defined (see section 192(1)).
Once the existence of the dismissal has been established the onus is on the
employer to show that the dismissal is fair (see section 192(2)).

Section 187(1)(e) of the LRA reads:

"(1) A dismissal is automatically unfair if the employer, in dismissing the employee,

acts contrary to section 5 or if the reason for the dismissal is -(e) the employee's
pregnancy, intended pregnancy, or any reason related to her pregnancy."

The purpose of protecting female employees from dismissal for reasons of

pregnancy, intended pregnancy or reasons related to pregnancy is to ensure as far
as possible that female employees are not disadvantaged, as they traditionally have
been, by virtue of their being woman and the child-bearing members of the human
race.

The fist issue in this case is whether the candidate was dismissed. The onus of
proving that she was dismissed rests on her. Mr Sutherland SC, who appeared on
behalf of the firm, contended that she had not been dismissed and that she had not
shown that she had been dismissed. He submitted that her contract of employment
had terminated at the instance of the firm but that this was not a dismissal as it was
one of two events contemplated by the concept of probation. Either she would be
suitable for employment as a candidate attorney or she would not be suitable. In the
 lOMoAR cPSD| 4402399

first instance a new relationship would be concluded on the basis of statutory articles
(see section 2 of the Attorneys Act 53 of 1979). In the second the relationship would
simply terminate.

This is true. But it does not mean that an employer may terminate a contract of
employment of a probationary nature for the reason that the employee is pregnant. It
may well have a bearing on the nature of the relief but the principle stands firm. No
employer may dismiss an employee for reason of her pregnancy, intended
pregnancy or for reason related to a pregnancy. I do not deal with possible
defences...I am of the opinion that the firm terminated the contract of employment in
the sense of a dismissal of the services of the candidate as contemplated by section
186 of the LRA.

The next question which arises is whether the dismissal is for a fair reason. The
onus proper, as I have pointed out, to prove this lies on the firm. But where an
aggrieved employee complains that the dismissal is automatically unfair by reason of
her pregnancy and thus seeks double the ordinary compensation, how should the
issue of pregnancy be raised? Who should raise it and what is sufficient evidence?...

Although the principal reason for the firm terminating her services was her alleged
deceit, this deceit was not, on the evidence, deceit at all. The true and principal
reason for her dismissal was the fact of her pregnancy or at least for reasons related
to her pregnancy.

The candidate seeks 24 months' compensation for her dismissal. Section 194(3) of
the LRA provides that this Court may award her such compensation as is just and
equitable in all the circumstances but not exceeding the equivalent of 24 months'
salary calculated at the employee's rate of remuneration on the date of dismissal.
The compensation is, in my view, intended to compensate her for her loss - both
patrimonial and non-patrimonial loss.
 lOMoAR cPSD| 4402399

SUMMARY
An employee who has a genuine cultural belief that she should attend a course to be
trained as a traditional healer in response to a calling from her ancestors and that
failure to do so could result in illness, even death, is justified in being absent from
work on the basis of being sick. An employer cannot discipline such an employee for
misconduct, even if such employee disregarded a direct instruction to return to work
and had no remaining leave available. However, in circumstances where the
employee’s absence has a serious impact upon the employer’s business, the
employer is entitled to institute incapacity proceedings in accordance with the
provisions of the Labour Relations Act 66 of 1995, as amended, (“LRA”).

COURT’S DECISION
In the recent case of Kievits Kroon Country Estate v Mmoledi (875/12) [2013]
ZASCA 189 (29 November 2013), the Supreme Court of Appeal had to address the
above issue.

The employer, a company that offered conference and leisure facilities to its clients,
dismissed the employee, a chef de partie, for misconduct as a result of her
absenteeism from work and her failure to follow a direct instruction. The employee
had exhausted her sick leave when she received a vision and calling from her
ancestors that she attend a course on traditional healing for a period of three weeks.
She approached her employer requesting leave. However, as the employer could not
afford for the employee to be absent for a significant period of time, the employer
agreed that she could take unpaid leave, but only for one week.

While on unpaid leave, the employee was contacted by her employer informing her
that her application for further leave (in excess of the one week granted to her) had
been denied. The employee indicated that she could not return to work and did not,
in fact, return. The employee’s reason for non-attendance was that she truly believed
that failure to attend the course could result in illness, even death. The employee
also handed her employer a sick note from her traditional healer which expressed
the need for the employee to attend the course. The employer nevertheless
dismissed the employee for misconduct and insubordination.

The Supreme Court of Appeal, in upholding the Commission for Conciliation,

Mediation and Arbitrations (“CCMA”) and Labour Court’s decisions, found that the
employee’s dismissal was unfair. The court emphasised the need to take into
account the employee’s cultural beliefs and indicated that where it can be shown that
the employee had a sincere and genuine belief that she had no option but to attend
the course for fear of the consequences, she was justified in being absent and in
 lOMoAR cPSD| 4402399

refusing to comply with the employer’s instruction. In such circumstances, the failure
of the employee to report for work could be said to be justifiable and reasonable.

The court did, however, caution that an employer is not expected to tolerate an
employee’s prolonged absence from work and it may be fair, in certain
circumstances, to terminate the employee’s employment by virtue of incapacity due
to ill health.

IMPORTANCE OF THE CASE

Cultural values must be taken into account in the workplace. However, employers
will only be obliged to give credence to an employee’s beliefs as a valid excuse for
disobeying an order or absenting him/herself from work, where it is clear that such a
belief is genuine and sincere.

Even if the belief is sincere, the employer can still dismiss the employee for
incapacity due to ill health; provided the procedures prescribed within the LRA are
adhered to.
 lOMoAR cPSD| 4402399

Independent Municipal & Allied Trade Union v Rustenburg Transitional

Council
is an important case in South African labour law. The council (the employer in this
case) had adopted a resolution that its employees in senior managerial positions
would not be permitted to serve in executive positions of trade unions; nor would
they be permitted involvement in trade-union activities. The resolution was later
amended to remove the prohibition on trade-union activities, but the prohibition on
holding executive positions remained.

A union with members employed by the council, and some senior managers who
were members of the union, approached the Labour Court for an order declaring the
resolution to be in contravention of the Constitution.

The court granted the order, but did indicate that there were limitations to the scope
of section 4 of the Labour Relations Act.

It pointed out that, in terms of common-law principles, an employee owed an

employer a "duty of fidelity"—that is, a duty to act in good faith—and that, because of
the conflicting aims of trade unions and employers, participation in trade-union
activities could, in the case of senior managerial employees, breach this duty of
fidelity.

This question arises time and time again – I am a senior manager – may I join a
trade union?

The question was raised in IMATU & others v Rustenburg Transitional Council
[1999] 12 BLLR 1299 (LC). The case dealt with the question of senior managers
holding membership or holding office in a trade union. In this particular matter, the
employer adopted a resolution prohibiting senior managerial employees from serving
in the executive positions in trade unions and prohibiting them from participating in
trade union activities. After an objection by some of its management, the employer
withdrew the requirement that they were not allowed to be involved in union
activities, but refused to withdraw the prohibition on senior management serving in
executive positions in trade unions. The employees based their argument on the fact
that the amended resolution contravened the provisions of the LRA and the
Constitution.

The employer maintained that their senior managers could not remain loyal to the
employer, and at the same time remain loyal to the trade union as office bearers of
their union. The employer also maintained that if a senior manager was a member or
office bearer of a trade union, he could not also at the same time remain loyal to
those responsible for disciplining staff in the employment organization. The employer
maintained that any person joining a trade union, including its senior managers,
 lOMoAR cPSD| 4402399

automatically became committed to that body. The union was committed to

maximise the benefits of its members as derived from employment.

The employer maintained that senior managers could not remain loyal to that type of
commitment and at the same time remain loyal to the employer. The Court stated
that whilst there was no direct evidence to show that leaves senior managers would
commit a breach of the duty to the employer by excepting a position on the executive
of a trade union, or by becoming a member of a trade union, it was logical to assume
that such a breach of duty to the employer would easily occur. It cannot be denied
that a conflict between capital and labour always has been there and will continue to
be there. Therefore, by committing themselves to a trade union, employees " go over
to the opposition" as it were.

Employers are entitled to expect a greater loyalty from senior managers, and a
senior employee who took up a leadership role in a trade union was automatically
placed in a position of struggle against the employer. Therefore, in terms of common
law it could be said that a senior employee should not be permitted to join a trade
union. However, in terms of the Constitution, every employee has the right to join
and hold office in a union and to participate in its activities. The LRA makes similar
provisions.

The opinion of the court was that if it was the intention of the lawmakers to make a
distinction between ordinary employees and senior employees with regard to
membership of trade unions, then it would have done so - in the LRA and in the
Constitution. However, no such distinction has been made. The court felt that despite
these legal rights, employees who joined trade unions are still obliged to perform the
work for which they were engaged - and this would include loyalty to the employer.

It would seem obvious that a senior manager who is a member of a trade union or an
office bearer of a trade union, would bring about a serious conflict of interest. Senior
employees who do not perform the duties for which they were engaged as a result of
trade union membership, could be charged with misconduct and face disciplinary
action. Senior employees who are considering membership of a trade union must
therefore exercise great caution in making this decision.

It would therefore seem that whilst an employer cannot prohibit a senior employee
from joining a trade union or from holding office in the trade union, the loyalty of that
employee to the employer would be seriously brought into question. Due to other
reasons, occasioned by such an employee's membership or holding office in the
trade union, might subsequently result in that employee being dismissed.
 lOMoAR cPSD| 4402399

AMCU & Others v Chamber of Mines of SA & Others (CCT87/16) [2017] ZACC 3
(21 February 2017)

Principle:

1. The 'workplace' is not the place where any single employee works - it is where
employees collectively work. In determining that, 'location' is not the primary
factor, 'functional organisation' is. A 'workplace' may be a single location or a
number of locations, based on the independence of those operations in the
light of their size, function and organisation.
2. Majoritarianism is a recurrent theme throughout the LRA. Whilst its application
may limit the right to strike, this is justified through benefitting orderly
collective bargaining.

Facts:

The Chamber of Mines, acting on behalf of its members in the gold mining sector
(including Harmony Gold, AngloGold Ashanti and Sibanye Gold), negotiated wages
and working conditions with unions representing the majority of workers in the
sector, namely NUM, Solidarity and UASA. The resulting collective agreement
expressly made it applicable to all the companies' employees in terms of s23(1)(d) -
ie even those not members of those unions.

AMCU did not accept the employers' offer and was not a party to the agreement. In
January 2014, it notified the three companies mentioned above that its members
were going on strike from 23 January 2014 at 5 specific mines at which it had
majority membership. AMCU was not however the overall majority union at any of
the mining companies who own those mines. In response, the Chamber obtained a
Labour Court interdict in terms of s.65(1) and (3), which prohibit striking by anyone
who is bound by a collective agreement that either prohibits a strike or even
regulates the issue in dispute. The LC accepted that AMCU's members at those
mines were bound by the collective agreement concluded with the majority unions.

AMCU appealed the LC decision to the LAC, but failed. This was then referred to the
Constitutional Court. The crisp issue facing the CC was whether the collective
agreement negotiated with the unions having an overall majority in the sector,
applied at the 5 mines at which AMCU had a majority. This required the CC to
consider and apply the definition of a "workplace" in s213, which provides as follows:

"If an employer carries on or conducts two or more operations that are independent
of one another by reason of their size, function or organisation, the place or places
where employees work in connection with each independent operation, constitutes
the workplace for that operation".
 lOMoAR cPSD| 4402399

The CC accordingly had to decide whether each mine where AMCU had a majority
was an "independent operation" by reason of its "size, function or organisation"? In
summary, AMCU argued that the collective agreement should not have been
extended in terms of s23(1)(d) to apply at those 5 mines at which it had majority
membership, as the other unions did not have a majority at those workplaces - those
mines should have been regarded as "the workplace" for the purposes of the LRA.
Further, the application of s23(1)(d) in this instance was unconstitutional, as it
interfered with the constitutional right of AMCU's members to strike.

The CC did not agree. The CC confirmed that for the purposes of the LRA,
a 'workplace' is not the place where any single employee works - like that
individual's workshop or assembly line or desk: it is where employees collectively
work. And in determining that, 'location' is not the primary factor, 'functional
organisation' is. This then means that a 'workplace' may be a single location or a
number of locations, based on the independence of those operations in the light of
their size, function and organisation.

On the facts of this case, the CC agreed with both the LC and the LAC that the 5
mines at which AMCU had majority membership, were not independent operations.
The CC found that each mining company constituted a single industry-wide
workplace, despite the fact that at some of the individual mines, the companies had
concluded separate recognition agreements with AMCU.

The CC noted that majoritarianism is a recurrent theme throughout the LRA. The CC
recognised that its application in this instance limited the right to strike, but that this
was justified in that majoritarianism, in this context, benefitted orderly collective
bargaining.

The key then to determining the workplace is whether the operation is 'functionally
independent' - not where it is located. This will be determined on the facts of each
case. Parties intending on persuading a court to accept their interpretation of the
'workplace' in their particular circumstances, will need to lead convincing evidence
relating to the independence of that workplace on the basis of its size, function and
organisation.

Extract from the judgment:

(Cameron J:)

[24] Two things are immediately notable about the way the statute defines
"workplace". The first is its focus on employees as a collectivity. The second is the
relative immateriality of location. Both signal that "workplace" has a special statutory
meaning.

[25] First, "workplace" is not the place where any single employee works - like that
individual's workshop or assembly line or field or desk or office. It is where "the
 lOMoAR cPSD| 4402399

employees of an employer", collectively, work. The statute approaches the concept

from the point of view of those employees as a collectivity. This accords with the role
the term "workplace" plays in the LRA. This sees workers as a collectivity, rather
than as isolated individuals. And that in turn squares with the statute's objects. The
promotion of orderly bargaining by workers, collectively, is one of the statute's
express primary objects. That the focus of the definition of "workplace" is on workers
as a collectivity rather than as separate individuals fits.

[26] The second point follows. It is that location is not primary: functional
organisation is. The definition encompasses one or more "place or places where
employees of an employer work". This means that "the place or places" where
workers work may constitute a single workplace. That entails the intrinsic possibility
of locational multiplicity for a single "workplace". Right at the outset this eliminates
any notion, which the ordinary meaning of "workplace" might encourage, that each
single place where a worker works is a separate "workplace".

[27] The first part of the definition creates a default rule that, regardless of the
places, one or more, where employees of an employer work, they are all part of the
same workplace. The second part superimposes a proviso in the form of an
exception - regardless of how many places where employees work, different
"operations" may be different workplaces only if they meet the criteria the definition
specifies. The key is whether an operation is independent - not where it is located.
Yet again, no significance is attached to the "places" where employees work, since
the term features in both parts of the definition. Each independent operation, which
constitutes a separate "workplace", may itself be at one or more separate locations.

[28] Hence the proviso determines not so much whether separate physical places
of work are separate workplaces, but rather whether independent "operations",
however geographically dispersed, are separate workplaces. The pivotal concept is
independence. If there are two or more operations and they are "independent of one
another by reason of their size, function or organisation" then "the place or places
where employees work in connection with each independent operation, constitutes
the workplace for that operation". This is a test of functional organisation, and not
geography or location.

[29] Both features of the definition - its approach to workers as a collectivity, and its
de-emphasis of geography - have a practical bite. They signal that for purposes of
the LRA "workplace" doesn't have its ordinary meaning: the legislature has assigned
a special meaning to the term. It follows that AMCU's contention that the ordinary
meaning of "workplace" applies, namely the geographical places of work of its
members, at their individual mines, faces into a conceptual windstorm. It must battle
against not only the specified statutory wording, but the entire statutory context that
supports that meaning and in which it is embedded.

[30] It is this statutory definition the Labour Court and the Labour Appeal Court
applied. Was each AMCU-majority mine a separate "workplace"? That depends not
 lOMoAR cPSD| 4402399

on the mines' geographic location or where the individual workers worked, but on the
functional signifiers of independence the definition lists. It requires one to determine
whether the employer companies conduct two or more operations "that are
independent of one another by reason of their size, function or organisation".

[31] On this question, the facts before the Labour Court and the Labour Appeal
Court were not in dispute. They related to the organisational methodology and
practicalities of each mining company. The Labour Court and the Labour Appeal
Court both found, in conclusory terms, that the individual AMCU-majority mines did
not constitute independent operations. They were not swayed by the fact that, at
some of the individual mines, the companies had concluded separate recognition
agreements with AMCU. Each mining company constituted a single industry?wide
workplace.

............................

[37] The question is not whether a single mine can constitute a "workplace". It
obviously can. The definition expressly provides for that. Instead, the critical issue is
whether any of the five AMCU-majority mines was an independent operation by
reason of size, function or organisation. Both the Labour Court and the Labour
Appeal Court determined that each mining house operated integrally as a single
workplace, and that each AMCU-majority mine was not an independent operation.
Even upholding AMCU's argument that the application of the statutory definition is
not a purely factual enquiry does not lead to a different finding. No reason in
constitutional principle, legal analysis or factual assessment provides a reason for
this Court to overturn those findings. To this one should add that the findings of the
Labour Court and the Labour Appeal Court are owed special consideration since
they operate as specialist tribunals.

...........................

[49] Once majoritarianism is recognised as a founding principle of the LRA, the

statute must unavoidably determine some practical way in which the principle
operates. Without a constituency that defines it, there cannot be a collectivity.
AMCU's complaint is not that the majority counts, but how to define the constituency
within which the majority counts. And thence flows its constitutional grievance.

[50] AMCU is right that the codification of majoritarianism in section 23(1)(d) limits
the right to strike. The key question is whether the principle provides sufficient
justification for that limitation. Both the Labour Court and the Labour Appeal Court
gave detailed and extensive consideration to this. I do not seek to improve their
reasoning. In short, the best justification for the limitation the principle imposes is that
majoritarianism, in this context, benefits orderly collective bargaining.

[51] Perhaps a different definition of "workplace" might have worked equally well, or
maybe even better, or been fairer to smaller or emergent unions. AMCU makes a
 lOMoAR cPSD| 4402399

plangent case for saying so. But that is not the question before us. Our task as
judges is not to pick and choose between the rights and wrongs, advantages and
disadvantages, of different constituency models. Our responsibility is much narrower.
It is to determine whether the model Parliament has in fact chosen passes scrutiny
under the Bill of Rights.
South African Police Service v Police and Prisons Civil Rights Union and Another
( CCT 89/10) [201 ] ZACC 21

On 9 June 2011 the Constitutional Court handed down a judgment in an application for
leave to appeal against a decision of the Labour Appeal Court which interpreted the
meaning of an “essential service” as defined in the Labour Relations Act (LRA).
The Labour Appeal Court’s decision affirmed that only members of the South African
Police Service (SAPS) employed under the South African Police Service Act (SAPS
Act) were engaged in an essential service. It held that the employees of the SAPS
employed under the Public Service Act (PSA) were non-member employees and did
not engage in an essential service. The importance of this determination was that only
those employees who were not engaged in an essential service were able to strike.
On appeal to the Constitutional Court, the applicant contended that the SAPS as a
whole was defined as an essential service in the LRA, and therefore that all services –
those carried out by members as well as those carried out by non-member employees
– are essential to the effective functioning of the SAPS.
The respondents argued that the distinct use of “employee” and “member” throughout
the SAPS Act indicated the legislature’s intention to treat the services provided by each
type of employee differently. Therefore services carried out by non-member employees
are not essential, and their right to strike under section 23 of the Constitution should not
be limited in any way.
In a unanimous judgment by Nkabinde J, the Constitutional Court interpreted the
phrase ‘essential service’ restrictively, so as to avoid impermissibly limiting the
fundamental right to strike as entrenched in section 23(2)(c) of the Constitution. The
Court held that the phrase cannot be interpreted in isolation, but that regard must be
had to the purpose of the provisions of the LRA and the SAPS Act, and the context in
which the phrase appears, so as to give effect to the right to strike. The Minister could
designate non- member employees as members of the SAPS if he deemed them as
such in terms of section 29 of the SAPS Act. The Court upheld the decision of the
Labour Appeal Court and held that not all SAPS employees carry out an
essential service.
The Court dismissed the appeal with no order as to costs.
 lOMoAR cPSD| 4402399

The Labour Appeal Court (LAC) has during 2015 provided some guidance on the
interpretation and implications of section 200A of the Labour Relations Act (LRA)
in the context of a volunteer relationship. In terms of this section a person, who
works for or renders services to another person, is presumed an employee if one or
more of seven factors are present – regardless of the form of the contract.

Universal Church of the Kingdom of God v Myeni and Others (2015) 36 ILJ
2832
(LAC)

The facts
Mr Myeni was appointed as a pastor of the Universal Church of the Kingdom of
God (the Church). He signed, in pursuit of this appointment, two documents
entitled; ‘Regulation for Pastors’ and ‘Declaration of Voluntary Service’. The
Church claimed that these documents confirmed that Mr Myeni was not employed
by the Church. The documents expressly provide, among other, that he ‘is not an
employee of the Church but renders his voluntary service according to his Christian
convictions.’ After the Church terminated his services Mr. Myeni approached the
Commission for Conciliation, Mediation and Arbitration (CCMA) claiming that he
was an employee and he was dismissed unfairly by the Church. He claimed, among
other, that he was paid a stipend by the Church in the sum of R1 875 per week and
both the Unemployment Insurance Fund and Pay-As-You-Earn deductions were
made from this stipend.

Decisions of CCMA and Labour Court

The CCMA commissioner resolved that Mr Myeni was an employee, he was
unfairly dismissed and ordered the Church to pay him compensation of R64 994.
The Labour Court agreed substantially with the commissioner and found that some
of the factors, listed in section 200A of the LRA, were indeed present in the
relationship between the two parties, including that Mr Myeni:
Executed his worked subject to the control or direction of the Church;
Hours of work were subject to the control or direction of the Church;
Worked for the Church for at least 40 hours per month; and
Was economically dependent on the Church and earned no other income.
The Labour Court concluded therefore that the Church did not rebut the section
200A presumption. This meant thatMr Myeni was an employee of the Church when
his relationship with the Church got terminated.

Decision of the Labour Appeal Court

The LAC disagreed with the above conclusion and offered some guidance as to
how the matter should be approached. Mr Myeni alleged that he was employee of
the Church. The LAC found that he must prove that he was indeed an employee of
the Church in terms of the LRA.
The main question is whether ‘there existed facts which objectively established that
Mr Myeni was indeed the employee of the Church’.
 lOMoAR cPSD| 4402399

Employee vs Volunteer/…

Was section 200A of the LRA properly interpreted?

The LAC agreed that some of the factors listed in section 200A were present in the
relationship between Mr Myeni and the Church. This, according to the LAC, did not
mean that the presumption of
employment automatically applied. The LAC considered the circumstances within
which Section 200A became law. It was aimed at safeguarding and protecting
vulnerable workers who, ordinarily fall within the ambit of the LRA, but
concluded contracts as independent contractors with unscrupulous employers who
wanted to avoid the application of the LRA. The LAC concluded that: “Therefore, in
terms of section 200A, even if a contract does not refer to ‘employment’, it is
presumed to be an employment contract if the s200A factors are present.” Section
200A of the LRA includes a phrase: ‘regardless of the form of the contract’, which
according to the LAC, was not included by mistake. It means that the existence of a
contract is a prerequisite for section 200A to be applicable. In other words, if there is
no contract, this section finds no application. Judge Ndlovu of the LAC remarked
that: “In my view, therefore, a proper construction of section 200A of the LRA
requires that there must be a legally enforceable agreement or some
contractual working arrangement in place between the parties, for section 200A to
apply.”

Was there any legally enforceable agreement in place?

The LAC then had to establish if there was any legally enforceable agreement in
place between Mr Myeni and the Church. If not, section 200A is not applicable. The
LAC found that the ‘Regulation for Pastors’ and ‘Declaration of Voluntary Service’ as
signed by both parties constituted an agreement between them. The LAC reviewed
the documents and concluded that it was clear from the content thereof that the
parties never intended to enter into any legally binding agreement. The documents
did not constitute an employment contract and no employer and employee
relationship existed. The LAC further found that the payment of the stipend was not a
remuneration package.

A gentle rebuke
In closing, Judge Ndlovu also admonished the parties and other religious leaders
with the following comment: “I think it is time that the resolution of disputes of this
nature, with religious spiritual connotations or arising from internal church doctrinal
governance, be left to the leadership of the church concerned, unless there is a real
compelling reason for a court to get involved.”

Volunteers and the Law

It should be noted that the LAC considered this matter within the context of the LRA,
but a number of other labour-related laws have implications for the volunteer
relationship. Have a look at our website for the following resources:
NPO Legal Issues May/June 2013 (Special Edition) When is a Volunteer an
Employee?
NPO Governance Guides: Volume 2 - A Practical Legal Guide to SA Volunteers