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MODULE NAME: MODULE CODE:

LABOUR LAW LLAW7321/d/p

ASSESSMENT TYPE: TEST (PAPER ONLY)

TOTAL MARK ALLOCATION: 60 MARKS
TOTAL HOURS: 1 HOUR (+10 minutes reading time)
INSTRUCTIONS:
1. Please adhere to all instructions in the assessment booklet.
2. Independent work is required.
3. Ten minutes per hour of the assessment to a maximum of 15 minutes is dedicated to reading
time before the start of the assessment. You may make notes on your question paper, but not
in your answer sheet. Calculators may not be used during reading time.
4. You may not leave the assessment venue during reading time, or during the first hour or during
the last 15 minutes of the assessment.
5. Ensure that your name is on all pieces of paper or books that you will be submitting. Submit all
the pages of this assessment’s question paper as well as your answer script.
6. Answer all the questions on the answer sheets or in answer booklets provided. The phrase
‘END OF PAPER’ will appear after the final set question of this assessment.
7. Remember to work at a steady pace so that you are able to complete the assessment within
the allocated time. Use the mark allocation as a guideline as to how much time to spend on
each section.
Additional instructions:
1. This is an OPEN BOOK assessment.
2. Calculators are not allowed.
3. This is an open book assessment with limited resources (legislation only). The relevant excerpts of
legislation have been attached at the end of the assessment as Annexure A.

ACADEMIC HONESTY DECLARATION

Please complete the Academic Honesty Declaration below.

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Declaration
SIGN
I have read the assessment rules provided in this declaration.
This assessment is my own work.
I have not copied any other student’s work in this assessment.
I have not uploaded the assessment question to any website or App offering
assessment assistance.
I have not downloaded my assessment response from a website.
I have not used any AI tool without reviewing, re-writing, and re-working this
information, and referencing any AI tools in my work.
I have not shared this assessment with any other student.
I have not presented the work of published sources as my own work.
I have correctly cited all my sources of information.
My referencing is technically correct, consistent, and congruent.
I have acted in an academically honest way in this assessment.

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Question 1 (Marks: 20)

Answer the questions below.

Q.1.1 Distinguish between individual and collective labour law and provide an example of (5)
the application of each.

Q.1.2 Give an exposition of the main sources of labour law. Note that you should include (7)
an example of each source.

Q.1.3 With reference to the lexical order of sources, explain which of the following would
take precedence over the other source in the scenarios below:

Q.1.3.1 The employees of ABC Bank in Limpopo have contracts of employment (4)
that state that they are entitled to 25 days annual leave per year. There
are no sectoral or ministerial determinations applicable to the banking
sector in their area. There is however a collective agreement that states
that employees who work full time in the banking sector in Gauteng and
North-West are entitled to 22 days annual leave. ABC Bank has now
reduced all employees’ leave entitlement to 22 days. The employees are
unhappy and approach you, their trade union representative for advice
to determine whether they are entitled to 22- OR 25-days annual leave.

Q.1.3.2 The manager at Lama Corporations has been working for the company (4)
for 4 years. She has never used any of her maternity leave. In January
2024 her baby is born, and she wanted to take maternity leave. The
owners of Lama Corporation state that as a senior managerial employee
she is not entitled to maternity leave and furthermore that she signed a
contract that clearly stated that she not entitled to maternity leave. She
approaches you as her attorney for advice.

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Question 2 (Marks: 20)

Read the scenarios below and the answer the questions that follow:

Q.2.1 Ingrid has fallen on tough times. She tells her friend that she is struggling
(12)
financially and that her salary as a salesperson for Forever Distributors is just not
cutting it. Her friend tells her that he has been selling schedule 6 and schedule 7
weight loss products for Dr John and earns commission on every sale. Ingrid
contacts Dr John and he agrees to let her sell the same pharmaceuticals for him.
Ingrid had been selling the drugs for about 5 months and receiving a good salary
every month with the following conditions:
• Ingrid needs to report to Dr John daily on her sales for him to prepare the
products;
• She sells the products from 09.00 till 15.00hrs everyday;
• Ingrid’s phone broke and Dr John replaced it for her as she is his top seller;
• Ingrid received 5% commission on every sale.
One day Ingrid gets a call from Dr John who is furious that Ingrid tried to sell the
products to an under-cover police officer. Dr John is now under investigation for
the illegal sale of prescription drugs. He screams at Ingrid that she is fired.

Ingrid really needed the income and refers the matter to the CCMA for an unfair
dismissal. Dr John laughs it off, as Ingrid never worked for him.

Advise Ingrid on whether she is an employee or independent contractor and

whether she will be successful in her claim or not.

Q.2.2 Basil works for Mike Enterprises as a driver. He delivers packages to various
(8)
depots on a 100km round trip every day through Gauteng. He is a very cautious
driver. On 17 January 2024 the roads are extremely busy as all the kids in
Gauteng are back at school. While on his normal route, he stops at Big Bird
Garage for a coffee as the roads are too busy. While reversing out of his parking,
he smashes into a car next to him as he was turning to wide. Gugu, whose car
was hit is furious. Basil gives her all his employer’s information. Back at the office,
the manager of Mike Enterprises advises Basil that they will be deducting
R20,000.00 from his salary for the accident he caused.

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Basil approaches you, his cousin who is studying law, to advise him on whether
he is personally liable for the accident.

Question 3 (Marks: 20)

The Basic Conditions of Employment Act 75 of 1997 sets out the minimum conditions of
employment.

Q.3.1 Read the below scenarios and discuss in terms of the BCEA:
Q.3.1.1 Maggie works for Water Inc. as a marketing manager. She can hire and (5)
discipline staff. She has a staff compliment of 40 people. Maggie’s
contract states that she is entitled to a lunch break of 30 minutes.
Maggie often misses her lunch break as the other managers like to
schedule meetings with her in that time. Maggie is now tired of this and
approaches the CEO. She states that she will phone the Department of
Labour if this continues, and she wants her hour lunch break. The CEO
tells her that she is not entitled to a lunch break. The CEO calls you in,
the HR Manager, to explain whether Maggie is entitled to a lunch break
and how long it should be. Discuss Maggie’s entitlement to a lunch
break.
Q.3.1.2 Lebo works for Paperclip Franchises as a document controller. Lebo (5)
works 4 days a week from 08:00 to 17:00. Lebo has been with the
company for 3 years and has an immaculate attendance record. On the
25th of January 2024 Lebo is involved in a serious accident and is
hospitalised. She is booked off for 40 working days. Lebo is not
concerned, because she has, in her mind, 36 days sick leave. She is
shocked when her employer tells her that she only has 24 days sick
leave. They cannot agree on the number of days and ask you, the HR
Manager to advise how many days sick leave Lebo is entitled to.

Q.3.2 Discuss the scope and application of the BCEA (i.e. to whom do the provisions of (5)
the BCEA apply?)

Q.3.3 Discuss the ways in which the provisions of the BCEA (conditions of employment) (5)
may be varied with specific reference to ministerial determinations.

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ANNEXURE A: BASIC CONDITIONS OF EMPLOYMENT ACT 1997

To give effect to the right to fair labour practices referred to in section 23(1) of the Constitution by
establishing and making provision for the regulation of basic conditions of employment; and thereby
to comply with the obligations of the Republic as a member state of the International Labour
Organisation; and to provide for matters connected therewith.
BE IT ENACTED by the Parliament of the Republic of South Africa as follows:—
CHAPTER TWO
Regulation of working time
Application of this Chapter
6. (1) This Chapter, except section 7, does not apply to—
(a) senior managerial employees;
(b) employees engaged as sales staff who travel to the premises of customers and who regulate their
own hours of work;
(c) employees who work less than 24 hours a month for an employer.
(2) Sections 9, 10(1), 14(1), 15(1), 17(2) and 18(1) do not apply to work which is required to be done
without delay owing to circumstances for which the employer could not reasonably have been
expected to make provision and which cannot be performed by employees during their ordinary
hours of work.
(3) The Minister must, on the advice of the Commission, make a determination that excludes the
application of this Chapter or any provision of it to any category of employees earning in excess of an
amount stated in that determination.
(4) Before the Minister issues a notice in terms of subsection (3), the Minister must—
(a) publish in the Gazette a draft of the proposed notice; and
(b) invite interested persons to submit written representations on the proposed notice within a
reasonable period.

Regulation of working time

7. Every employer must regulate the working time of each employee—
(a) in accordance with the provisions of any Act governing occupational health and safety;
(b) with due regard to the health and safety of employees;
(c) with due regard to the Code of Good Practice on the Regulation of Working Time3 issued under
section 87(1)(a); and
(d) with due regard to the family responsibilities of employees.

Interpretation of day
8. For the purposes of sections 9, 10 and 11, ‘‘day’’ means a period of 24 hours measured from the
time when the employee normally commences work.

Ordinary hours of work

9. (1) Subject to this Chapter, an employer may not require or permit an employee to work more
than—
(a) 45 hours in any week; and
(b) nine hours in any day if the employee works for five days or fewer in a week;
Or
(c) eight hours in any day if the employee works on more than five days in a week.
(2) An employee’s ordinary hours of work in terms of subsection (1) may by agreement be extended
by up to 15 minutes in a day but not more than 60 minutes in a week to enable an employee whose
duties include serving members of the public to continue performing those duties after the
completion of ordinary hours of work.
(3) Schedule 1 establishes procedures for the progressive reduction of the maximum ordinary hours
of work to a maximum of 40 ordinary hours of work per week and eight ordinary hours of work per

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day.

Overtime
10. (1) Subject to this Chapter, an employer may not require or permit an employee—
(a) to work overtime except in accordance with an agreement;
(b) to work more than—
(i) three hours’ overtime a day; or
(ii) ten hours’ overtime a week.
(2)An employer must pay an employee at least one and one-half times the employee’s wage for
overtime worked.
(3) Despite subsection (2), an agreement may provide for an employer to—
3. The Code of Good Practice issued by the Minister of Labour under section 87(1)(a) will contain
provisions concerning the arrangement of work and, in particular, its impact upon the health, safety
and welfare of employees. Issues that would be included are shift work, night work, rest periods
during working time, family responsibilities and work by children.
(a) pay an employee not less than the employee’s ordinary wage for overtime worked and grant the
employee at least 30 minutes’ time off on full pay for every hour of overtime worked; or
(b) grant an employee at least 90 minutes’ paid time off for each hour of overtime worked.
(4) (a) An employer must grant paid time off in terms of subsection (3) within one month of the
employee becoming entitled to it.
(b) An agreement in writing may increase the period contemplated by paragraph (a) to 12 months.
(5) An agreement concluded in terms of subsection (1) with an employee when the employee
commences employment, or during the first three months of employment, lapses after one year.

Compressed working week

11. (1) An agreement in writing may require or permit an employee to work up to twelve hours in a
day, inclusive of the meal intervals required in terms of section 14, without receiving overtime pay.
(2) An agreement in terms of subsection (1) may not require or permit an employee to
work—
(a) more than 45 ordinary hours of work in any week;
(b) more than ten hours’ overtime in any week; or
(c) on more than five days in any week.

Averaging of hours of work

12. (1) Despite sections 9(1) and (2) and 10(1)(b), the ordinary hours of work and overtime of an
employee may be averaged over a period of up to four months in terms of a collective agreement.
(2) An employer may not require or permit an employee who is bound by a collective agreement in
terms of subsection (1) to work more than—
(a) an average of 45 ordinary hours of work in a week over the agreed period;
(b) an average of five hours’ overtime in a week over the agreed period.
(3) A collective agreement in terms of subsection (1) lapses after 12 months.
(4) Subsection (3) only applies to the first two collective agreements concluded in terms of
subsection (1).

Determination of hours of work by Minister

13. (1) Despite this Chapter, the Minister, on grounds of health and safety, may prescribe by
regulation the maximum permitted hours of work, including overtime, that any category of
employee may work—
(a) daily, weekly or during any other period specified in the regulation; and
(b) during a continuous period without a break.
(2) A regulation in terms of subsection (1) may not prescribe maximum hours in excess of those

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permitted in sections 9 and 10.

(3) A regulation in terms of subsection (1) may be made only—
(a) on the advice of the chief inspector appointed in terms of section 27 of the
Occupational Health and Safety Act, 1993 (Act No. 85 of 1993), or the chief inspector appointed in
terms of section 48 of the Mine Health and Safety Act, 1996 (Act No. 29 of 1996); and
(b) after consulting the Commission.

Meal intervals
14. (1) An employer must give an employee who works continuously for more than five hours a meal
interval of at least one continuous hour.
(2) During a meal interval the employee may be required or permitted to perform only duties that
cannot be left unattended and cannot be performed by another employee.
(3) An employee must be remunerated—
(a) for a meal interval in which the employee is required to work or is required to be available for
work; and
(b) for any portion of a meal interval that is in excess of 75 minutes, unless the employee lives on the
premises at which the workplace is situated.
(4) For the purposes of subsection (1), work is continuous unless it is interrupted by an interval of at
least 60 minutes.
(5) An agreement in writing may—
(a) reduce the meal interval to not less than 30 minutes;
(b) dispense with a meal interval for an employee who works fewer than six hours on a day.

Daily and weekly rest period

15. (1) An employer must allow an employee—
(a) a daily rest period of at least twelve consecutive hours between ending and recommencing work;
and
(b) a weekly rest period of at least 36 consecutive hours which, unless otherwise agreed, must
include Sunday.
(2) A daily rest period in terms of subsection (1)(a) may, by written agreement, be reduced to 10
hours for an employee—
(a) who lives on the premises at which the workplace is situated; and
(b) whose meal interval lasts for at least three hours.
(3) Despite subsection (1)(b), an agreement in writing may provide for—
(a) a rest period of at least 60 consecutive hours every two weeks; or
(b) an employee’s weekly rest period to be reduced by up to eight hours in any week if the rest
period in the following week is extended equivalently.

Pay for work on Sundays

16. (1) An employer must pay an employee who works on a Sunday at double the employee’s wage
for each hour worked, unless the employee ordinarily works on a Sunday, in which case the
employer must pay the employee at one and one-half times the employee’s wage for each hour
worked.
(2) If an employee works less than the employee’s ordinary shift on a Sunday and the payment that
the employee is entitled to in terms of subsection (1) is less than the employee’s ordinary daily
wage, the employer must pay the employee the employee’s ordinary daily wage.
(3) Despite subsections (1) and (2), an agreement may permit an employer to grant an employee
who works on a Sunday paid time off equivalent to the difference in value between the pay received
by the employee for working on the Sunday and the pay that the employee is entitled to in terms of
subsections (1) and (2).

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(4) Any time worked on a Sunday by an employee who does not ordinarily work on a Sunday is not
taken into account in calculating an employee’s ordinary hours of work in terms of section 9(1) and
(2), but is taken into account in calculating the overtime worked by the employee in terms of section
10(1)(b).
(5) If a shift worked by an employee falls on a Sunday and another day, the whole shift is deemed to
have been worked on the Sunday, unless the greater portion of the shift was worked on the other
day, in which case the whole shift is deemed to have been worked on the other day.
(6) (a) An employer must grant paid time off in terms of subsection (3) within one month of the
employee becoming entitled to it.
(b) An agreement in writing may increase the period contemplated by paragraph (a) to 12 months.

Night work
17. (1) In this section, ‘‘night work’’ means work performed after 18:00 and before 06:00 the next
day.
(2) An employer may only require or permit an employee to perform night work, if so agreed, and
if—
(a) the employee is compensated by the payment of an allowance, which may be a shift allowance,
or by a reduction of working hours; and
(b) transportation is available between the employee’s place of residence and the workplace at the
commencement and conclusion of the employee’s shift.
(3) An employer who requires an employee to perform work on a regular basis after 23:00 and
before 06:00 the next day must—
(a) inform the employee in writing, or orally if the employee is not able to understand a written
communication, in a language that the employee understands—
(i) of any health and safety hazards associated with the work that the employee is required to
perform; and
(ii) of the employee’s right to undergo a medical examination in terms of paragraph (b);
(b) at the request of the employee, enable the employee to undergo a medical examination, for the
account of the employer, concerning those hazards—
(i) before the employee starts, or within a reasonable period of the employee starting, such work;
and
(ii) at appropriate intervals while the employee continues to perform such work; and
(c) transfer the employee to suitable day work within a reasonable time if—
(i) the employee suffers from a health condition associated with the performance of night work; and
(ii) it is practicable for the employer to do so.
(4) For the purposes of subsection (3), an employee works on a regular basis if the employee works
for a period of longer than one hour after 23:00 and before 06:00 at least five times per month or 50
times per year.
(5) The Minister may, after consulting the Commission, make regulations relating to the conduct of
medical examinations for employees who perform night work.

Public holidays
18. (1) An employer may not require an employee to work on a public holiday except in accordance
with an agreement.
(2) If a public holiday falls on a day on which an employee would ordinarily work, an employer must
pay—
(a) an employee who does not work on the public holiday, at least the wage that the employee
would ordinarily have received for work on that day;
(b) an employee who does work on the public holiday—
(i) at least double the amount referred to in paragraph (a); or
(ii) if it is greater, the amount referred to in paragraph (a) plus the amount earned by the employee

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for the time worked on that day.

(3) If an employee works on a public holiday on which the employee would not ordinarily work, the
employer must pay that employee an amount equal to—
(a) the employee’s ordinary daily wage; plus
(b) the amount earned by the employee for the work performed that day, whether calculated by
reference to time worked or any other method.
(4) An employer must pay an employee for a public holiday on the employee’s usual pay day.
(5) If a shift worked by an employee falls on a public holiday and another day, the whole shift is
deemed to have been worked on the public holiday, but if the greater portion of the shift was
worked on the other day, the whole shift is deemed to have been worked on the other day.

4. Section 90 protects the confidentiality of any medical examination conducted in terms of this Act.
5. In terms of section 2(2) of the Public Holidays Act, 1994 (Act No. 36 of 1994), a public holiday is
exchangeable for any other day which is fixed by agreement or agreed to between the employer and
the employee.

CHAPTER THREE
Leave

Application of this Chapter

19. (1) This Chapter does not apply to an employee who works less than 24 hours a month for an
employer.
(2) Unless an agreement provides otherwise, this Chapter does not apply to leave granted to an
employee in excess of the employee’s entitlement under this Chapter.

Annual leave
20. (1) In this Chapter, ‘‘annual leave cycle’’ means the period of 12 months’ employment with the
same employer immediately following—
(a) an employee’s commencement of employment; or
(b) the completion of that employee’s prior leave cycle.
(2) An employer must grant an employee at least—
(a) 21 consecutive days’ annual leave on full remuneration in respect of each annual leave cycle; or
(b) by agreement, one day of annual leave on full remuneration for every 17 days on which the
employee worked or was entitled to be paid;
(c) by agreement, one hour of annual leave on full remuneration for every 17 hours on which the
employee worked or was entitled to be paid.
(3) An employee is entitled to take leave accumulated in an annual leave cycle in terms of subsection
(2) on consecutive days.
(4) An employer must grant annual leave not later than six months after the end of the annual leave
cycle.
(5)An employer may not require or permit an employee to take annual leave during—
(a) any other period of leave to which the employee is entitled in terms of this Chapter; or
(b) any period of notice of termination of employment.
(6) Despite subsection (5), an employer must permit an employee, at the employee’s written
request, to take leave during a period of unpaid leave.
(7)An employer may reduce an employee’s entitlement to annual leave by the number of days of
occasional leave on full remuneration granted to the employee at the employee’s request in that
leave cycle.
(8) An employer must grant an employee an additional day of paid leave if a public holiday falls on a
day during an employee’s annual leave on which the employee would ordinarily have worked.
(9) An employer may not require or permit an employee to work for the employer during any period

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of annual leave.
(10) Annual leave must be taken—
(a) in accordance with an agreement between the employer and employee; or
(b) if there is no agreement in terms of paragraph (a), at a time determined by the employer in
accordance with this section.
(11) An employer may not pay an employee instead of granting paid leave in terms of this section
except—
(a) on termination of employment; and
(b) in accordance with section 40(b) and (c).

Pay for annual leave

21. (1) An employer must pay an employee leave pay at least equivalent to the remuneration that
the employee would have received for working for a period equal to the period of annual leave,
calculated—
(a) at the employee’s rate of remuneration immediately before the beginning of the period of
annual leave; and
(b) in accordance with section 35.
(2) An employer must pay an employee leave pay—
(a) before the beginning of the period of leave; or
(b) by agreement, on the employee’s usual pay day.

Sick leave
22. (1) In this Chapter, ‘‘sick leave cycle’’ means the period of 36 months’ employment with the
same employer immediately following—
(a) an employee’s commencement of employment; or
(b) the completion of that employee’s prior sick leave cycle.
(2) During every sick leave cycle, an employee is entitled to an amount of paid sick leave equal to the
number of days the employee would normally work during a period of six weeks.
(3) Despite subsection (2), during the first six months of employment, an employee is entitled to one
day’s paid sick leave for every 26 days worked.
(4) During an employee’s first sick leave cycle, an employer may reduce the employee’s entitlement
to sick leave in terms of subsection (2) by the number of days’ sick leave taken in terms of subsection
(3).
(5) Subject to section 23, an employer must pay an employee for a day’s sick leave—
(a) the wage the employee would ordinarily have received for work on that day;
and
(b) on the employee’s usual pay day.
(6) An agreement may reduce the pay to which an employee is entitled in respect of any day’s
absence in terms of this section if—
(a) the number of days of paid sick leave is increased at least commensurately with any reduction in
the daily amount of sick pay; and
(b) the employee’s entitlement to pay—
(i) for any day’s sick leave is at least 75 per cent of the wage payable to the employee for the
ordinary hours the employee would have worked on that day; and
(ii) for sick leave over the sick leave cycle is at least equivalent to the employee’s entitlement in
terms of subsection (2).

Proof of incapacity
23. (1) An employer is not required to pay an employee in terms of section 22 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 and, on request by the employer, does not produce a medical certificate

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stating that the employee was unable to work for the duration of the employee’s absence on
account of sickness or injury.
(2) The medical certificate must be issued and signed by a medical practitioner or any other person
who is certified to diagnose and treat patients and who is registered with a professional council
established by an Act of Parliament.
(3) If it is not reasonably practicable for an employee who lives on the employer’s premises to obtain
a medical certificate, the employer may not withhold payment in terms of subsection (1) unless the
employer provides reasonable assistance to the employee to obtain the certificate.

Application to occupational accidents or diseases

24. Sections 22 and 23 do not apply to an inability to work caused by an accident or occupational
disease as defined in the Compensation for Occupational Injuries and Diseases Act, 1993 (Act No.
130 of 1993), or the Occupational Diseases in Mines and Works Act, 1973 (Act No. 78 of 1973),
except in respect of any period during which no compensation is payable in terms of those Acts.

Maternity leave
25. (1) An employee is entitled to at least four consecutive months’ maternity leave.
(2) An employee may commence maternity leave—
(a) at any time from four weeks before the expected date of birth, unless otherwise agreed; or
(b) on a date from which a medical practitioner or a midwife certifies that it is necessary for the
employee’s health or that of her unborn child.
(3) No employee may work for six weeks after the birth of her child, unless a medical practitioner or
midwife certifies that she is fit to do so.
(4) An employee who has a miscarriage during the third trimester of pregnancy or bears a stillborn
child is entitled to maternity leave for six weeks after the miscarriage or stillbirth, whether or not the
employee had commenced maternity leave at the time of the miscarriage or stillbirth.
(5) An employee must notify an employer in writing, unless the employee is unable to do so, of the
date on which the employee intends to—
(a) commence maternity leave; and
(b) return to work after maternity leave.
(6) Notification in terms of subsection (5) must be given—
(a) at least four weeks before the employee intends to commence maternity leave;
or
(b) if it is not reasonably practicable to do so, as soon as is reasonably practicable.
(7) The payment of maternity benefits will be determined by the Minister subject to the provisions
of the Unemployment Insurance Act, 1966 (Act No. 30 of 1966).7

Protection of employees before and after birth of a child

26. (1) No employer may require or permit a pregnant employee or an employee who is nursing her
child to perform work that is hazardous to her health or the health of her child.8
(2) During an employee’s pregnancy, and for a period of six months after the birth of her child, her
employer must offer her suitable, alternative employment on terms and conditions that are no less
favourable than her ordinary terms and conditions of employment, if—
(a) the employee is required to perform night work, as defined in section 17(1) or her work poses a
danger to her health or safety or that of her child; and
(b) it is practicable for the employer to do so.

Family responsibility leave

27. (1) This section applies to an employee—
(a) who has been in employment with an employer for longer than four months;
and

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(b) who works for at least four days a week for that employer.
(2) An employer must grant an employee, during each annual leave cycle, at the request of the
employee, three days’ paid leave, which the employee is entitled to take—
(a) when the employee’s child is born;
(b) when the employee’s child is sick; or

6. In terms of section 187(1)(e) of the Labour Relations Act, 1995, the dismissal of an employee on
account of her pregnancy, intended pregnancy, or any reason related to her pregnancy, is
automatically unfair. The definition of dismissal in section 186 of the Labour Relations Act, 1995,
includes the refusal to allow an employee to resume work after she has taken maternity leave in
terms of any law, collective agreement or her contract.
7. Sections 34 and 37 of the Unemployment Insurance Act, 1966 (Act No. 30 of 1966), provide for
the payment of maternity leave. Legislative amendments will be proposed to Cabinet to improve
these benefits and to provide that the payment to an employee of maternity benefits does not
adversely affect her right to unemployment benefits.
8. The Minister must issue a Code of Good Practice on the Protection of Employees during Pregnancy
and after the Birth of a Child in terms of section 87(1)(b).

(c) in the event of the death of—

(i) the employee’s spouse or life partner; or
(ii) the employee’s parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.
(3) Subject to subsection (5), an employer must pay an employee for a day’s family responsibility
leave—
(a) the wage the employee would ordinarily have received for work on that day;
and
(b) on the employee’s usual pay day.
(4)An employee may take family responsibility leave in respect of the whole or a part of a day.
(5) Before paying an employee for leave in terms of this section, an employer may require
reasonable proof of an event contemplated in subsection (1) for which the leave was required.
(6) An employee’s unused entitlement to leave in terms of this section lapses at the end of the
annual leave cycle in which it accrues.
(7)A collective agreement may vary the number of days and the circumstances under which leave is
to be granted in terms of this section.

CHAPTER FIVE
Termination of employment

Application of this Chapter

36. This Chapter does not apply to an employee who works less than 24 hours in a month for an
employer.

Notice of termination of employment

37. (1) Subject to section 38, a contract of employment terminable at the instance of a party to the
contract may be terminated only on notice of not less than—
(a) one week, if the employee has been employed for four weeks or less;
(b) two weeks, if the employee has been employed for more than four weeks but not more than one
year;
(c) four weeks, if the employee—
(i) has been employed for one year or more; or
(ii) is a farm worker or domestic worker who has been employed for more than four weeks.

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(2) A collective agreement may permit a notice period shorter than that required by subsection (1).
(3) No agreement may require or permit an employee to give a period of notice longer than that
required of the employer.
(4) (a) Notice of termination of a contract of employment must be given in writing, except when it is
given by an illiterate employee.
(b) If an employee who receives notice of termination is not able to understand it, the notice must
be explained orally by, or on behalf of, the employer to the employee in an official language the
employee reasonably understands.
(5) Notice of termination of a contract of employment given by an employer must—
(a) not be given during any period of leave to which the employee is entitled in terms of Chapter
Three; and
(b) not run concurrently with any period of leave to which the employee is entitled in terms of
Chapter Three, except sick leave.
(6) Nothing in this section affects the right—
(a) of a dismissed employee to dispute the lawfulness or fairness of the dismissal in terms of Chapter
VIII of the Labour Relations Act, 1995, or any other law;
and
(b) of an employer or an employee to terminate a contract of employment without notice for any
cause recognised by law.

Payment instead of notice

38. (1) Instead of giving an employee notice in terms of section 37, an employer may pay the
employee the remuneration the employee would have received, calculated in accordance with
section 35, if the employee had worked during the notice period.
(2) If an employee gives notice of termination of employment, and the employer waives any part of
the notice, the employer must pay the remuneration referred to in subsection (1), unless the
employer and employee agree otherwise.
Employees in accommodation provided by employers
39. (1) If the employer of an employee who resides in accommodation that is situated on the
premises of the employer or that is supplied by the employer terminates the contract of
employment of that employee—
(a) before the date on which the employer was entitled to do so in terms of section
37; or
(b) in terms of section 38, the employer is required to provide the employee with accommodation
for a period of one month, or if it is a longer period, until the contract of employment could lawfully
have been terminated.
(2) If an employee elects to remain in accommodation in terms of subsection (1) after the employer
has terminated the employee’s contract of employment in terms of section 38, the remuneration
that the employer is required to pay in terms of section 38 is reduced by that portion of the
remuneration that represents the agreed value of the accommodation for the period that the
employee remains in the accommodation.

Payments on termination
40. On termination of employment, an employer must pay an employee—
(a) for any paid time off that the employee is entitled to in terms of section 10(3) or 16(3) that the
employee has not taken;
(b) remuneration calculated in accordance with section 21(1) for any period of annual leave due in
terms of section 20(2) that the employee has not taken;
and
(c) if the employee has been in employment longer than four months, in respect of the employee’s
annual leave entitlement during an incomplete annual leave cycle as defined in section 20(1)—

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(i) one day’s remuneration in respect of every 17 days on which the employee worked or was
entitled to be paid; or
(ii) remuneration calculated on any basis that is at least as favourable to the employee as that
calculated in terms of subparagraph (i).

Severance pay
41. (1) For the purposes of this section, ‘‘operational requirements’’ means requirements based on
the economic, technological, structural or similar needs of an employer.
(2) An employer must pay an employee who is dismissed for reasons based on the employer’s
operational requirements severance pay equal to at least one week’s remuneration for each
completed year of continuous service with that employer, calculated in accordance with section 35.
(3) The Minister may vary the amount of severance pay in terms of subsection (2) by notice in the
Gazette. This variation may only be done after consulting NEDLAC and the Public Service Co-
ordinating Bargaining Council established under Schedule 1 of the Labour Relations Act, 1995.
(4) An employee who unreasonably refuses to accept the employer’s offer of alternative
employment with that employer or any other employer, is not entitled to severance pay in terms of
subsection (2).
(5) The payment of severance pay in compliance with this section does not affect an employee’s
right to any other amount payable according to law.
(6) If there is a dispute only about the entitlement to severance pay in terms of this section, the
employee may refer the dispute in writing to—
(a) a council, if the parties to the dispute fall within the registered scope of that council; or
(b) the CCMA, if no council has jurisdiction.
(7) The employee who refers the dispute to the council or the CCMA must satisfy it that a copy of the
referral has been served on all the other parties to the dispute.
(8) The council or the CCMA must attempt to resolve the dispute through conciliation.
(9) If the dispute remains unresolved, the employee may refer it to arbitration.
(10) If the Labour Court is adjudicating a dispute about a dismissal based on the employer’s
operational requirements, the Court may inquire into and determine the amount of any severance
pay to which the dismissed employee may be entitled and the Court may make an order directing
the employer to pay that amount.

Certificate of service
42. On termination of employment an employee is entitled to a certificate of service stating—
(a) the employee’s full name;
(b) the name and address of the employer;
(c) a description of any council or sectoral employment standard by which the employer’s business is
covered;
(d) the date of commencement and date of termination of employment;
(e) the title of the job or a brief description of the work for which the employee was employed at
date of termination;
(f) the remuneration at date of termination; and
(g) if the employee so requests, the reason for termination of employment.

END OF PAPER

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