a) Formal equality as a form of equality based on section 9(3) & (4) of SA Constitution. (2)
s9 (3)of the Constitution states that, The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic ...
a formal equality as a form of equality based on section 93 amp 4 of sa constitution 2 ➢ s9 3of the constitution states that
the state may not unfairly discriminate directly or indirectly
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LABOUR LAW – QUESTION PAPERS FOR MAY/JUNE EXAMS
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LABOUR LAW
LABOUR LAW – QUESTION PAPERS FOR MAY/JUNE EXAMS
QUESTION PAPER
QUESTION 1
Write brief notes on the following:
a) Formal equality as a form of equality based on section 9(3) & (4) of SA Constitution.
(2)
➢ s9 (3)of the Constitution states that, The state may not unfairly discriminate
directly or indirectly against anyone on one or more grounds, including race,
gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief, culture, language or
birth;
➢ Sub-section (4) No person may unfairly discriminate directly or indirectly against
anyone on
one or more grounds in terms of subsection (3). National legislation must be
enacted to prevent or prohibit unfair discrimination.
b) Fixed-term employees as a category of non-standard employees. (3)
➢ Temporary employment services (hereafter TES) (Common called labour
brokers) and employees employed by them are temporary employees
➢ Fixed term employees Part-time employees
c) The duty of the employer to deal fairly with the employee. (4)
➢ To remunerate the employee
➢ To provide the employee with work
➢ To provide safe working conditions
➢ To deal fairly with the employee
d) Constructive dismissal as a form of dismissal in terms of the LRA (4)
➢ The employee must show he/she has resigned
➢ The employee must show that the reason for the resignation was that
continued employment became intolerable
➢ The employee must show that it was the employer’s conduct that created the
intolerable
circumstances.
e) The meaning of “same work” for purposes of “equal pay for work” (4)
➢ The Labour Court explained that the issue of equal pay for equal work was
not regulated in an Act in SA but was dealt with in Mangena & Others v Fila SA
case:
➢ Paying an employee is an employment policy or practice ito the EEA
➢ Paying an employee less than another employee for performing the same or
similar work based on a specified or an unspecified ground ito EEA constitutes
less favourable treatment. Therefore any claim for equal pay for work that is
the same or similar, falls to be determined ito the EEA.
➢ The same is valid for claims for equal pay for work of equal value. The
claimant must
establish a link between the differentiation and a specified or unspecified
ground. Once such a link is established, section 11 of the EEA then requires the
employer to show that the discrimination is not unfair.
f) The meaning of “suitably qualified” for purposes of benefitting from
affirmative action.(4) Suitably qualified means that the person has one or a
combination of the following factors:
❖ Formal qualifications
❖ Prior learning
❖ Relevant experience
,LABOUR LAW
❖ The capacity to acquire, within a reasonable time, the ability to do the job
g) The meaning of “small employer” in context of dismissal based on operational
reasons. (2)
➢ A small employer is an employer that employs fewer than 50 employees.
➢ The LRA does not make provision for a large-scale dismissal by a small
employer; therefore a small employer will retrench employees in
accordance with section 189.
,LABOUR LAW
h) Maximum working hours as provided by the BCEA (3)
➢ A maximum of 45 hours a week.
➢ If an employee works five days a week or less, he/she may not work more than 9
hrs a day.
➢ If an employee works six days or more a week, then he/she may not work more
than 8 hours a day (which include a lunch break)
i) The meaning of restraint of trade in the contract of employment. (4)
➢ A restraint-of-trade clause is normally included in employment contracts to protect
the interests of the employer against unfair competition from employees after
their employment ended.
➢ The purpose is to protect the employer’s trade secrets, goodwill and business
connections.
➢ A restraint-of-trade clause is lawful and enforceable unless it is unreasonable as to
prevent ex- employee from earning a living. Magna Alloys & Research v Ellis case.
j) Lock-out as a form of industrial action. (5)
➢ There must be a refusal to work.
➢ The refusal must be a concerted action by people employed by the same or
different employers
➢ The refusal must be for the purpose of remedying a grievance or resolving a
dispute in respect of any matter of mutual interest between an employer and
employee.
➢ A strike /lock-out must comply with the following requirements set by the Act iot be
protected.
➢ The action must comply with the definition of ‘strike’ or ‘lock-out’.
➢ It must comply with the procedural requirements ito section 64 of the LRA and
there should be no limitations ito s65 of the LRA.
QUESTION 2
a) Seane (Pty) Ltd (“Seane”) is a reputable and reliable motor vehicle dealer in
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 times continued and in June 2015, Seane
wants to dismiss (retrench) more employees and approaches you for advice.
Answer the following questions.
i) Under which category of operational reasons will the dismissal of employees in
this case fall? Motivate your answer.
(2)
The category of operational reasons for the dismissal of employees in this case
will fall under fair dismissal based on the criteria of retrenchment. Dismissal for
operational reasons is also regarded as a “no-fault” dismissal because the
termination is not as a result of the actions or fault of the employee.
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.
(2)
❖ Yes, the reason for a valid reason for dismissal based on operational
reasons of more employees would be justifiable.
, LABOUR LAW
❖ The reason for the dismissal is on operational requirements as defined in the LRA
i.e.
economical, technological, structural or similar needs; the reason is justifiable and
based on rational grounds.
iii) What do the concepts LIFO and FIFO mean for purposes of a fair dismissal based
on operational reasons?
(4)
➢ The concept LIFO for the purposes of a fair dismissal based on
operational reasons means “Last in First Out” This is considered fair in
almost all circumstances.
➢ The concept of FIFO for the purposes of a fair dismissal based on operational
reasons
means “First in First Out”.
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