MRL3702 SUPPLEMENTARY PORTFOLIO MEMO - SEMESTER 1 2022 UNISA
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QUESTION 1
(a) In a maximum of one A4 page, demonstrate with reference to two court decisions h...
MRL3702
LABOUR LAW
SUPPLEMENTARY
PORTFOLIO
MEMO – 15 FEB. 2022
SEMESTER 1
2022 BIBLIOGRAPHY INCLUDED
18 PAGES
,QUESTION 1
(a) In a maximum of one A4 page, demonstrate with reference to two court
decisions how the principle of constructive dismissal works in an employment
environment. (15)
Section 186(d) of the LRA deals with constructive dismissals. 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 Case: 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. Then Court held that contructive dismissal was unfair.
• Vermeulen Case : 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.
, (b) Tiny is an employee of the Diamond Shapes (Pty) Ltd (‘DS’). DS cuts and
shapes diamond stones and sells them as wedding rings, earrings and
necklaces. DS experienced several theft incidents and the last one was in 2017.
The employer initiated investigations and the findings pointed at Tiny as the
culprit because, in all incidents no door or window was broken. DS sent Tiny the
investigation report via email with the following message - ‘based on the
information in the attached report, please be informed that you are dismissed
with immediate effect.’ With reference to the relevant legal authority, advise
whether Tiny’s dismissal can stand in the CCMA or the Labour Court and
whether there is any legal remedy for Tiny. (10)
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.
The main principle is that the employer must give the employee an opportunity to be
heard and to defend her against the allegations. If that happens in a more informal
manner, it will also constitute a fair process.
Checklist to ensure a procedurally fair dismissal
1. Did the employer conduct an investigation to determine whether there are grounds
for dismissal?
2. Did the employer notify the employee of the allegations?
3. Did the employee get reasonable time to prepare?
4. Was the employee allowed to state a case in response to the allegations?
5. Was the employee allowed the assistance of a union representative or co-
employee?
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?
7. If the employee is dismissed, did the employer remind her of any rights to refer the
matter to a bargaining council or the CCMA?
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