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What general conditions regarding the employment of foreign nationals does the Employment
Services Act set out? 3
The ESA defines a ‘foreign national’ as “an individual who is not a South African citizen or does not
have a permanent residence permit issued in terms of the Immigration Act.”
They may be employed but their employment must:
Comply with and give effect to the right to fair labour practices contained in section 23 of the
Constitution;
Not have a negative impact on existing labour standards or the rights and expectations of
South African workers; and
Must promote the training of South African citizens and permanent residents.
Explain the purpose of the Employment Tax Incentive Act (ETIA). 2
The purpose of the Act is to provide for a government-wage subsidy to employers who
employ young and inexperienced workers.
The Act provides for subsidies aimed at encouraging private sector employers to employ
young people aged between the ages of 18 and 29.
The Act aims to support employment growth by focussing on labour market activation,
especially for the youth.
The EEA specifically excludes certain categories of workers from its application. List the 5 categories
of workers who are excluded from the application of the EEA. 5
The National Defence Force;
The National Intelligence Agency;
The Secret Service;
The National Academy of Intelligence; and
Directors and staff of Comsec.
Will X be able to enforce a contract he concluded with Z, to murder Z's business rival B? Substantiate
your answer. 3
X will be an independent contractor, as he was contracted to perform a specified task /
produce a specific result.
X will not be able to enforce a contract in terms of the LRA, but is entitled to protection
under the Constitution, as the Constitution is broad and extends to everyone.
Thus, even a murderer, has a right to fair labour practices in terms of section 23 of the
Constitution as a result of the employment relationship.
This relationship exists despite the illegality of the type of work performed.
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What number of months/weeks does the BCEA prescribe for maternity leave and sick leave? 2
Maternity Leave
o An employee is entitled to four consecutive month’s maternity leave.
o An employee may not work for six weeks after the birth of her child.
o If an employee miscarries in the third trimester of the pregnancy or has a still born
child, she is entitled to six weeks’ leave after the miscarriage or still birth.
Sick Leave
o Six weeks’ paid sick leave in every three-year cycle worked
List the different ways in which contractual terms and conditions of employment can be changed. 5
By agreement between the employer and the employee or in line with the method
prescribed in the contract of employment;
By means of a collective agreement between the employer and a trade union/s;
By operation of law, for example, the BCEA; and
Through a sectoral determination issued by the MoL.
Write a short note on the importance of the distinction between an employee and an independent
contractor within the labour law context. 4
The primary aim of the LRA is to promote sound relations between employers and
employees in the workplace.
Workers who are not employees fall outside the scope of the LRA and are, amongst others,
not entitled to protection against unfair dismissal.
For this reason, it is important to be able to draw a distinction between employees and other
workers who do not qualify as employees, so called ‘independent contractors’.
People not covered by labour laws will not be protected and will have to find other laws to
protect themselves.
Write a short note on the difference between direct and indirect discrimination. 4
Direct discrimination
o It occurs if someone is clearly treated differently because of a certain characteristic,
for example, race or gender.
o An example of direct discrimination is an employee being paid less simply because
she / he is disabled, of a different religion than the employer, or divorced.
Indirect discrimination
o Found when criteria that appear to be neutral, negatively affect a certain group
disproportionately, for example, gay or Hindu people or women.
o Such discrimination, in contrast with direct discrimination, is often disguised and
hard to detect.
o An example of indirect discrimination would be a requirement that candidates must
have a deep bass voice. In such instance more men than women will qualify. Unless
this criterion can be justified by the requirements of the job, it will amount to
indirect discrimination.
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Write a short note on the factors which must be considered to determine if dismissal is an
appropriate sanction in cases of misconduct. 6
Dismissal should be seen as a matter of last resort.
Normally, dismissal will not be appropriate in the case of a first offence, unless the
misconduct is serious and of such gravity that it renders the employment relationship
intolerable.
The appropriateness of dismissal as a penalty will depend on the employee’s circumstances,
including:
o Length of service;
o Previous disciplinary record;
o Personal circumstances;
o The nature of the job; and
o The circumstances of the infringement itself.
Discuss the difference between precautionary and punitive suspensions. 5
Precautionary suspensions
o PURPOSE
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.
o PAYMENT
Suspension, as a rule, is with pay unless the employee agrees to suspension
without pay, or a law or collective agreement authorises unpaid suspension.
o FAIRNESS
An employee should not be suspended unless:
There is a prima facie reason to believe that the employee has
committed serious misconduct; and
There is some objectively justifiable reason for excluding the
employee from the workplace.
o Suspensions must be based on substantively valid reasons and fair procedures.
Punitive suspensions
o Fair suspension without pay could be an alternative to a sanction of dismissal in an
attempt to correct the behaviour of the employee.
o It can be seen as a form of progressive discipline where appropriate.
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