Exam (elaborations)
LLW2601 EXAM PACK 2023
- Course
- Individual Labour Law
- Institution
- University Of South Africa
LLW2601 EXAM PACK 2023
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LLW2601EXAM
PACK
2023
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LLW2601 EXAM
MAY/JUNE 2022
1.2. Identify five (5) forms of dismissal that fall within the meaning of dismissal in
section 186(1) Labour Relations Act 66 of 1995.
(5)
1.3. Section 13 of the Constitution of the Republic of South Africa, 1996 prohibits
slavery, forced labour and child labour. Lola, a 12-year-old primary school pupil
was asked to present a speech on the prohibition of child labour in South Africa.
Advice on this matter.
(10)
[TOTAL FOR QUESTION 1: 20 MARKS]
QUESTION 2
2.1. Mokhatšana is a 28-year-old Black African female. She is employed by MDMA,
where she is a Senior Audit Manager. Mokhatšana has 6 years’ work
experience and has spent all those years as an employee of MDMA. She
manages a team of 10 auditors whose work involves auditing the financial
records of the firm’s banking clients. In March 2021, Mokhatšana discovered
that her White female colleague, Dominica Dunbar, who is also 28 years old,
was receiving 25% more monthly remuneration than she did. Mokhatšana
sought to resolve the matter internally, however, her attempts proved fruitless,
and she then referred the matter to the CCMA for conciliation. At the CCMA,
the parties failed to reach a mutually favourable solution and the matter was
then referred to the Labour Court.
In her court papers, Mokhatšana alleges that she has been unfairly
discriminated against on the listed ground of race. She avers that she is a victim
of unfair discrimination because she, a black employee, is being paid 25% less
money for doing the same work as Dominica, a white employee. Mokhatšana
further avers that the work that she is doing at MDMA is substantially the same
as the work that her colleague is doing, because Dominica Dunbar is also a
Senior Audit Partner. Dominica also oversees a team of 10 auditors on the
insurance side of the firm’s audit work. Like Mokhatšana, she has 6 years’ work
experience and has spent her whole career at MDMA. According to an expert
witness called to testify by Mokhatšana before the Labour Court, the difference
between insurance and banking audits is superficial at best.
Nevertheless, the Labour Court found that Mokhatšana had “failed to establish
a prima facie case of unfair discrimination on the listed ground of race” and her
claim was dismissed. Mokhatšana has now lodged an appeal with the Labour
Appeal Court.
With reference to the relevant legal authorities (applicable case law, legislation),
advice Mokhatšana on her prospects of success. Your answer must include
the following:
➢ The legal basis for Mokhatšana’s claim.
➢ The requirements for proving “work that is the same or substantially the
same”.
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LLW2601 EXAM
MAY/JUNE 2022
➢ An explanation of whether a claimant relying on a ground such as race
is required to establish a prima facie case of unfair discrimination.
➢ Comment on Mokhatšana’s prospects of success with her claim.
(18)
2.2. List the two valid grounds for dismissal referred to as ‘no-fault’ dismissals.
(2)
[TOTAL FOR QUESTION 2: 20 MARKS]
QUESTION 3
Sean is employed as a business analyst at a financial services company (the
employer). He applies for a promotion to senior business analyst with the employer.
However, he is not successful in his application, and the position is given to Kelly
instead. Sean is dissatisfied with the decision not to promote him. He wishes to refer
an unfair labour practice dispute.
3.1. Explain what factors must be considered in determining whether an employer
acted fairly in declining an employee’s application for promotion.
(5)
3.2. Discuss the difference between an ‘unfair labour practice’ in terms of the Labour
Relations Act 66 of 1995, and the ‘right to fair labour practices’ in terms of the
Constitution of the Republic of South Africa, 1996.
(5)
3.3. Assume that Sean believes that the employer chose to promote Kelly over him
because she is a black female. He alleges that the employer discriminated
against him because he is a white male. Answer the following questions:
3.3.1. Set out the dispute resolution procedure that Sean should follow in order to
refer an unfair discrimination dispute against the employer. (4)
3.3.2. Explain what potential defence the employer may use for his choice to promote
Kelly under these circumstances.
(2)
3.3.3. Explain whether the employer would have been justified in its decision if the
employer’s policy stated that non-members of the designated groups will never
be promoted.
(4)
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LLW2601 EXAM
MAY/JUNE 2022
[TOTAL FOR QUESTION 3: 20 MARKS]
TOTAL: 60 MARKS
©
UNISA 2022
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