Exam (elaborations)
MRL3702 EXAM PACK 2024
- Course
- MRL3702 (MRL3702)
- Institution
- University Of South Africa
MRL3702 EXAM PACK 2024 QUESTIONS AND ANSWERS
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lOMoAR cPSD| 24668432MRL3702 EXAM
PACK 2024
QUESTIONS AND ANSWERS
[School]
[Course title]
, MRL3702 EXAM PACK 2024
LABOUR LAW QUESTIONS
Question 1
What are the essential elements of an employment contract?
An employment contract is
- a voluntary agreement
- between two parties
- in terms of which one party (the employee) places his labour potential at the
disposal and under the control of (works for) the other party (the employer)
- in exchange for some form of remuneration which may include money and/or
payments in kind.
Question 2:
What are the requirements for the conclusion of a valid employment
contract?
- The parties must reach consensus
- The parties must have the necessary capacity to act
- It must be possible for the parties to meet their obligations
- The content and conclusion of the contract must be lawful
- Certain formalities must be complied with
- (Ascertainable terms)
Question 3:
3.1 What are an employer’s operational requirements?
S213 LRA defines “operational requirements” as the
1. economic,
2. technological,
3. structural, or
4. similar needs of the employer
3.2 What are similar needs?
1. the employee's actions or presence has a negative effect on the business,
2. the employee's conduct has led to a breakdown of the trust relationship,
3. the enterprise's business requirements are such that changes must be made to
the employee's terms and conditions of employment
Question 4:
, Discuss the procedural requirements for a fair dismissal based on poor work
performance of an employee who is on probation.
If an employee is dismissed during the probationary period, the employee should
- be given an opportunity to respond to the allegations, and
- be allowed to be assisted by a union representative or co-employee.
Question 5:
Discuss constructive dismissal as a form of dismissal in terms of S186(d) of
the LRA.
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: 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. Court held – contructive dismissal – there dismissal was unfair.
• Vermeulen: 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.
Question 6:
Discuss the substantive fairness requirements of an employee’s dismissal
based on misconduct.
1. Did the employee contravene a rule or standard regarding conduct in, or of
relevance to, the workplace?
It must first be established whether or not the rule which the employee is alleged
to have contravened existed. This is a factual question and one must look at the
circumstances surrounding the matter to determine whether or not the rule
existed. If the facts indicate that the rule did exist, it must then be determined
whether or not the employee contravened this rule.
, The most important source of rules of conduct in the workplace is the disciplinary
code. If there is a disciplinary code for the workplace and if it does not contain the
particular rule, this may be an indication that the rule does not exist in the
workplace. There are a number of other sources which may contain the rule, for
example, the common law. The employee's common-law duties include a duty to
act in good faith
The employer can act against the employee if the latter is guilty of misconduct in
the workplace and during working hours. However, item 7(a) provides that the
employer can also act against the employee for misconduct which took place
outside the workplace and/or after working hours.
2. If so, was the rule valid and reasonable?
This is determined with reference to the needs of the workplace and business.
Whether the rule is valid or reasonable is a factual question. Generally, a rule will
be valid or reasonable if it is lawful and can be justified with reference to the needs
and circumstances of the business. There are a number of factors which may
determine whether or not a rule is justified, for example:
• the nature of the employer’s business,
• the circumstances under which the business operate,
• the type of work which an employee does,
• whether the rule was included in a disciplinary code that is contained in a collective
agreement between the employer and a trade union,
• the employer’s willingness in the past to enforce it.
3. Was the employee aware of the rule, or could he reasonably be expected to
have been aware of the rule?
An employee should only be punished for actions which he knew were unacceptable
and he must have known that a transgression of this rule may lead to dismissal.
Some types of misconduct are so well known that it is not necessary to advise an
employee of such rule, for example, rules that have their origin in the common law
(theft).
4. Was the rule consistently applied by the employer?
• Historical inconsistency occurs where the employer has in the past not proceeded
against employees when they have contravened a certain rule, but then suddenly
decides to proceed against an employee for contravening that rule. An employer
cannot enforce a rule which has previously been ignored, as the conduct is
inconsistent with past conduct.
If a rule is to be enforced in the future, the employer must inform the employees
before, and the employer must ensure that all employees will know the penalty for
breaking the rule. He could for example draw up a document or notice or inform
the union.
Knowledge may be ensured through meetings, written briefs, notices on notice
boards, through induction programmes for new employees, etc.
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