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MRL3702 EXAM | Questions And Answers Latest {} A+ Graded | 100% Verified
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MRL3702 EXAM | Questions And Answers Latest {2024- 2025} A+ Graded | 100%Verified
TESTS DEVELOPED BY THE COURTS TO DETERMINE WHETHER A PERSON IS AN EMPLOYEE OR AN
INDEPENDENT CONTRACTOR - The courts have given guidelines to distinguish between employees and
independent
contractors, and developed three tests in this regard. These are:
• the control test,
• the organisation test, and
• the dominant impression test.10
DETERMINING THE REASONABLENESS OF A RESTRAINT OF TRADE AGREEMENT - • Is there an interest
deserving of protection at the termination of the agreement?
• Is that interest being prejudiced?
• If so, how does that interest weigh up against the interests of the other party?
• Is there another facet of public policy apart from the relationship between the parties which requires
that the restraint should either be enforced or
disallowed?
• Is the restraint wider than necessary to protect the protectable interest?
THE FIVE CORE TERMS PROVIDED FOR IN THE BCEA WHICH CANNOT BE VARIED AT ALL - 1. maximum
working hours
2. provisions relating to night work
3. not less than 2 weeks annual leave
4. 4 months maternity leave
5. provisions relating to sick leave
MATERNITY LEAVE - If an employer refuses to allow an employee to resume work after having taken
maternity leave, this refusal (termination) will qualify as a dismissal.
In terms of the BCEA, an employee is entitled to four consecutive months' (unpaid) maternity leave. This
specific reference to absence during maternity in the definition of dismissal is an indication of the strong
protection afforded by the LRA to female employees whose job security is jeopardised during maternity
leave.
, THE REFUSAL OR FAILURE BY AN EMPLOYER TO RENEW A FIXED-TERM CONTRACT - If an employee
reasonably expects the employer to renew a fixed-term contract of employment on the same or similar
terms, but the employer offers to renew it on less favourable terms, or does not renew it at all, this will
constitute a dismissal.
The main question in such a situation will revolve around whether the employer's conduct created a
reasonable expectation that the fixed-term contract would be renewed. Examples of conduct that would
create such a reasonable expectation are previous renewals, or assurances of renewal.
REQUIREMENTS TO SUCCEED WITH A CLAIM OF CONSTRUCTIVE DISMISSAL - The court made it clear
that the following three elements must be present to succeed with a claim for constructive dismissal:
• the employee must show that she/he has resigned,
• the employee must show that the reason for the resignation was that continued employment became
intolerable, and
• the employee must show that it was the employer's conduct that created the intolerable
circumstances.
WHO ARE DESIGNATED EMPLOYERS IN TERMS OF THE EEA - • Larger enterprises with 50 or more
employees
• Employers who employ fewer than 50 employees, but have an annual turnover specified in Schedule 4
of the EEA
• Municipalities
• Organs of state such as the Airports Company of South Africa (ACSA), the Central Energy Fund, the
Development Bank of South Africa, Eskom, the SABC, the SA Post Office Limited and Telkom SA Limited
(excluding the National Defence Force, the National Intelligence Agency and the Secret Service)
• Employers that are designated as such in terms of a collective agreement
• The National Defence Force and the State Security Agency are explicitly excluded from the definition
of designated employers
NAME FIVE DIFFERENT "UNFAIR LABOUR PRACTICES" LISTED IN SECTION 186(2) OF THE LRA - 'An "unfair
labour practice" means any unfair act or omission that arises between an employer and an employee
involving —
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