First examiner: Mr D RAMMILA
Second examiner: Ms MM MULAUDZI
This paper consists of 11 pages.
Instructions:
INSTRUCTIONS FOR A TAKE-HOME EXAM ON MYEXAMS
PLEASE READ THE FOLLOWING INSTRUCTIONS CAREFULLY BEFORE ANSWERING THE
EXAMINATION QUESTIONS.
,QUESTION 1
Ms. Eastwood was employed as an administrative assistant at Horizon Enterprises.
She claims that her supervisor, Mr. Oldman, subjected her to unwelcome conduct on
multiple occasions throughout the year 2023 which made her feel uncomfortable. The
conduct included remarks about the shape of her body, her “sexiness” and other
unsolicited romantic advances. The inappropriate behaviour persisted, and in
September 2023, she reached out to Ms. Daley, the company’s employee relations
specialist, to report Mr. Oldman’s conduct. Ms. Daley acts on behalf of Horizon
Enterprises over all employee relations matters. Despite her report, Ms. Daley made
no attempt to address her complaints. Instead, Ms. Daley told Ms. Eastwood that she
was overreacting, and that Mr. Oldman’s behaviour was just “boys being boys”. Feeling
very uncomfortable and unable to continue working with Mr. Oldman, Ms. Eastwood
tendered her resignation in November 2023.
Ms. Eastwood now seeks legal advice FROM YOU on how to proceed in light of these
events.
With reference to legislation and case law, analyse Ms. Eastwood’s legal
situation and advise on any possible remedy she may have against her former
employer, Horizon Enterprises.
(
20) NB: You must apply the principles to the facts. You need NOT discuss
constructive dismissal.
YOUR ANSWER MUST NOT EXCEED 1.5 PAGES.
[TOTAL FOR QUESTION 1: 20 MARKS]
QUESTION 2
South African labour law protects people who qualify as ‘employees’ as defined in the
Labour Relations Act 66 of 1995. Any other person who performs work for, or on behalf
of, another but is not an employee is an independent contractor.
Define the concept of ‘employee’ and explain the differences between an
employee and an independent contractor.
(12)
, YOUR ANSWER MUST NOT EXCEED 1 PAGE.
[TOTAL FOR QUESTION 2: 12 MARKS]
QUESTION 3
Sello is a database developer at Tech Innovations. His job is to update and maintain
(including troubleshooting) Tech Innovations’ software development system. His
contract states that he is an “independent contractor”. The terms of his contract with
Tech Innovations state that Sello will be responsible for his own tax obligations, will not
receive employee benefits like Unemployment Insurance Fund (UIF) insurance
contributions or paid leave, and is expected to use his own tools and resources to
complete his projects.
In practice, Tech Innovations sets Sello’s working hours and requires him to work from
the company’s Midrand office. In addition, the company has also provided Sello with
the laptop he currently uses to do the work. Sello can also not work for other companies
and is assigned specific tasks as part of ongoing projects in addition to his general
duties to update and maintain the company’s software development system.
Furthermore, Tech Innovations also subjects Sello to the same supervisory and
performance management processes as other employees in the company. Sello’s work
is essential to the proper functioning of the entire Tech Innovations software
development ecosystem.
Sello is paid weekly remuneration that amounts to an annual sum total above the Basic
Conditions of Employment Act 75 of 1997 earnings threshold as determined by the
Minister of Employment and Labour.
3.1 With reference to the applicable legislation (including relevant Codes of Good
Practice), identify and explain the appropriate prescribed test for assessing
whether a person in a situation such as the above is an employee or an
independent contractor.
(8)
YOUR ANSWER MUST NOT EXCEED 1 PAGE.
3.2 With reference to the test identified in your answer to Question 3.1 above,
explain whether Sello is an employee of Tech Innovations or not.
(8)
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