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Labour Law Questions
LABOUR LAW QUESTIONS
Question 1
What are the essential elements of an employment contract?
- a voluntary agreement
- between two parties (an employer and an employee)
- in terms of which one party (the employee) places his labour potential at the
disposal and under the control of the other party (the employer)
- in exchange for some form of remuneration (which may include payment in
money and/or payment 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?
‘Operational requirements’ means requirements based on the economic,
technological, structural or similar needs of the employer.
3.2 What are similar needs?
- The employee’s actions or presence have a negative effect on the business
- The employee’s conduct has led to a breakdown of the trust relationship
- The enterprise’s business requirements are such that changes must be made
to an employee’s terms and conditions of employment, and
- Related reasons
Question 4:
Discuss the procedural requirements for a fair dismissal based on poor work
performance of an employee who is on probation.
The employer should not dismiss the probationary employee without allowing the
employee to:
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Labour Law Questions
- state a case in response
- with the help of a co-worker or union representative, if desired
- he is entitled to be told of his rights
- particularly his right to have the matter referred to the CCMA or to a council
with jurisdiction.
Question 5:
Discuss constructive dismissal as a form of dismissal in terms of S186(d) of
the LRA.
In terms of S186(1)(e), dismissal means that the employee terminated the
contract with or without notice because the employer made continued
employment intolerable. This amounts to a constructive dismissal.
To succeed with a claim of constructive dismissal, the employee must prove:
- the employee terminated the contract (he has resigned);
- the reason for the resignation was that continued employment became
intolerable;
- the intolerability was of the employer’s making;
- the employee resigned as a result of the intolerable behaviour of the employer
and
- the resignation was a last resort.
The employer can however prove the conduct was justified and therefore fair (in
the Vermeulen case it was held that not all constructive dismissals are unfair)
Question 6:
Discuss the substantive fairness requirements of an employee’s dismissal
based on misconduct.
In terms of Item 7 of the Code: Dismissal, to determine whether a dismissal for
misconduct is unfair, one must consider:
1. Whether or not the employee contravened a rule or standard
Here it must be determined first whether or not the rule or standard existed.
The most important source of these rules is a written disciplinary code or
rules of conduct, however rules can also be found in legislation, or the
common law, etc.
Once it has been established that there was a rule, the next issue to be
addressed is whether or not the employee has contravened it. In terms of
S192 of the LRA, the employer must prove that the dismissal was fair.
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