LLW_2601 Test Bank With Answers.

LLW_2601 Test Bank With Answers. What general conditions regarding the employment of foreign nationals does the Employment Services Act set out? 3 The ESA defines a ‘foreign national’ as “an individual who is not a South African citizen or does not have a permanent residence permit issued in terms of the Immigration Act.” They may be employed but their employment must:  Comply with and give effect to the right to fair labour practices contained in section 23 of the Constitution;  Not have a negative impact on existing labour standards or the rights and expectations of South African workers; and  Must promote the training of South African citizens and permanent residents. Explain the purpose of the Employment Tax Incentive Act (ETIA). 2  The purpose of the Act is to provide for a government-wage subsidy to employers who employ young and inexperienced workers.  The Act provides for subsidies aimed at encouraging private sector employers to employ young people aged between the ages of 18 and 29.  The Act aims to support employment growth by focussing on labour market activation, especially for the youth. The EEA specifically excludes certain categories of workers from its application. List the 5 categories of workers who are excluded from the application of the EEA. 5  The National Defence Force;  The National Intelligence Agency;  The Secret Service;  The National Academy of Intelligence; and  Directors and staff of Comsec. Will X be able to enforce a contract he concluded with Z, to murder Z's business rival B? Substantiate your answer. 3  X will be an independent contractor, as he was contracted to perform a specified task / produce a specific result.  X will not be able to enforce a contract in terms of the LRA, but is entitled to protection under the Constitution, as the Constitution is broad and extends to everyone. Thus, even a murderer, has a right to fair labour practices in terms of section 23 of the Constitution as a result of the employment relationship.  This relationship exists despite the illegality of the type of work performed. What number of months/weeks does the BCEA prescribe for maternity leave and sick leave? 2  Maternity Leave o An employee is entitled to four consecutive month’s maternity leave. o An employee may not work for six weeks after the birth of her child. o If an employee miscarries in the third trimester of the pregnancy or has a still born child, she is entitled to six weeks’ leave after the miscarriage or still birth.  Sick Leave o Six weeks’ paid sick leave in every three-year cycle worked List the different ways in which contractual terms and conditions of employment can be changed. 5  By agreement between the employer and the employee or in line with the method prescribed in the contract of employment;  By means of a collective agreement between the employer and a trade union/s;  By operation of law, for example, the BCEA; and  Through a sectoral determination issued by the MoL. Write a short note on the importance of the distinction between an employee and an independent contractor within the labour law context. 4  The primary aim of the LRA is to promote sound relations between employers and employees in the workplace.  Workers who are not employees fall outside the scope of the LRA and are, amongst others, not entitled to protection against unfair dismissal.  For this reason, it is important to be able to draw a distinction between employees and other workers who do not qualify as employees, so called ‘independent contractors’.  People not covered by labour laws will not be protected and will have to find other laws to protect themselves. Write a short note on the difference between direct and indirect discrimination. 4  Direct discrimination o It occurs if someone is clearly treated differently because of a certain characteristic, for example, race or gender. o An example of direct discrimination is an employee being paid less simply because she / he is disabled, of a different religion than the employer, or divorced.  Indirect discrimination o Found when criteria that appear to be neutral, negatively affect a certain group disproportionately, for example, gay or Hindu people or women. o Such discrimination, in contrast with direct discrimination, is often disguised and hard to detect. o An example of indirect discrimination would be a requirement that candidates must have a deep bass voice. In such instance more men than women will qualify. Unless this criterion can be justified by the requirements of the job, it will amount to indirect discrimination. Write a short note on the factors which must be considered to determine if dismissal is an appropriate sanction in cases of misconduct. 6  Dismissal should be seen as a matter of last resort.  Normally, dismissal will not be appropriate in the case of a first offence, unless the misconduct is serious and of such gravity that it renders the employment relationship intolerable.  The appropriateness of dismissal as a penalty will depend on the employee’s circumstances, including: o Length of service; o Previous disciplinary record; o Personal circumstances; o The nature of the job; and o The circumstances of the infringement itself. Discuss the difference between precautionary and punitive suspensions. 5  Precautionary suspensions o PURPOSE  Could be implemented to allow an employer to investigate the alleged misconduct of an employee, and to decide whether disciplinary action should be taken against the employee. o PAYMENT  Suspension, as a rule, is with pay unless the employee agrees to suspension without pay, or a law or collective agreement authorises unpaid suspension. o FAIRNESS  An employee should not be suspended unless:  There is a prima facie reason to believe that the employee has committed serious misconduct; and  There is some objectively justifiable reason for excluding the employee from the workplace. o Suspensions must be based on substantively valid reasons and fair procedures.  Punitive suspensions o Fair suspension without pay could be an alternative to a sanction of dismissal in an attempt to correct the behaviour of the employee. o It can be seen as a form of progressive discipline where appropriate. JJ and Jozy work for company ABC. JJ is a permanent employee, while Jozy is still on probation. They do the same job, and both are struggling to perform their duties as required. The supervisor, Mr Mabu, shows them how to do the work and also gives them further training, but they still cannot meet the required standard. Advise ABC on how to deal with the dismissal of these two employees. 10  Employees on probation o An employer is compelled to give the employee on probation the following assistance before she / he can be dismissed for poor work performance:  Evaluation, instruction, training, guidance or counselling needed to perform.  The employer must make clear to the employee what the performance standard is, and where he /she falls short.  The employer must give the employee assistance and an opportunity to improve.  The employer should measure the progress and give feedback.  The required assistance and the period of probation will be determined by the nature of the job.  If an employee is dismissed during the probationary period, the employee should have an opportunity to respond to the allegations, and she / he may also be assisted by a union representative or co-employee.  An employee on probation is also entitled to a disciplinary hearing and must be given notice as required.  Permanent employees (after probation) o Before an employee can be dismissed, the employer should:  Investigate to determine the reasons for the unsatisfactory performance.  Give appropriate evaluation, instruction, training, guidance or counselling.  Give the employee a reasonable period of time to improve.  If the employee then continues to perform unsatisfactorily, she / he can be dismissed for poor work performance; and  During this process the employee has the right to be heard and to be assisted by a union representative or a co-employee.  It would thus be fair to not make Jozy’s appointment permanent, based on poor work performance, but at this stage it might not be fair to dismiss JJ for poor work performance. Write brief notes on constructive dismissal as form of dismissal in terms of section 186(1) of the LRA 5  Where an employee resigns because the employer made continued employment intolerable for the employee, it will constitute a ‘dismissal’, better known as a ‘constructive’ dismissal.  Although the employee terminated the contract, it was not done voluntarily.  3 Elements must be present to succeed with a claim for constructive dismissal: o The employee must show that she / he has resigned; o The employee must show that the reason for the resignation was that continued employment became intolerable; and o The employee must show that it was the employer’s conduct that created the intolerable circumstances. Which disputes regarding dismissal must be referred to the CCMA for arbitration? 3  Unfair dismissal of an employee for misconduct or incapacity;  Constructive dismissal as a result of a transfer of a business as a going concern;  Where the employee does not know the reason for the dismissal. What questions will a court of law consider in determining whether a restraint of trade is reasonable? 5  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? In terms of the LRA, an employer may not employ an employee for longer than three months on one or successive fixed-term contracts unless the employer can demonstrate a justifiable reason for doing so. List four of the reasons provided in the LRA that will justify the extension of a fixed term contract/s for longer than three months. 4  When an employee is replacing another employee who is temporarily absent from work.  When an employee is employed on account of a temporary increase in the volume of work which is not expected to endure beyond 12 months.  When an employee is a student or recent graduate who is employed for the purpose of being trained or gaining work experience.  When an employee is employed to perform seasonal work.  When an employee is a non-citizen who has been granted a work permit for a period.  When an employee is employed to work exclusively on a specific project that has a limited or defined duration. Section 187(1) (f) of the LRA states that it is automatically unfair to dismiss an employee if the reason for the dismissal is the fact that the employee is of a certain race or of a certain age. Discuss this statement fully. In your answer you must also discuss whether there are any exceptions to this rule. 4  A dismissal is automatically unfair if based on unfair discrimination against an employee directly or indirectly, on any arbitrary ground including but not limited to race and age.  There are exceptions to this rule. o Some measure of discretion is allowed as to the fairness of a dismissal (a dismissal may be fair) if the reason for the discrimination is based on the inherent requirements of the job.  A dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.  Affirmative action is not a ground of justification for dismissal – affirmative action cannot be a fair reason for dismissal (it only applies with reference to the EEA and may justify discrimination where one employee is chosen over another for employment on the basis of race).  The only reasons that may justify the infringement of a basic right of an employee will be if: o An inherent requirement of the job necessitates the infringement, or o An employee was dismissed because she / he had reached the normal or agreed-to retirement age. X left his land of birth and moved to South Africa in search of a better life. X managed to get a job at a construction company in Johannesburg even though he does not possess a valid work permit. The employer did not pay X his salary at the end of the month and told him that his services were no longer needed because he is an illegal foreigner. X was surprised because the employer knew all along that he does not have a work permit. Advise X about the protection he will receive as an illegal foreign worker in South Africa. 5  The ESA defines a ‘foreign national’ as “an individual who is not a South African citizen or does not have a permanent residence permit issued in terms of the Immigration Act.”  Illegal foreigners will not receive protection under labour legislation, since they are not employees.  These workers will however still be protected by the Constitution, which guarantees everyone’s right to dignity and fair labour practices.  Any employer who knowingly employs an illegal foreigner or a foreigner in contravention of the Immigration Act, commits an offence.  Although the Immigration Act deters employers from intentionally hiring workers not authorised to work in terms of the Act, the Act cannot be used to allow an employer, through criminal conduct in employing unauthorised workers, to escape its obligations in terms of the employment contract.  An employer who employs an illegal foreigner may not refuse to pay that worker on the basis that the worker is an illegal foreigner.  Thus, an illegal foreigner may still be able to enforce her / his contractual rights against the employer.  X will not be able to enforce a contract in terms of the LRA, but is entitled to protection under the Constitution, as the Constitution is broad and extends to everyone. X has a right to fair labour practices in terms of section 23 of the Constitution as a result of the employment relationship.  This relationship exists despite the illegality of the type of work performed. Draw a clear distinction between the control test, organisation test and the dominant impression test. 6  The Control Test o Considers the control the employer has over the work the person does.  The Organisation Test o Considers whether a person is part and parcel of the employer’s business or organisation.  The Dominant Impression Test o Considers the employment relationship as a whole. X worked for Y as a prostitute for many years. One morning when X reports for duty, Z who is the receptionist at Y's brothel, informs X that Y has instructed her to give X a letter which informs her that her services are no longer needed as she was no longer bringing in enough money for the business. X feels that her employment has been unfairly terminated and she approaches you for advice. Do you think X will receive any form of protection in terms of the law?