LABOUR LAW
Exam Pack
JOSEPH
,1
Oct / Nov 2015
QUESTION 1
a) Formal equality focuses on protecting individuals against discrimination.
It views individual ability and performance as the only factors relevant for achieving success in society.
b) Temporary/contract employees employed for a specific period or for a specific project (example
seasonal harvesting or a one off census project) instead of employing employees on a
permanent basis. These employees are recognised and protected according to the LRA, BCEA,
EEA and SDA.
c) This duty is captured by the constitutional right to fair labour practices in section 23 of the
Constitution. The LRA protects employees against unfair treatment during the time of
employment (unfair labour practices) and against unfair dismissal. This duty is wide enough to
include other common law duties such as the duty to receive the employee into service and to
comply with other statutory obligations.
d) Section 186(1)(e) provides that, “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 (and not the employer) terminates
the contract, it was not done voluntarily. The employer’s conduct made it impossible for the
employee to continue working for the employer.”
Copeland and New Dawn Prophesy Business Solutions (Pty) Ltd
The court held that an employee alleging constructive dismissal has to show:
“…convincingly that his resignation…came about as a consequence of the employer being the “villain”
in the employment scenario who made the employment relationship “intolerable” to him, to such an
extent that he finally in desperation, having exhausted all internal mechanisms of the employer
available to him, was left with no other viable alternative but to resign”
The court made it clear that the following three elements must be present to succeed in a claim of
unfair dismissal:
the employee must show that he/she has resigned
the employee must show that the reason for the resignation was that continued
employment become intolerable, and
the employee must show that it was the employer’s conduct that created the intolerable
circumstances
Albany Bakeries Ltd v Van Wyk and others
The employee resigned after he had been demoted. The court held that, under the circumstances, the
demotion did not make employment intolerable
,2
e) The EEA does not expressly regulate equal pay for equal work. However, the Labour Court has
held that remuneration is an employment policy or practice.
Paying an employee less than another performing the same or similar work based on an unspecified
ground constitutes less favourable treatment
Therefore any claim of equal pay for work that is the same or similar can be brought in terms of the
EEA.
The same principle applies with regards to equal pay for work of equal value
Mangena & others v Fila South Africa (Pty) Ltd & others
Shabalala (a black male employee) alleged that he was paid less than McMullin (a white female
coemployee) for doing the same work based on race
The court took into account ILO Convention 100 on equal pay between sexes and extended it to
include other specified or unspecified grounds such as race
However no factual foundation was laid down in relation to the similarities of the work done by
Shabalala and McMullin
In fact Shabalala’s allegations were found to be speculative
He was an administrative clerk providing price stickers, en elementary mechanical job
McMullin on the other hand did a sale-on-consignment job involving large clients
Her job required judging and taking decisions
Shabalala thus failed to establish a prima facie case
An attempt at an alternative claim based on work of equal value was held to be misplaced
f) Affirmative action measures apply only to suitably qualified people from designated groups.
Designated groups are black people (meaning African, Coloured and Indian people), women and
people with disabilities. In terms of a recent decision “black people” also include Chinese
people.
A member of a designated group must be “suitably qualified” to benefit from affirmative action.
“Suitably qualified” means that the person has one of the following four:
formal qualifications;
prior learning;
relevant experience; or
the capacity to acquire, within a reasonable time, the ability to do the job.
g) A small employer employs a small number of employees.
h) Maximum of 45 hours a week. If an employee works 5 days a week or less, he/she may not work
more than 9 hours a day. If an employee works 6 days a week, he or she may not work not more
than 8 hours a day (these hours include an hour lunch break).
i) The purpose of a restraint-of-trade agreement is to protect the employer’s trade secrets,
goodwill and business connections. It prevents the employee from competing with his or her
employer within a defined area and for a prescribed period. In determining whether a restraint-
of-trade is enforceable, a court will balance the following;
, 3
The public interest, which requires parties to comply with contractual obligations even if these are
unreasonable or unfair
VS
The right of all persons to be permitted as far as possible to engage in commerce or the professions
of their own choice.
Questions to determine reasonableness:
Is there and interest deserving of protection at the termination of the agreement?
Is that being prejudiced?
If so, how does that interest weigh up against the interests of the other party not to work?
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 is necessary to protect the protectable interest?
j) ‘Lock out’ is defined as the exclusion by an employer of employee from the employer’s
workplace, for the purpose of compelling the employees to accept the demand in respect of
any matter of mutual interest between the employer and employee, whether or not the
employer breaches those employee’s contracts of employment in the course of or for the
purpose of that exclusion’
QUESTION 2
a)
i. Economic needs because Seane (Pty) Ltd encountered financial
difficulties. ii. Yes. As long as fairness and procedures in terms of the LRA
are followed.
iii. LIFO and FIFO are procedural methods that are used to determine whether an employer used fair
and objective selection criteria in dismissing employees based on operational reasons. LIFO means
last in, first out FIFO means first in, first out
b) Absent without leave (AWOL) is when an employee does not want to terminate the
employment contract, but stays away from work without leave. AWOL warrants dismissal if the
period of absence is unreasonably long. Provided the employee returns a few days with a latter
to show that he/she had a reason for the absence eg having been hospitalised or imprisoned, a
dismissal will not be appropriate.
Desertion involves the employee, without resigning, stays away from work with the intention of
terminating the contract of employment. The employer must terminate the employment contract by
holding a disciplinary hearing in the absence of the employee. If the employee returns after dismissal,
the employer must give him/her an opportunity to be heard.
c) Hamba Boya Hotel may fairly dismiss Abraham based dishonesty. A general principle holds that
dishonesty caused by an employee harm the relationship of trust and confidence between the
employer and employee, and it would be fair to dismiss such a dishonest employee. The
employment contract between Hamba Boya Hotel and Abraham was influenced by the latter’s
Exam Pack
JOSEPH
,1
Oct / Nov 2015
QUESTION 1
a) Formal equality focuses on protecting individuals against discrimination.
It views individual ability and performance as the only factors relevant for achieving success in society.
b) Temporary/contract employees employed for a specific period or for a specific project (example
seasonal harvesting or a one off census project) instead of employing employees on a
permanent basis. These employees are recognised and protected according to the LRA, BCEA,
EEA and SDA.
c) This duty is captured by the constitutional right to fair labour practices in section 23 of the
Constitution. The LRA protects employees against unfair treatment during the time of
employment (unfair labour practices) and against unfair dismissal. This duty is wide enough to
include other common law duties such as the duty to receive the employee into service and to
comply with other statutory obligations.
d) Section 186(1)(e) provides that, “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 (and not the employer) terminates
the contract, it was not done voluntarily. The employer’s conduct made it impossible for the
employee to continue working for the employer.”
Copeland and New Dawn Prophesy Business Solutions (Pty) Ltd
The court held that an employee alleging constructive dismissal has to show:
“…convincingly that his resignation…came about as a consequence of the employer being the “villain”
in the employment scenario who made the employment relationship “intolerable” to him, to such an
extent that he finally in desperation, having exhausted all internal mechanisms of the employer
available to him, was left with no other viable alternative but to resign”
The court made it clear that the following three elements must be present to succeed in a claim of
unfair dismissal:
the employee must show that he/she has resigned
the employee must show that the reason for the resignation was that continued
employment become intolerable, and
the employee must show that it was the employer’s conduct that created the intolerable
circumstances
Albany Bakeries Ltd v Van Wyk and others
The employee resigned after he had been demoted. The court held that, under the circumstances, the
demotion did not make employment intolerable
,2
e) The EEA does not expressly regulate equal pay for equal work. However, the Labour Court has
held that remuneration is an employment policy or practice.
Paying an employee less than another performing the same or similar work based on an unspecified
ground constitutes less favourable treatment
Therefore any claim of equal pay for work that is the same or similar can be brought in terms of the
EEA.
The same principle applies with regards to equal pay for work of equal value
Mangena & others v Fila South Africa (Pty) Ltd & others
Shabalala (a black male employee) alleged that he was paid less than McMullin (a white female
coemployee) for doing the same work based on race
The court took into account ILO Convention 100 on equal pay between sexes and extended it to
include other specified or unspecified grounds such as race
However no factual foundation was laid down in relation to the similarities of the work done by
Shabalala and McMullin
In fact Shabalala’s allegations were found to be speculative
He was an administrative clerk providing price stickers, en elementary mechanical job
McMullin on the other hand did a sale-on-consignment job involving large clients
Her job required judging and taking decisions
Shabalala thus failed to establish a prima facie case
An attempt at an alternative claim based on work of equal value was held to be misplaced
f) Affirmative action measures apply only to suitably qualified people from designated groups.
Designated groups are black people (meaning African, Coloured and Indian people), women and
people with disabilities. In terms of a recent decision “black people” also include Chinese
people.
A member of a designated group must be “suitably qualified” to benefit from affirmative action.
“Suitably qualified” means that the person has one of the following four:
formal qualifications;
prior learning;
relevant experience; or
the capacity to acquire, within a reasonable time, the ability to do the job.
g) A small employer employs a small number of employees.
h) Maximum of 45 hours a week. If an employee works 5 days a week or less, he/she may not work
more than 9 hours a day. If an employee works 6 days a week, he or she may not work not more
than 8 hours a day (these hours include an hour lunch break).
i) The purpose of a restraint-of-trade agreement is to protect the employer’s trade secrets,
goodwill and business connections. It prevents the employee from competing with his or her
employer within a defined area and for a prescribed period. In determining whether a restraint-
of-trade is enforceable, a court will balance the following;
, 3
The public interest, which requires parties to comply with contractual obligations even if these are
unreasonable or unfair
VS
The right of all persons to be permitted as far as possible to engage in commerce or the professions
of their own choice.
Questions to determine reasonableness:
Is there and interest deserving of protection at the termination of the agreement?
Is that being prejudiced?
If so, how does that interest weigh up against the interests of the other party not to work?
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 is necessary to protect the protectable interest?
j) ‘Lock out’ is defined as the exclusion by an employer of employee from the employer’s
workplace, for the purpose of compelling the employees to accept the demand in respect of
any matter of mutual interest between the employer and employee, whether or not the
employer breaches those employee’s contracts of employment in the course of or for the
purpose of that exclusion’
QUESTION 2
a)
i. Economic needs because Seane (Pty) Ltd encountered financial
difficulties. ii. Yes. As long as fairness and procedures in terms of the LRA
are followed.
iii. LIFO and FIFO are procedural methods that are used to determine whether an employer used fair
and objective selection criteria in dismissing employees based on operational reasons. LIFO means
last in, first out FIFO means first in, first out
b) Absent without leave (AWOL) is when an employee does not want to terminate the
employment contract, but stays away from work without leave. AWOL warrants dismissal if the
period of absence is unreasonably long. Provided the employee returns a few days with a latter
to show that he/she had a reason for the absence eg having been hospitalised or imprisoned, a
dismissal will not be appropriate.
Desertion involves the employee, without resigning, stays away from work with the intention of
terminating the contract of employment. The employer must terminate the employment contract by
holding a disciplinary hearing in the absence of the employee. If the employee returns after dismissal,
the employer must give him/her an opportunity to be heard.
c) Hamba Boya Hotel may fairly dismiss Abraham based dishonesty. A general principle holds that
dishonesty caused by an employee harm the relationship of trust and confidence between the
employer and employee, and it would be fair to dismiss such a dishonest employee. The
employment contract between Hamba Boya Hotel and Abraham was influenced by the latter’s
