Mrl3702 assignment 1 (complete answers) semester 1 2024 - due march 2024
Describe constructive dismissal - ans- where an employee resigns because the employer made continued
employment intolerable for the employee
- it was not done voluntarily
- the employer's conduct made it impossible for the employee to continue working for the employer
3 elements must be present
1. employee must show that he resigned
2. employee must show that the reason for the resignation was that continued employment became intolerable
3. employee must show that it was the employer's conduct that created the intolerable circumstances
Describe consultation as one of the functions of a workplace forum - ans- consultation entails that the employer
allows the forum to make representations & to advance alternative proposals and considers and responds to these
and if the employer disagrees with them, it must state the reasons for disagreeing
- must take place before the employer implements any proposal
- purpose of consultation is to attempt to reach consensus
Desertion - ans- if the employee without resigning stays away from work with the intention of terminating the contract
of employment
- employer must terminate the contract of employment by holding a disciplinary hearing in the absence of the
employee
- even if the employee returns after dismissal, the employer must give her the opportunity to state a case
Determing whether a person is 'suitably qulifed' depends on his - ans- formal qualifications
- prior learning
- relevant experience
- capacity to acquire, within a reasonable time, the ability to do the job
Direct discrimination = - ansOccurs if someone is clearly treated differently because of a certain characteristic for
example race or gender. Eg, an employee being paid less simply because he is disabled, of a different religion than
the employer or divorced
Direct discrimnation - ans- occurs if someone is clearly treated differently because of a certain characteristic eg race
or gender
- eg an employee being paid less simply because he is disabled
Discuss refusal to work as an important component of the definition of a strike - ans- the refusal maybe partial
(employees perform only some of their duties
- complete (employees do not perform any of their duties)
- or involve the retardation of work (employees work but at a reduced pace)
- or an obstruction of work (employee disturb production through their actions)
Discuss the binding nature of a collective agreement concluded by the bargaining council - ans- one of the main
functions of a bargaining council is to negotiate and conclude collective agreements on behalf of its members
- collective agreements concluded by a bargaining council are binding on:
> parties to the bargaining council who are also parties to the agreement
> parties to the council who are not parties to the agreement
> parties who are not members of the council and not parties to the agreement
Discuss the employee's duty to serve the employer's interests and act in good faith (3) - ansEach employee owes his
employer a duty of good faith, also referred to as a fiduciary duty. An employment relationship is built on trust and
confidence and this is in fact an implicit term of every employment contract. It includes, for example, the duty not to
work against the employer's interests, not to compete with the employer, to devote hours of work to promoting the
employer's business and to act honestly
Discuss the requirement that a picket must be authorised by a registered trade union in order to be protected - ans-
unregistered trade unions and employees acting on their own cannot authorise a picket
- this is to ensure that trade unions take responsibility for the conduct of their members taking part in a picket
- the authorization of a picket must be in accordance with the trade unions constitution
- the authoritarian must be formed and in writing and must be accompanied by a resolution authorizing the picket
- these documents should then be served on the employer before the commencement of a picket
, Mrl3702 assignment 1 (complete answers) semester 1 2024 - due march 2024
Discuss the requirements prescribed by the law for the conclusion of a valid contract, including a contract of
employment - ans- must be agreement between the parties
- the parties to the contract must have capacity to act
- agreement must be legally possible
- performance under the agreement must be physically possibly
- if any formalities are prescribed or the formation of that particular type of contract or if the parties themselves have
agreed about certain formalities, then those formalities must be satisfied
Discuss the various ways by which trade unions may acquire organisational rights - ans- through collective
agreement
- through membership of a bargaining council
- through strike action
- through the section 21 procedure
Doctrine of vicarious liability? - ans- an employer is liable for the unlawful or delictual acts of an employee performed
during the course of business.
- regulated by common law
- based on the principle that the employer has to compensate those who suffer injury as a result of the wrongful
conduct of its employees
- protects third parties
Employee = - ansappointed to render personal services in terms of a job description
Employee's duty to render services to the employer - ans- primary duty of an employee is to place his labour potential
at the disposal of the employer
- Includes the employers duty to enter and remain in the employer's service
- employee who fails to enter and remain in the employer's service will not receive any remuneration from the
employer
Family responsibility? - ansAn employee is entitled to 3 days family responsibility leave for every 12 months worked.
May be taken when an employees
- child is born or is sick
- in the event of the death of the employees spouse / life partner / parent / grand parent / child/ grand child
Fiduciary duty? - ansAn employment relationship is built on trust and confidence and this is in fact an implicit term of
every employment contract
Includes for example the duty not to work against the employers interests, not to compete with the employer, to
devote hours of work to promoting the employers business and to act honestly
Fixed term employees as a category of non standard employees - ansrefers to a contract of employemtn that
terminates on
- the occurance of a specified event
- the completion of a specified task or project
- a fixed date
Formal equality - ansfocuses on protecting individuals against discrimination
it views individual ability and performance as the only factors relevant for achieving success in society
Four circumstances under which employees of the labour broker may hold both the labour broker and the client jointly
and severally liable ito the LRA - ansIf the TES contravenes
- a collective agreement concluded in a bargaining council that regulates terms and conditions of employment
- a binding arbitration award that regulates terms and conditions of employment
- the BCEA
- a determination made in terms of the BCEA
Guidelines to distinguish between employees and independent contractors - anscontrol test = looks at control the
employee has over the work the person does the manner in which the work must be done & when and where the
work must be done
organisation test = looks at whether the person is part and parcel of the business of the employer. The persons work
must be integrated into the business of the employer and must not just be an accessory to the business
Describe constructive dismissal - ans- where an employee resigns because the employer made continued
employment intolerable for the employee
- it was not done voluntarily
- the employer's conduct made it impossible for the employee to continue working for the employer
3 elements must be present
1. employee must show that he resigned
2. employee must show that the reason for the resignation was that continued employment became intolerable
3. employee must show that it was the employer's conduct that created the intolerable circumstances
Describe consultation as one of the functions of a workplace forum - ans- consultation entails that the employer
allows the forum to make representations & to advance alternative proposals and considers and responds to these
and if the employer disagrees with them, it must state the reasons for disagreeing
- must take place before the employer implements any proposal
- purpose of consultation is to attempt to reach consensus
Desertion - ans- if the employee without resigning stays away from work with the intention of terminating the contract
of employment
- employer must terminate the contract of employment by holding a disciplinary hearing in the absence of the
employee
- even if the employee returns after dismissal, the employer must give her the opportunity to state a case
Determing whether a person is 'suitably qulifed' depends on his - ans- formal qualifications
- prior learning
- relevant experience
- capacity to acquire, within a reasonable time, the ability to do the job
Direct discrimination = - ansOccurs if someone is clearly treated differently because of a certain characteristic for
example race or gender. Eg, an employee being paid less simply because he is disabled, of a different religion than
the employer or divorced
Direct discrimnation - ans- occurs if someone is clearly treated differently because of a certain characteristic eg race
or gender
- eg an employee being paid less simply because he is disabled
Discuss refusal to work as an important component of the definition of a strike - ans- the refusal maybe partial
(employees perform only some of their duties
- complete (employees do not perform any of their duties)
- or involve the retardation of work (employees work but at a reduced pace)
- or an obstruction of work (employee disturb production through their actions)
Discuss the binding nature of a collective agreement concluded by the bargaining council - ans- one of the main
functions of a bargaining council is to negotiate and conclude collective agreements on behalf of its members
- collective agreements concluded by a bargaining council are binding on:
> parties to the bargaining council who are also parties to the agreement
> parties to the council who are not parties to the agreement
> parties who are not members of the council and not parties to the agreement
Discuss the employee's duty to serve the employer's interests and act in good faith (3) - ansEach employee owes his
employer a duty of good faith, also referred to as a fiduciary duty. An employment relationship is built on trust and
confidence and this is in fact an implicit term of every employment contract. It includes, for example, the duty not to
work against the employer's interests, not to compete with the employer, to devote hours of work to promoting the
employer's business and to act honestly
Discuss the requirement that a picket must be authorised by a registered trade union in order to be protected - ans-
unregistered trade unions and employees acting on their own cannot authorise a picket
- this is to ensure that trade unions take responsibility for the conduct of their members taking part in a picket
- the authorization of a picket must be in accordance with the trade unions constitution
- the authoritarian must be formed and in writing and must be accompanied by a resolution authorizing the picket
- these documents should then be served on the employer before the commencement of a picket
, Mrl3702 assignment 1 (complete answers) semester 1 2024 - due march 2024
Discuss the requirements prescribed by the law for the conclusion of a valid contract, including a contract of
employment - ans- must be agreement between the parties
- the parties to the contract must have capacity to act
- agreement must be legally possible
- performance under the agreement must be physically possibly
- if any formalities are prescribed or the formation of that particular type of contract or if the parties themselves have
agreed about certain formalities, then those formalities must be satisfied
Discuss the various ways by which trade unions may acquire organisational rights - ans- through collective
agreement
- through membership of a bargaining council
- through strike action
- through the section 21 procedure
Doctrine of vicarious liability? - ans- an employer is liable for the unlawful or delictual acts of an employee performed
during the course of business.
- regulated by common law
- based on the principle that the employer has to compensate those who suffer injury as a result of the wrongful
conduct of its employees
- protects third parties
Employee = - ansappointed to render personal services in terms of a job description
Employee's duty to render services to the employer - ans- primary duty of an employee is to place his labour potential
at the disposal of the employer
- Includes the employers duty to enter and remain in the employer's service
- employee who fails to enter and remain in the employer's service will not receive any remuneration from the
employer
Family responsibility? - ansAn employee is entitled to 3 days family responsibility leave for every 12 months worked.
May be taken when an employees
- child is born or is sick
- in the event of the death of the employees spouse / life partner / parent / grand parent / child/ grand child
Fiduciary duty? - ansAn employment relationship is built on trust and confidence and this is in fact an implicit term of
every employment contract
Includes for example the duty not to work against the employers interests, not to compete with the employer, to
devote hours of work to promoting the employers business and to act honestly
Fixed term employees as a category of non standard employees - ansrefers to a contract of employemtn that
terminates on
- the occurance of a specified event
- the completion of a specified task or project
- a fixed date
Formal equality - ansfocuses on protecting individuals against discrimination
it views individual ability and performance as the only factors relevant for achieving success in society
Four circumstances under which employees of the labour broker may hold both the labour broker and the client jointly
and severally liable ito the LRA - ansIf the TES contravenes
- a collective agreement concluded in a bargaining council that regulates terms and conditions of employment
- a binding arbitration award that regulates terms and conditions of employment
- the BCEA
- a determination made in terms of the BCEA
Guidelines to distinguish between employees and independent contractors - anscontrol test = looks at control the
employee has over the work the person does the manner in which the work must be done & when and where the
work must be done
organisation test = looks at whether the person is part and parcel of the business of the employer. The persons work
must be integrated into the business of the employer and must not just be an accessory to the business
