LABOUR LAW – QUESTION PAPERS FOR MAY/JUNE EXAMS
QUESTION PAPER OCTOBER/NOVEMBER 2015
QUESTION 1
Write brief notes on the following:
a) Formal equality as a form of equality based on section 9(3) & (4) of SA Constitution. (2)
➢ s9 (3)of the Constitution states that, The state may not unfairly discriminate directly or
indirectly against anyone on one or more grounds, including race, gender, sex,
pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability,
religion, conscience, belief, culture, language or birth;
➢ Sub-section (4) No person may unfairly discriminate directly or indirectly against anyone on
one or more grounds in terms of subsection (3). National legislation must be enacted to
prevent or prohibit unfair discrimination.
b) Fixed-term employees as a category of non-standard employees. (3)
➢ Temporary employment services (hereafter TES) (Common called labour brokers) and
employees employed by them are temporary employees
➢ Fixed term employees Part-time employees
c) The duty of the employer to deal fairly with the employee. (4)
➢ To remunerate the employee
➢ To provide the employee with work
➢ To provide safe working conditions
➢ To deal fairly with the employee
d) Constructive dismissal as a form of dismissal in terms of the LRA (4)
➢ The employee must show he/she has resigned
➢ The employee must show that the reason for the resignation was that continued
employment became intolerable
➢ The employee must show that it was the employer’s conduct that created the intolerable
circumstances.
e) The meaning of “same work” for purposes of “equal pay for work” (4)
➢ The Labour Court explained that the issue of equal pay for equal work was not regulated
in an Act in SA but was dealt with in Mangena & Others v Fila SA case:
➢ Paying an employee is an employment policy or practice ito the EEA
➢ Paying an employee less than another employee for performing the same or similar work
based on a specified or an unspecified ground ito EEA constitutes less favourable
treatment. Therefore any claim for equal pay for work that is the same or similar, falls to
be determined ito the EEA.
➢ The same is valid for claims for equal pay for work of equal value. The claimant must
establish a link between the differentiation and a specified or unspecified ground. Once
such a link is established, section 11 of the EEA then requires the employer to show that
the discrimination is not unfair.
f) The meaning of “suitably qualified” for purposes of benefitting from affirmative action.(4)
Suitably qualified means that the person has one or a combination of the following
factors:
❖ Formal qualifications
❖ Prior learning
❖ Relevant experience
❖ The capacity to acquire, within a reasonable time, the ability to do the job
g) The meaning of “small employer” in context of dismissal based on operational reasons. (2)
,LABOUR LAW – QUESTION PAPERS FOR MAY/JUNE EXAMS
➢ A small employer is an employer that employs fewer than 50 employees.
➢ The LRA does not make provision for a large-scale dismissal by a small employer;
therefore a small employer will retrench employees in accordance with section
189.
,LABOUR LAW – QUESTION PAPERS FOR MAY/JUNE EXAMS
h) Maximum working hours as provided by the BCEA (3)
➢ A maximum of 45 hours a week.
➢ If an employee works five days a week or less, he/she may not work more than 9 hrs a day.
➢ If an employee works six days or more a week, then he/she may not work more than 8 hours
a day (which include a lunch break)
i) The meaning of restraint of trade in the contract of employment. (4)
➢ A restraint-of-trade clause is normally included in employment contracts to protect the
interests of the employer against unfair competition from employees after their employment
ended.
➢ The purpose is to protect the employer’s trade secrets, goodwill and business connections.
➢ A restraint-of-trade clause is lawful and enforceable unless it is unreasonable as to prevent
ex- employee from earning a living. Magna Alloys & Research v Ellis case.
j)Lock-out as a form of industrial action. (5)
➢ There must be a refusal to work.
➢ The refusal must be a concerted action by people employed by the same or different employers
➢ The refusal must be for the purpose of remedying a grievance or resolving a dispute in
respect of any matter of mutual interest between an employer and employee.
➢ A strike /lock-out must comply with the following requirements set by the Act iot be protected.
➢ The action must comply with the definition of ‘strike’ or ‘lock-out’.
➢ It must comply with the procedural requirements ito section 64 of the LRA and there should
be no limitations ito s65 of the LRA.
QUESTION 2
a) Seane (Pty) Ltd (“Seane”) is a reputable and reliable motor vehicle dealer in Difateng. Seane
sells both luxury and semi luxury cars. In 2014, Seane encountered financial problems since
it could not sell enough cars compared to previous years. As a result, three directors were
dismissed (retrenched) in an attempt to save the business. The hard times continued and in
June 2015, Seane wants to dismiss (retrench) more employees and approaches you for
advice. Answer the following questions.
i) Under which category of operational reasons will the dismissal of employees in this case fall?
Motivate your answer. (2)
The category of operational reasons for the dismissal of employees in this case will fall under
fair dismissal based on the criteria of retrenchment. Dismissal for operational reasons is also
regarded as a “no-fault” dismissal because the termination is not as a result of the actions or
fault of the employee.
ii) Assume that the reason for their dismissal is due to the fact that Seane bought a new machine
in order to increase production. Will this constitute a valid reason for dismissal based on
operational reasons? Motivate your answer. (2)
❖ Yes, the reason for a valid reason for dismissal based on operational reasons of more
employees would be justifiable.
❖ The reason for the dismissal is on operational requirements as defined in the LRA i.e.
economical, technological, structural or similar needs; the reason is justifiable and based
on rational grounds.
iii) What do the concepts LIFO and FIFO mean for purposes of a fair dismissal based on
operational reasons? (4)
➢ The concept LIFO for the purposes of a fair dismissal based on operational reasons
means “Last in First Out” This is considered fair in almost all circumstances.
, LABOUR LAW – QUESTION PAPERS FOR MAY/JUNE EXAMS
➢ The concept of FIFO for the purposes of a fair dismissal based on operational
reasons means “First in First Out”.
QUESTION PAPER OCTOBER/NOVEMBER 2015
QUESTION 1
Write brief notes on the following:
a) Formal equality as a form of equality based on section 9(3) & (4) of SA Constitution. (2)
➢ s9 (3)of the Constitution states that, The state may not unfairly discriminate directly or
indirectly against anyone on one or more grounds, including race, gender, sex,
pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability,
religion, conscience, belief, culture, language or birth;
➢ Sub-section (4) No person may unfairly discriminate directly or indirectly against anyone on
one or more grounds in terms of subsection (3). National legislation must be enacted to
prevent or prohibit unfair discrimination.
b) Fixed-term employees as a category of non-standard employees. (3)
➢ Temporary employment services (hereafter TES) (Common called labour brokers) and
employees employed by them are temporary employees
➢ Fixed term employees Part-time employees
c) The duty of the employer to deal fairly with the employee. (4)
➢ To remunerate the employee
➢ To provide the employee with work
➢ To provide safe working conditions
➢ To deal fairly with the employee
d) Constructive dismissal as a form of dismissal in terms of the LRA (4)
➢ The employee must show he/she has resigned
➢ The employee must show that the reason for the resignation was that continued
employment became intolerable
➢ The employee must show that it was the employer’s conduct that created the intolerable
circumstances.
e) The meaning of “same work” for purposes of “equal pay for work” (4)
➢ The Labour Court explained that the issue of equal pay for equal work was not regulated
in an Act in SA but was dealt with in Mangena & Others v Fila SA case:
➢ Paying an employee is an employment policy or practice ito the EEA
➢ Paying an employee less than another employee for performing the same or similar work
based on a specified or an unspecified ground ito EEA constitutes less favourable
treatment. Therefore any claim for equal pay for work that is the same or similar, falls to
be determined ito the EEA.
➢ The same is valid for claims for equal pay for work of equal value. The claimant must
establish a link between the differentiation and a specified or unspecified ground. Once
such a link is established, section 11 of the EEA then requires the employer to show that
the discrimination is not unfair.
f) The meaning of “suitably qualified” for purposes of benefitting from affirmative action.(4)
Suitably qualified means that the person has one or a combination of the following
factors:
❖ Formal qualifications
❖ Prior learning
❖ Relevant experience
❖ The capacity to acquire, within a reasonable time, the ability to do the job
g) The meaning of “small employer” in context of dismissal based on operational reasons. (2)
,LABOUR LAW – QUESTION PAPERS FOR MAY/JUNE EXAMS
➢ A small employer is an employer that employs fewer than 50 employees.
➢ The LRA does not make provision for a large-scale dismissal by a small employer;
therefore a small employer will retrench employees in accordance with section
189.
,LABOUR LAW – QUESTION PAPERS FOR MAY/JUNE EXAMS
h) Maximum working hours as provided by the BCEA (3)
➢ A maximum of 45 hours a week.
➢ If an employee works five days a week or less, he/she may not work more than 9 hrs a day.
➢ If an employee works six days or more a week, then he/she may not work more than 8 hours
a day (which include a lunch break)
i) The meaning of restraint of trade in the contract of employment. (4)
➢ A restraint-of-trade clause is normally included in employment contracts to protect the
interests of the employer against unfair competition from employees after their employment
ended.
➢ The purpose is to protect the employer’s trade secrets, goodwill and business connections.
➢ A restraint-of-trade clause is lawful and enforceable unless it is unreasonable as to prevent
ex- employee from earning a living. Magna Alloys & Research v Ellis case.
j)Lock-out as a form of industrial action. (5)
➢ There must be a refusal to work.
➢ The refusal must be a concerted action by people employed by the same or different employers
➢ The refusal must be for the purpose of remedying a grievance or resolving a dispute in
respect of any matter of mutual interest between an employer and employee.
➢ A strike /lock-out must comply with the following requirements set by the Act iot be protected.
➢ The action must comply with the definition of ‘strike’ or ‘lock-out’.
➢ It must comply with the procedural requirements ito section 64 of the LRA and there should
be no limitations ito s65 of the LRA.
QUESTION 2
a) Seane (Pty) Ltd (“Seane”) is a reputable and reliable motor vehicle dealer in Difateng. Seane
sells both luxury and semi luxury cars. In 2014, Seane encountered financial problems since
it could not sell enough cars compared to previous years. As a result, three directors were
dismissed (retrenched) in an attempt to save the business. The hard times continued and in
June 2015, Seane wants to dismiss (retrench) more employees and approaches you for
advice. Answer the following questions.
i) Under which category of operational reasons will the dismissal of employees in this case fall?
Motivate your answer. (2)
The category of operational reasons for the dismissal of employees in this case will fall under
fair dismissal based on the criteria of retrenchment. Dismissal for operational reasons is also
regarded as a “no-fault” dismissal because the termination is not as a result of the actions or
fault of the employee.
ii) Assume that the reason for their dismissal is due to the fact that Seane bought a new machine
in order to increase production. Will this constitute a valid reason for dismissal based on
operational reasons? Motivate your answer. (2)
❖ Yes, the reason for a valid reason for dismissal based on operational reasons of more
employees would be justifiable.
❖ The reason for the dismissal is on operational requirements as defined in the LRA i.e.
economical, technological, structural or similar needs; the reason is justifiable and based
on rational grounds.
iii) What do the concepts LIFO and FIFO mean for purposes of a fair dismissal based on
operational reasons? (4)
➢ The concept LIFO for the purposes of a fair dismissal based on operational reasons
means “Last in First Out” This is considered fair in almost all circumstances.
, LABOUR LAW – QUESTION PAPERS FOR MAY/JUNE EXAMS
➢ The concept of FIFO for the purposes of a fair dismissal based on operational
reasons means “First in First Out”.
