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Exam (elaborations)

MRL3702 LABOUR LAW Exam Pack.

MRL3702 LABOUR LAW Exam Pack. 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

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