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
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
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
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
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