MRL3702 EXAM MAY / JUNE 2013/ MRL3702 assignment 1 for Semester 1 2024 (Footnotes and Bibliography

MRL3702 EXAM MAY / JUNE 2013/ MRL3702 assignment 1 for Semester 1 2024 (Footnotes and Bibliography Included) Clicks Retailers (Pty) Limited v Madikwe and Others (JR 1924/19) [2023] ZALCJHB 67 Case METHODS THROUGH WHICH BASIS CONDITIONS OF EMPLOYMENT MAY BE CHANGED - CORRECTANSVariation by way of a collective agreement Variation by way of a ministerial determination Variation by way of a sectoral determination CIRCUMSTANCES UNDER WHICH HIV/AIDS TESTING WOULD BE ALLOWED IN THE WORKPLACE - CORRECTANS-the following factors were stipulated as circumstances under which HIV testing would be allowed: • to prevent unfair discrimination, • where the employer needed HIV testing to determine the extent of HIV in the workplace in order to place itself in a better position to evaluate its training and awareness programmes, and to draw up future plans based on the outcome of the tests, • where the purpose of testing was that the employer needed to know the prevalence of HIV at its workplace in order to be pro-active in its prevention amongst employees, and to treat the symptoms and to plan for contingencies, including the fair distribution of employee benefits, medical aid and the training of replacement labour, • where medical facts indicated the need, • where employment conditions required testing, • where social policy required testing, • where the inherent requirements of the job necessitated it, or • where particular categories of employees/jobs required such testing. THE SUBSTANTIVE FAIRNESS OF A DISMISSAL BASED ON MISCONDUCT - CORRECTANS-The Code: Dismissal sets the following requirements for substantive fairness: • Did the employee contravene a rule or standard regulating conduct in, or of relevance to, the workplace? • If so, was the rule valid and reasonable? This is normally determined with reference to the needs of the workplace and business. • Was the employee aware of the rule, or could she/he reasonably be expected to have been aware of the rule? An employee can only be punished if she/he knew that the conduct was unacceptable and that a transgression of this rule could lead to dismissal. • Is dismissal an appropriate action for Contravention of the rule? Dismissal should be seen as a matter of last resort. Normally, dismissal will not be appropriate in the case of a first offence, unless the misconduct is serious and of such gravity that it renders the employment relationship intolerable. The appropriateness of dismissal as a penalty will depend on the employee's circumstances, including: -- length of service, -- previous disciplinary record, -- personal circumstances, -- the nature of the job, and -- the circumstances of the infringement itself. MATTERS ON WHICH THE EMPLOYER AND EMPLOYEES MUST TRY AND REACH CONSENSUS WHEN THE EMPLOYER NEEDS TO DISMISS EMPLOYEES BASED ON OPERATIONAL REQUIREMENTS - CORRECTANSThere are six matters about which the parties must endeavour to reach agreement/consensus: • appropriate measures to avoid the dismissals, • appropriate measures to minimise the number of dismissals, • appropriate measures to change the timing of the dismissals, • appropriate measures to mitigate the adverse effects of the dismissals, • the selection criteria, and • severance pay. THE COMMON LAW DUTIES OF AN EMPLOYEE - CORRECTANS-1. to render services to the employer 2. To work competently and diligently 3. To obey lawful and reasonable instructions 4. To serve the employer's interests and act in good faith CATEGORIES OF EMPLOYEES SPECIFICALLY EXCLUDED FROM THE APPLICATION OF THE LRA - CORRECTANS-• members of the National Defence Force, and • members of the State Security Agency.