MRL3702 OCTOBER / NOVEMBER 2024 EXAM QUESTIONS AND ANSWERS

MRL3702 OCTOBER / NOVEMBER 2024 EXAM QUESTIONS AND ANSWERS The four methods by which trade unions can acquire organisational rights - Answer️️ - 1. Through collective agreement - This means that, even if the trade union is not representative, it could have organisational rights on which the parties agreed. 2. Through membership of a bargaining council - A registered trade union that is party to a bargaining council, automatically acquires the two rights of access to the premises and to have trade union subscriptions deducted by stop order, in respect of all workplaces falling within the jurisdiction of the bargaining council. 3. Through strike action - A union, including a minority union, may strike in support of a demand for organisational rights even if it does not meet the statutory threshold for acquiring such rights. 4. Through the section 21 procedure - This process entails that the registered trade union must notify the employer in writing that it seeks to exercise organisational rights. The Doctrine of vicarious liability - Answer️️ -According to this doctrine, an employer is liable for the unlawful or delictual acts of an employee performed during the course of business. The operation of this doctrine is regulated by the common law and not by labour legislation. ©SOPHIABENNETT EXAM SOLUTIONS_2024/2025 Tuesday, September 3, 2024 10:30 AM Page | 2 Employee's duty to render services to the employer - Answer️️ -The primary duty of an employee is to place her/his labour potential at the disposal of the employer. This duty includes the employee's duty to enter and remain in the employer's service. The principle of "fair dismissal" - Answer️️ -The LRA clearly stipulates what a fair reason and a fair corresponding process (specifically designed for every specific reason) is in order for a dismissal to be fair. The fair reason for a dismissal refers to 'substantive fairness' and the correct process refers to 'procedural fairness'. Concept of selective re-employment - Answer️️ -Where an employer dismisses a number of employees for the same or similar reasons, and subsequently offers to re- employ one or more of them, but refuses to re-employ another, this will constitute a 'dismissal'. Describe constructive dismissal - Answer️️ -here 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. What are the effects of the insolvency of the employer on employment contracts - Answer️️ -Upon sequestration of the employer, the contract of employment is suspended for a period of 45 days. During this period the employee does not have to render services to the employer and the employee will not receive any payment or benefits during this period. The employee may, however, claim compensation from the Unemployment Insurance Fund. The Insolvency Act distinguishes between a trustee ©SOPHIABENNETT EXAM SOLUTIONS_2024/2025 Tuesday, September 3, 2024 10:30 AM Page | 3 and a liquidator: where an insolvent employer is an individual, a trustee is appointed and where the insolvent employer is a company, a liquidator is appointed. The trustee or liquidator takes over the affairs of the employer to finalise all matters in relation to the insolvent business. The trustee or liquidator can decide whether the contracts of employment should continue after the 45 days. Unless there was an agreement of continued employment, all the suspended contracts will automatically terminate after the date of insolvency.The employee is entitled to severance pay in terms of section 41 of the BCEA. Name two main functions of a workplace forum - Answer️️ -• to promote the interests of all employees in the workplace (again, not just union members), • to enhance efficiency in the workplace, • to consult on certain matters, and • to jointly make decision on specific matters. Describe the concept of substantive equality - Answer️️ -Substantive equality recognises that opportunities are determined by an individual's status as a member of a group(s). Discriminatory acts are part of patterns of behaviour towards groups, which result in disadvantage for such groups. The prohibition of unfair discrimination is in itself insufficient to achieve true equality, and therefore affirmative action measures are required to correct imbalances where disadvantage and inequality exist. LIST FOUR CONDUCTS BY THE EMPLOYER WHICH MAY BE REGARDED AS UNFAIR AND OF BAD FAITH RELATING TO THE PROMOTION OF AN EMPLOYEE - ©SOPHIABENNETT EXAM SOLUTIONS_2024/2025 Tuesday, September 3, 2024 10:30 AM Page | 4 Answer️️ -It is important to note that the courts will only intervene in disputes about promotion if the employer acted in bad faith, for example where: • the employer exercised its discretion inconsistently, • the reasons provided cannot be substantiated, • the decision was taken on a wrong principle, or • the decision was taken in a biased manner. LIST NINE ACTIONS BY THE EMPLOYER WHICH QUALIFY AS OCCUPATIONAL DETRIMENT - Answer️️ -• any disciplinary action, • dismissal, suspension, demotion, harassment or intimidation, • being transferred against the employee's will, • refusal of a transfer or promotion, • subjection to a term of employment which is altered or kept altered to the employee's disadvantage, • subjection to a term of retirement which is altered or kept altered to the employee's disadvantage, • refusal of a reference or being provided with an adverse reference, • denial of appointment to any position or office, • being threatened with any of these actions, or • being otherwise adversely affected in respect of employment, employment opportunities and work security. DEFINE THE CONCEPT OF PROTECTED DISCLOSURE - Answer️️ -A 'protected disclosure' is the disclosure of information to specific persons or bodies such as legal advisors, employers, members of Cabinet, the Public Protector or the ©SOPHIABENNETT EXAM SOLUTIONS_2024/2025 Tuesday, September 3, 2024 10:30 AM Page | 5 Auditor-General. It is important that factual information must be disclosed: suspicion, rumours and personal opinion do not constitute 'factual information'. LIST THREE CATEGORIES OF EMPLOYMENT WHICH ARE REGARDED AS NON- STANDARD - Answer️️ -The Act creates three categories of non-standard employment: • temporary employment services (hereafter 'TES') (commonly called labour brokers) and employees employed by them are temporary employees, • fixed-term employees, and • part-time employees. DISCUSS PROCEDURE FOR A PROTECTED STRIKE - Answer️️ -The right to strike and lock-out should comply with the law in order to be protected. Certain Requirements must be met to ensure that the action is protected,namely