17 OCTOBER 2023 EXAM ANSWERS - LABOUR LAW (MRL3702)

QUESTION 1 According to recent statistics issued by the Department of Employment and Labour, unemployment in South Africa is sitting at 32.7 percent. This number includes both new and disgruntled graduates. The latter category has been seeking jobs for more than five years without success and has since gave up. In early 2023, a group of graduates formed a movement called Concerned Unemployed Graduates of South Africa (CUGSA) which demands that the government must make jobs available for all the graduates. Further that priority should be given to South Africans when filing the positions and that a retirement policy should be developed, which sets retirement age at 60 years across all the economic sectors. These demands are aimed at levelling the unemployment curve in South Africa, de-stress the country’s unemployed youth and to alleviate poverty. Garibishane, a Serbian national and a labour law student agrees with the demand for the setting out of the retirement age but feels that the demand to prioritise South Africans when hiring unfairly discriminates against non-South Africa. With reference to relevant legal authority, write a one page well supported legal opinion regarding the fairness of the two demands made by CUGSA insofar as they relate to age, and discrimination based on nationality. (25) [25] QUESTION 2 Scumba owns a record label and employs six (6) employees. In early 2022, Scumba advertised a position of admin clerk to ease the admin department staff of the stress associated with the workload. In the advert, the requirements were that candidates should have a Diploma in Office management and at least a year's experience as admin clerk. Sesi applied, was called for an interview, and was appointed to fill the post. She has five years’ experience and possesses the relevant diploma. A month later Sesi realized that she was earning the same salary as the other six admin clerks, yet she is five years more experienced than any of the admin clerks. Based on that, she demands 7 MRL3702 October/November 2023 an immediate pay increase suitable for her experience. Dimakatso, one of the admin clerks feels that Sesi does not deserve a pay higher than theirs as she found them there; they are doing the same job and should thus earn the same. 2.1 With reference to relevant legal authority discuss whether Sesi or Dimakatso has a legitimate claim and why? (10) 2.2 Distinguish between ‘re-employment’ and ‘reinstatement’ and provide an example of each. (4) 2.3 Define the concept ‘automatically unfair dismissal’. (8) 2.4 Explain the circumstances under which an employee may be entitled to a ‘family responsibility leave’? (3) [25] QUESTION 3 3.1 UNISA employees who travel to and from Tembisa daily are complaining that their transport fare has increased since the introduction of e-tolls. Accordingly, they argue that their salaries are 10 percent less than their colleagues from Pretoria and other areas where they do not use e-tolled routes. Therefore, they demand that the employer should reimburse them the 10 percent they lose to the e-tolled routes or to cause the government to remove the e-tolls, failing which, they will strike. With reference to relevant legal authority, discuss the lawfulness of the use of the strike to support their demand to have the e-tolled route between Tembisa and UNISA removed. (15) 3.2 Discuss the employer’s conducts which constitute a refusal to bargain with the trade union? (10) [25] QUESTION 4 4.1 Distinguish between the primary strike and the secondary strike in terms of their procedures. (10) 8 MRL3702 October/November 2023 4.2 Members of the South African National Defence Force working at the border posts demand a fifteen percent salary increase because, they claim, ‘we work in bushes, remote from our families, and are exposed to physical danger and foreign illnesses associated with the bush life. This is not social’. They gave the government an ultimatum to respond positively within a month, failing which, they will strike. With reference to relevant legal authority, discuss whether the ultimatum by the SANDF to strike is legally possible. (15)