MRL3702 OCTOBER -NOVEMBER 2017 EXAM QUESTIONS AND ANSWERS (GRADED A+)
The four methods by which trade unions can acquire organisational rights - Answers 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 - Answers 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.
Employee's duty to render services to the employer - Answers 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" - Answers 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 - Answers 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 - Answers 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 - Answers 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 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 - Answers • 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 - Answers 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 - Answers 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 - Answers • any
disciplinary action,
The four methods by which trade unions can acquire organisational rights - Answers 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 - Answers 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.
Employee's duty to render services to the employer - Answers 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" - Answers 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 - Answers 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 - Answers 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 - Answers 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 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 - Answers • 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 - Answers 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 - Answers 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 - Answers • any
disciplinary action,
