Jodi Cleworth
Module: Individual Labour
law
Module code: LLW2601
Exam Date: 18- 19
November 2020
Student number: 61404306
Exam Type: Portfolio
Academic Integrity Declaration:
I, Jodi Cleworth declare that this portfolio submitted towards the examination for the
module LLW2601, is my own work and has not been submitted before to any
institution for assessment purposes. Further, all sources that I have used or quoted
have been indicated and acknowledged by means of complete references.
Page 1 of 5
, 1.1 Based on these circumstances the ABC Bank LTD (Employer) could potentially
dismiss Gabi by terminating the contract of employment through no-fault
dismissal for incapacity which is regulated by sections 188 of the Labour
Regulations Act (hereafter ‘LRA’). This section
“Refers to cases where poor work performance or ill health or injury renders the
employee incapable to perform her/his duties. Incapacity involves some form of
behaviour, conduct or inability which is neither intentional nor negligent”1
In the set of facts give one can identify that the employee (Gabi) drank on shift which
is a serious offence of the employer’s disciplinary code and should be immediate
grounds for dismissal based on the dismissal of conduct. However, due to Gabi and
her psychologist confirming she is an alcoholic, her alcoholism is a form of ill health
and renders her incapable of performing her duties. Her behaviour was not
intentional nor was it negligent and therefor counselling and rehabilitation are
recommended rather than dismissal. If after rehabilitation has not worked then
termination of the employment contract can be considered for dismissal of
misconduct. ABC Bank LTD will be successful in dismissing Gabi if they exhaust all
avenues in rehabilitating Gabi and there is no shift in her behaviour.2
1.2 Yes, because being in a festive mood and drinking does not fall under dismissal
for incapacity but rather dismissal for misconduct. Being drunk at work is a serious
offence of the employer’s disciplinary code and a serious breach of contract and
grounds for immediate dismissal.
1.3 For Gabi to challenge her dismissal on the basis of incapacity she will need to
follow the dispute resolution process. This will ensure that her dismissal was
procedurally fair. From the day after her dismissal, Gabi has 30 days to report the
dispute to the CCMA or bargaining council.3 If the dispute is not successful it will be
set down for attribution at the barraging council and CCMA. If a commissioner
makes an award it means that the decision is final and that the dispute is not
possible to review. It can however be reviewed by the labour court but not often. If
her dismissal is deemed unfair then the maximum amount of one year's salary can
be compensated.4
1.4 Determining Gabi's chances of success should she challenge the fairness of her
dismissal is based on a two-step process.
The LRA states that if a work rule is broken it is grounds for dismissal of misconduct
therefore to establish that Gabi's dismissal was not fair the following needs to
proceed.5
“Step 1. To determine whether the was a dismissal
Step 2. Determine whether the dismissal was fair and whether the correct procedure was
followed.”6
1
McGregor M & Dekker AH Rules 176.
2
McGregor M & Dekker AH Rules 195.
3
McGregor M & Dekker AH Rules 181.
4
McGregor M & Dekker AH Rules 175.
5
McGregor M & Dekker AH Rules 167.
6
McGregor M & Dekker AH Rules 147.
Page 2 of 5
Module: Individual Labour
law
Module code: LLW2601
Exam Date: 18- 19
November 2020
Student number: 61404306
Exam Type: Portfolio
Academic Integrity Declaration:
I, Jodi Cleworth declare that this portfolio submitted towards the examination for the
module LLW2601, is my own work and has not been submitted before to any
institution for assessment purposes. Further, all sources that I have used or quoted
have been indicated and acknowledged by means of complete references.
Page 1 of 5
, 1.1 Based on these circumstances the ABC Bank LTD (Employer) could potentially
dismiss Gabi by terminating the contract of employment through no-fault
dismissal for incapacity which is regulated by sections 188 of the Labour
Regulations Act (hereafter ‘LRA’). This section
“Refers to cases where poor work performance or ill health or injury renders the
employee incapable to perform her/his duties. Incapacity involves some form of
behaviour, conduct or inability which is neither intentional nor negligent”1
In the set of facts give one can identify that the employee (Gabi) drank on shift which
is a serious offence of the employer’s disciplinary code and should be immediate
grounds for dismissal based on the dismissal of conduct. However, due to Gabi and
her psychologist confirming she is an alcoholic, her alcoholism is a form of ill health
and renders her incapable of performing her duties. Her behaviour was not
intentional nor was it negligent and therefor counselling and rehabilitation are
recommended rather than dismissal. If after rehabilitation has not worked then
termination of the employment contract can be considered for dismissal of
misconduct. ABC Bank LTD will be successful in dismissing Gabi if they exhaust all
avenues in rehabilitating Gabi and there is no shift in her behaviour.2
1.2 Yes, because being in a festive mood and drinking does not fall under dismissal
for incapacity but rather dismissal for misconduct. Being drunk at work is a serious
offence of the employer’s disciplinary code and a serious breach of contract and
grounds for immediate dismissal.
1.3 For Gabi to challenge her dismissal on the basis of incapacity she will need to
follow the dispute resolution process. This will ensure that her dismissal was
procedurally fair. From the day after her dismissal, Gabi has 30 days to report the
dispute to the CCMA or bargaining council.3 If the dispute is not successful it will be
set down for attribution at the barraging council and CCMA. If a commissioner
makes an award it means that the decision is final and that the dispute is not
possible to review. It can however be reviewed by the labour court but not often. If
her dismissal is deemed unfair then the maximum amount of one year's salary can
be compensated.4
1.4 Determining Gabi's chances of success should she challenge the fairness of her
dismissal is based on a two-step process.
The LRA states that if a work rule is broken it is grounds for dismissal of misconduct
therefore to establish that Gabi's dismissal was not fair the following needs to
proceed.5
“Step 1. To determine whether the was a dismissal
Step 2. Determine whether the dismissal was fair and whether the correct procedure was
followed.”6
1
McGregor M & Dekker AH Rules 176.
2
McGregor M & Dekker AH Rules 195.
3
McGregor M & Dekker AH Rules 181.
4
McGregor M & Dekker AH Rules 175.
5
McGregor M & Dekker AH Rules 167.
6
McGregor M & Dekker AH Rules 147.
Page 2 of 5
