MRL 3702 portifolio-exam-questions-and-answers.

BLOCK 1 The following questions are compiled from the modules covered in block one. MODULE ONE Questions (a) The common law contract of employment has often been described as a recipe for exploitation. What view is this based on? Early employment contracts and statutes were referred to as “Master and Servant’ laws, and although they imposed legal obligations on both employer and employee, with criminal penalties for default, they were heavily weighted in favour of the employer. The very nature of the terms, ‘Master’ and ‘Servant,’ gives credence to this. Worldwide labour law transpired as both common law, and the law of contract, had shortcomings in that the playing field and balance of power was too in favour of the employer. Additionally there was a need to incorporate certain human rights that came into effect as countries developed constitutions. This unbalanced situation meant that employers could exploit the employee in a number of areas and thus the shortcomings of common law and contract law meant that employees could be exploited in a number of ways, the following of which would be the most evident: • In the absence of minimum wage agreements, employers would be able to grossly under pay and exploit this, as the prospective employee, who in desperate need for work, would be “forced” to accept the rates on offer. The desperate need for employment affects the very core of supply and demand economic principles, thus favouring the employer rather dramatically. • The common law simply infers rights and obligations on the employee, the manner of discharging these obligations, very much controlled by the employer. With no regulation of working hours the employee would literally be a ‘slave.’ And exploitation would be rife. • The common law fails to give employees legal rights to demand better working conditions and the very nature of freedom to contract rights, does not discourage exploitation. • Most significantly, the common law provides no effective protection against termination of services and thus job security is essentially obliterated. The very nature of the law of contract would allow an employer to terminate the contract immediately for just about any breach, and the employee would have no recourse to a remedy. (b) Given that most aspects of the employment relationship (e.g. hours of work, sick leave, protection against unfair dismissal etc.) are now regulated by statute, is there any point to entering into a detailed written contract of employment? lOMoARcPSD| MRL 3702 portifolio-exam-questions-and-answers. Page 3 of 64 Although there is a plethora of statutes and legislation governing or determining the employment relationship, the very nature of the workplace environment requires flexibility. Hence legislation protects the employee from exploitation, by entrenching basic rights and obligations, but by the same token offers the employer the option to structure the workplace terms and conditions in order to have an effective and productive business. Thus a contract of employment avoids vagueness, ambiguity and confusion by addressing issues that are not defined or set in stone by legislation. This in turn attempts to avoid parties from being in a continual state of dispute, which would be disruptive to the work environment. Importantly, the very rights inferred by the various statutes and legislation, only apply to the parties to an employment contract, that being the employee and employer. (c) Name three kinds of dispute in which the terms of the individual contract of service may be legally relevant. • Restraint of trade • Share Options • Relocation costs MODULE TWO Questions (a) In what respects has the BCEA limited the contractual freedom of employers and employees? The BCEA sets forth a minimum standard on a number of key issues relating to the employment relationship. The contractual freedom is impeded in that only terms or conditions that is more favourable than those laid down in the BCEA can supersede the BCEA. So although an employee or potential employee might be willing to accept terms or conditions that are less favourable than those laid down in the BCEA, it is not permissible to contract outside of the law and this may render the contract void. (b) May an employer make an applicant’s undertaking that he will not claim pay if he is off sick a condition of appointment? No. The pay for sick leave may however be reduced by agreement provided that the number of days allowed is increased commensurately. In addition the days wage must be at least 75% of the wage ordinarily payable had the employee worked on that day. Not withstanding the above the employee is bound by the BCEA as well as individual companies Policies and Procedures whereby the failure to observe certain procedures would effectively mean the forfeiting of the right to payment, lOMoARcPSD| Page 4 of 64 e.g., where the employee fails to provide a sick certificate after two days absence (c) What remedies are available to an applicant for employment if an employer insists that he should work hours longer than those permitted by the BCEA? The first issue is if an applicant for employment is an employee and therefore entitled to rights under the act. Section 79(1) expressly widens the definition of “employee” to include applicants for employment, thus all rights inferred under Part C, relating to the protection of employees against discrimination, are applicable to applicants for employment. Where an employer is insisting an employee to work longer hours than those permitted by the BCEA, and the employee would probably refuse to take up employment, said employee could turn to the CCMA or a Council, if the parties are in the registered scope of that council. The employee would seek to exercise their rights as inferred by subsection 2(c) (i); Prejudice an employee because of a past, present or anticipatedFailure or refusal to do anything that an employer may not lawfully permit or require an employee to do; The employee can further invoke subsection 3, No person may favour, or promise to favour, an employee in exchange for the employee not exercising a right conferred by this part……….. These two sections read together would give the employee the right to refer a dispute for conciliation, should the dispute remain unresolved it may be referred to the labour court for adjudication. Does the employee have the right to strike, as this matter cannot be referred for arbitration??? (d) Which basic conditions of employment may be changed by individual agreement? Individuals may agree to certain variations on the BCEA. Where there is a collective agreement however that would supersede the individual agreement. The following are terms and conditions of an individual contract that may be altered by a written agreement: • Extension of ordinary hours where employees serve the public • Paid leave in lieu of overtime • Compressed working week • Reduction or suspension of meal intervals • Reduction in daily rest periods, where employee resides on premises • Reduction in weekly rest periods • Time off in lieu of Sunday work (e) Which basic conditions of employment may be changed by collective agreement? Collective agreements can be concluded in two spheres, within the scope of a bargaining council or concluded between a majority union and the employer or employer’s organization. lOMoARcPSD| Page 5 of 64 Collective agreements concluded become implied terms of the employment contract. There is some margin for problems in that s199 implies that the employee may not be granted a term that is less favourable than a collective agreement while s23 (3) says the employment contract is altered by the collective agreement. As an e.g., an employee is earning R12000 and a collective agreement determines that that grade must have a R10000 salary. Alternatively said employee is entitled to four weeks annual leave and a collective agreement is concluded limiting leave to three weeks. A collective agreement concluded in a bargaining council may alter, replace or exclude any basic condition provided that it is consistent with the intentions of the Act and does not: • Reduce protection concerning working time regulations and maximum daily, and weekly hours, • Reduce protection regarding hours duly related to health and safety, • Reduce protections regarding night work, • Reduce annual leave to less than two weeks • Reduce entitlement to maternity or sick leave • Conflict with provisions related to child and forced labour. • Alter any statutory rights such as Freedom of Association. Collective agreements concluded outside of a bargaining council may regulate any of the conditions that an individual may agree to, (see question (d) above), or • Averaging of hours • Number of days and conditions allowed for family responsibility. MODULE THREE Questions (a) Anne, a marketing representative, objects when her employer appoints his son-in-law to the post of marketing director. She says she is far better qualified than he. Will she succeed with a claim in terms of the EEA? In numerous cases the courts have ruled that a person is better qualified does not entitle them to a position, in fact from an EEA perspective the act only requires that a person is sufficiently or suitably qualified Anne will only have recourse should she be able to prove that she was overlooked because she is female, that however is an unfair labour practice and hence her claim is strictly speaking not in terms of the EEA. (b) On what grounds may an employer prove that discrimination on these grounds is in fact fair?