2022 OCTOBER EXAM SOLUTIONS - Labour Law (MRL3702)

QUESTION 1 Nhlana Attorneys & Associates (NAA) runs a law firm in the East Rand which is part of Gauteng Province. It has three candidate attorneys, Kryshna, Thandi and Piet. In the first quarter of 2022, Kryshna and Thandi fell pregnant and subsequently took maternity leave towards the end of the third quarter of 2022. Effectively, by the 1st of October 2022, NAA had only Piet as the candidate attorney and thus he had to carry by himself the entire workload meant for all candidate attorneys. Practically, Piet was able to manage the workload alone for the duration of Kryshna and Thandi’s maternity leave so much that NAA decided to terminate the services of both Kryshna and Thandi as it believes that keeping them is costly, particularly, because of their absence due to maternity leave. When Kryshna and Thandi received the news of the abrupt termination of their contracts of employment on the 30th of December 2022, they got worried and sought legal advice. Answer the following questions: (a) (i) With reference to the applicable legal authority, explain what the conduct of NAA towards both Kryshna and Thandi amounts to? (5) (ii) Define the concept you mentioned as the answer to question (a)(i) above. (8) (iii) What would be the possible remedies for Kryshna and Thandi should they decide to refer their case to the CCMA? (6) (b) Distinguish between the contemporaneous and historical inconsistencies insofar as the employer’s disciplinary power over its employees is concerned. (6) [25] QUESTION 2 Sbu-On-the-Wireless (SOW) employs a hundred employees, half of whom are males, and another half are females. The main business of SOW is advertising, news reading, talk shows and entertainment. In line with the affirmative action goals set out in the EEA, all the designated employers must develop an employment equity plan to ensure equality in the workplace. Answer the following questions: 8 MRL3702 October/November 2022 (a) (i) Who are ‘designated employers’ for the purpose of affirmative action? (10) (ii) Does SOW fit the description of the designated employer and why? (2) (iii) Distinguish between the formal approach to equality and the substantive approach to equality? (6) (b) Assume that Angela, a very experienced newsreader, retires and, in her place, SOW puts, Chantel, a new graduate from UNISA with no experience, but on the terms and conditions that are more lucrative than Albert and 20 other employees with comparably the same experience as Angela. When asked why experienced employees were ignored over Chantel, SOW simply stated that, ‘she is young and has a future ahead of her’. Albert and others think that SOW’s conduct amounts to a prohibited and unfair ‘employment practice or policy’. Which ‘employment practices or policies’ are regarded as unfair and prohibited against the employees in terms of the EEA? (7) [25] QUESTION 3 The LRA makes provision for organisational rights to enable the trade union to engage effectively in collective bargaining with the employer. Amongst organisational rights, there is the right of disclosure of information. Kanana Workers Union (KWU) is a newly found trade union which represents employees at Primary Food SA (Pty) Ltd (PFSA). KWU accuses PFSA of refusing to bargain with it. Answer the following questions: (a) Which conducts by the employer amount to a refusal to bargain in terms of the LRA. (10) (b) Discuss the circumstances under which certain information cannot be disclosed or withheld by the employer for the purposes of bargaining. (8) (c) Discuss the ways in which a trade union may acquire organisational rights? (6) (d) What is the primary goal of collective bargaining? (1) [25] 9 MRL3702 October/November 2022 QUESTION 4 Amandanis Aero (Pty) Ltd (AA) and Workers Union (WU) have reached a stalemate during wage negotiations. WU demanded a 7% wage increase across the board, whilst AA offered 3%. On the one hand, in support of its wage increase demand, WU mentioned the high food and fuel prices. WU further argued that the employer’s offer was way less than the consumer price index (the CPI). On the other hand, the employer baldly argued affordability as its challenge, but refused to share the business financial statements. WU condemned AA’s approach as egocentric and in bad faith towards the toiling employees. Answer the following questions: (a) With reference to the relevant legal authority, discuss whether South African labour law requires parties to bargain in good faith? (8) (b) Assume that, in retaliation to what they call bad faith bargaining by the employer, WU members continue to work at a slow pace daily. With reference to the relevant legal authority, discuss whether WU’s slow-paced strategy amounts to a strike? (5) (c) Discuss instances under which WU employees may not be allowed to strike? (12) [25]