mrl3702-exam-pack-labour-law with 3 full exams with a grade of A+

(a) Acquisition of organisational rights 1. THROUGH COLLECTIVE AGREEMENT This can be the case even for trade unions that are not representative 2. MEMBERSHIP OF A BARGAINING COUNCIL A registered trade union that is a party to a bargaining council automatically has the right of access to the premises and to deduct fees in respect of all those workplaces falling under the bargaining council. A union acquires these rights irrespective of being representative or not. 3. STRIKE ACTION A union may strike to achieve these rights even if they don’t meet the minimum requirements 4. SECTION 21 PROCEDURE This requires that the union notifies the employer in writing that it seeks to exercise its organisational rights. Within 30 days they must meet to conclude a collective agreement. If they do not conclude then either party can refer the dispute to the CCMA for conciliation. If no conciliation reached, then the parties can process to arbitration or alternatively strike / lock-out after serving appropriate notice. (b) Vicarious liability refers to a situation where someone is held responsible for the actions or omissions of another person. In a workplace context, an employer can be liable for the acts or omissions of its employees, provided it can be shown that they took place in the course of their employment. There are three common law requirements to determine the vicarious liability of an employer in standard matters, namely: 1. An employer-employee relationship must be established; 2. A wrongful act must have been committed by an employee; and 3. The employee must have committed the wrongful act whilst acting within the course and scope of his/her employment. lOMoARcPSD|725 737 3 (c) Common law duties and obligations of employees include: To enter and remain in service To maintain reasonable efficiency To further the employee’s business interests To be respectful and obedient To refrain from misconduct generally. (d) Section 188 of the Labour Relations Act provides that dismissal is fair if the employer can prove that the dismissal is related to the employee’s conduct or capacity, or if it can be proven that the dismissal is based on the employer’s operational requirements. Dismissal is usually fair if a fair procedure was followed. Good practices are set out in legislation which outlines the discharge processes and must be taken into account. (e) Selective re-employment: An employer who dismissed a number of employees for the same or similar reasons has offered to reemploy a one or more of them but has refused to re-employ another. (a) (i) Dismissal for operational requirements Operational requirements are defined in the LRA which names four broad categories: Economic needs Technological needs Structural needs Similar needs which include: The employee’s conduct has led to a breakdown of trust in the relationship The employee’s actions or presence have a negative effect on the business The enterprise business conditions have changed resulting in a requirement to change the employee’s terms and conditions of employment. lOMoARcPSD|725 737 3 (ii) Seniority / FIFO (first in first out) United People’s Union of SA: a union whose majority members were people who’d recently started to work for employer suggested that longer serving employees should be first to be selected for retrenchment = held: unacceptable criterion LIFO /Last in Last Out Amalgamated Workers Union of SA: Catering contractor lost one of its contracts + had to retrenchemployees alleged dismissals were unfair because other shorter-serviced employees remained working on other contracts = held: due to practice + nature of industry, detrimental effect bumping would have on clients, special knowledge employees had of clients they worked for, frequency of changes, necessity of training and disruptive effect bumping would have had on operations – dismissals were fair (b) Resignation (by notice / summarily) is not entirely voluntary because it was caused by the acts / omissions of employer. Resignation in these circumstances actually dismissal by employer. In Pretoria Society for the Care of the Retarded: Labour Appeal Court: must be established that employer acted in a way that would / would be likely to destroy / seriously damage confidence + trust relationship btw the parties. Court must determine if employee cannot be expected to put up with conduct of the employer as a whole Constructive dismissal took place if employer intended to drive employee to resign: A unilateral change to COE which employee claimed was racial was not unfair / unreasonable since employer had adequately consulted with employee about new appointment + changes - There was no coercion by employer to drive employee to leave. (c) Termination due to insolvency of the employer Insolvency results in the following: The contract is suspended from the date of sequestration for 45 days after the appointment of a trustee Under certain circumstances the employment contract may be terminated by the trustee or liquidator The employee need not render services The employee is entitled to severance pay and to claim damages suffered due to termination. (d) Section 79 of the LRA sets out four “general functions” of a workplace forum as follows: • To seek to promote the interests of all employees in the workplace whether or not they are trade union members; • To seek to enhance efficiency in the workplace; • To be consulted by the employer, with a view to reaching consensus, about the matters referred to in section 84; • To participate in joint decision-making about the matters referred to in s86.