MRL3702 Exam Pack

Oct / Nov 2015 QUESTION 1 a) Formal equality focuses on protecting individuals against discrimination. It views individual ability and performance as the only factors relevant for achieving success in society. b) Temporary/contract employees employed for a specific period or for a specific project (example seasonal harvesting or a one off census project) instead of employing employees on a permanent basis. These employees are recognised and protected according to the LRA, BCEA, EEA and SDA. c) This duty is captured by the constitutional right to fair labour practices in section 23 of the Constitution. The LRA protects employees against unfair treatment during the time of employment (unfair labour practices) and against unfair dismissal. This duty is wide enough to include other common law duties such as the duty to receive the employee into service and to comply with other statutory obligations. d) Section 186(1)(e) provides that, “Where 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.” Copeland and New Dawn Prophesy Business Solutions (Pty) Ltd The court held that an employee alleging constructive dismissal has to show: “…convincingly that his resignation…came about as a consequence of the employer being the “villain” in the employment scenario who made the employment relationship “intolerable” to him, to such an extent that he finally in desperation, having exhausted all internal mechanisms of the employer available to him, was left with no other viable alternative but to resign” The court made it clear that the following three elements must be present to succeed in a claim of unfair dismissal:  the employee must show that he/she has resigned  the employee must show that the reason for the resignation was that continued employment become intolerable, and  the employee must show that it was the employer’s conduct that created the intolerable circumstances Albany Bakeries Ltd v Van Wyk and others The employee resigned after he had been demoted. The court held that, under the circumstances, the demotion did not make employment intolerable MRL3702 Exam Pack 2 e) The EEA does not expressly regulate equal pay for equal work. However, the Labour Court has held that remuneration is an employment policy or practice. Paying an employee less than another performing the same or similar work based on an unspecified ground constitutes less favourable treatment Therefore any claim of equal pay for work that is the same or similar can be brought in terms of the EEA. The same principle applies with regards to equal pay for work of equal value Mangena & others v Fila South Africa (Pty) Ltd & others Shabalala (a black male employee) alleged that he was paid less than McMullin (a white female coemployee) for doing the same work based on race The court took into account ILO Convention 100 on equal pay between sexes and extended it to include other specified or unspecified grounds such as race However no factual foundation was laid down in relation to the similarities of the work done by Shabalala and McMullin In fact Shabalala’s allegations were found to be speculative He was an administrative clerk providing price stickers, en elementary mechanical job McMullin on the other hand did a sale-on-consignment job involving large clients Her job required judging and taking decisions Shabalala thus failed to establish a prima facie case An attempt at an alternative claim based on work of equal value was held to be misplaced f) Affirmative action measures apply only to suitably qualified people from designated groups. Designated groups are black people (meaning African, Coloured and Indian people), women and people with disabilities. In terms of a recent decision “black people” also include Chinese people. A member of a designated group must be “suitably qualified” to benefit from affirmative action. “Suitably qualified” means that the person has one of the following four:  formal qualifications;  prior learning;  relevant experience; or  the capacity to acquire, within a reasonable time, the ability to do the job. g) A small employer employs a small number of employees. h) Maximum of 45 hours a week. If an employee works 5 days a week or less, he/she may not work more than 9 hours a day. If an employee works 6 days a week, he or she may not work not more than 8 hours a day (these hours include an hour lunch break). i) The purpose of a restraint-of-trade agreement is to protect the employer’s trade secrets, goodwill and business connections. It prevents the employee from competing with his or her employer within a defined area and for a prescribed period. In determining whether a restraintof-trade is enforceable, a court will balance the following; 3 The public interest, which requires parties to comply with contractual obligations even if these are unreasonable or unfair VS The right of all persons to be permitted as far as possible to engage in commerce or the professions of their own choice. Questions to determine reasonableness:  Is there and interest deserving of protection at the termination of the agreement?  Is that being prejudiced?  If so, how does that interest weigh up against the interests of the other party not to work?  Is there another facet of public policy apart from the relationship between the parties, which requires that the restraint should either be enforced or disallowed?  Is the restraint wider than is necessary to protect the protectable interest? j) ‘Lock out’ is defined as the exclusion by an employer of employee from the employer’s workplace, for the purpose of compelling the employees to accept the demand in respect of any matter of mutual interest between the employer and employee, whether or not the employer breaches those employee’s contracts of employment in the course of or for the purpose of that exclusion’ QUESTION 2 a) i. Economic needs because Seane (Pty) Ltd encountered financial difficulties. ii. Yes. As long as fairness and procedures in terms of the LRA are followed. iii. LIFO and FIFO are procedural methods that are used to determine whether an employer used fair and objective selection criteria in dismissing employees based on operational reasons. LIFO means last in, first out FIFO means first in, first out b) Absent without leave (AWOL) is when an employee does not want to terminate the employment contract, but stays away from work without leave. AWOL warrants dismissal if the period of absence is unreasonably long. Provided the employee returns a few days with a latter to show that he/she had a reason for the absence eg having been hospitalised or imprisoned, a dismissal will not be appropriate. Desertion involves the employee, without resigning, stays away from work with the intention of terminating the contract of employment. The employer must terminate the employment contract by holding a disciplinary hearing in the absence of the employee. If the employee returns after dismissal, the employer must give him/her an opportunity to be heard. c) Hamba Boya Hotel may fairly dismiss Abraham based dishonesty. A general principle holds that dishonesty caused by an employee harm the relationship of trust and confidence between the employer and employee, and it would be fair to dismiss such a dishonest employee. The employment contract between Hamba Boya Hotel and Abraham was influenced by the latter’s 4 misrepresentation that he was a holder of an MBA degree yet he was not. In other words there was no consensus from the start. It is clear that the employer suffered a loss as a result of such misrepresentation that is through wages and benefits that would not have accrued to Abraham. The employer obviously would not have hired him from the start if they were aware that he had not completed the MBA degree. QUESTION 3 a) Neither the Constitution nor the LRA defines ‘collective bargaining’ but it is generally held to be negotiations between parties with the view to listen and consider the views of others in order to find common ground. Through collective bargaining parties (trade unions and employers/employers’ organisations) with different views and desires are able to reach agreement on a variety of issues. It is called collective bargaining because employees, collectively, represented by a trade union, and not as individuals, negotiate with the employer. The duty to bargain Although section 23(5) of the Constitution provides for the right to collective bargaining, this does not mean that there is a duty on employers to bargain with employees, or employees with employers. The LRA encourages collective bargaining by granting organisational rights and by allowing union security arrangements. The refusal to bargain can result in industrial action by employees in order to convince the employer to bargain. Employees organise themselves into trade unions which represent them during bargaining. A trade union is defined as an association of employees whose principal purpose is to regulate the relations between employers or employers’ organisations and employees. A single employer can engage in collective bargaining with a trade union, or employers may form an employer’s organisation which will serve as bargaining agent. Trade unions and employers’ organisations may together form bargaining councils. Three main functions of bargaining councils in terms of section 28 of the LRA; • to conclude collective agreements • to enforce those collective agreements • to prevent and resolve labour disputes Bargaining can take place on the following levels: Plant level - this takes place between the employees and the employer for/in a specific plant or factory. Sector level - this takes place in a specific sector of the economy in a specific geographical area. Industry level - this is bargaining for a whole industry, e.g. mining b) Main goal is to reach consensus on issues and formalise their relationship via a collective agreements. The LRA has a collective agreement as a written agreement concerning terms and conditions of employment or any other matter of mutual interest concluded between one or more registered trade unions on the one hand and one or more employers or employers’ organisations on the other. Three important elements define a collective agreement compared to other employer /ee relationships;