OCTOBER/NOVEMBER 2020

MRL3702 LABOUR LAW

100 marks
24 Hours Portfolio Examination

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ANNEXURE A PLAGIARISM DECLARATION

Student name: Ongeziwe Ngetu

Student number: 61136905
Course code: MRL3702

I know that plagiarism is to use another’s work and pass it off as one’s own work. I know
that plagiarism is wrong. I confirm that this portfolio is my own work. I have acknowledged
all sources that I have used. I have not directly copied anything from the internet or from
any other source. I have indicated every quotation and citation in a footnote or bracket
linked to that quotation. I have not allowed anyone else to copy my work so as to pass it
off as their work. I understand that if any unacknowledged copying whatsoever appears in
my portfolio, I will receive 0% for the portfolio. I am aware of the UNISA policy on
plagiarism and understand that disciplinary proceedings can be instituted against me by
UNISA if I contravene this policy.

Signed by ……………………………………….
Date: 12 November 2020

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QUESTION 1:

1.1)
i. It is difficult to distinguish between employees and independent contractors.
However, section 213 of the Labour Relations Act (LRA) defined an employee as
any person who works for another person or for the State and who receives or is
entitled to receive any remuneration. Whilst an independent contractor (excluded
from labour legislation) is contracted to perform a specified task or produce a
specific result. An employee renders services in terms of a job description and
works in terms of an employment contract and normally someone who is an
employee in terms of such a contract is not allowed to work for anyone else.
Therefore, Moji is an independent contractor in both these establishments as his
business is of specified work in building, installing and maintaining security features.
There is no type of contract specified in the scenario however, the fact that he is
able to work for more than one employer indicates that he is not an employee under
an employment contract.

Our courts have formulated a number of tests for drawing a distinction between an
employee and an independent contractor. The considerations which contribute
towards indicating whether a contract is of employment or of an independent
contractor in the test for dominant impression were discussed in the case of
Medical Association South Africa v Minister of Health & Another. One of the factors
the court would take into consideration to obtain dominant impression includes
whether the worker is obliged to perform his/her duties personally. The LRA added
the Code of Good Practices and in terms of item 36 of the Code, the employee is
required to perform the service personally unless the contract expressly provides
otherwise. A contractual provision requiring a contractor to perform personally does
not always mean there is a relationship of employment. Moji is an independent
contractor at OR International Airport therefore, in the case of such a contract it
does not matter who does the work as long as the job is done. In the event that it
was expressed in the set of facts that the contract between OR and Moji requires
him to personal;ly perform the service then Mr Katsande's demand would be legally
correct.
 The LRA and Basic Conditions of Employment Act (BCEA) do not apply to
independent contractors however, independent contractors do enjoy general
protections against contractual breach and common law unlawful termination. An
employee will be subject to the employer's workplace rules and regulations as well
as the disciplinary actions in the event the employer's rules are breached. As an
independent contractor, Moji will not be subject to discipline by Mr Katsande
because he (Moji) is not subject to labour legislation.

1.2)
Section 6(4) of the Employment Equity Act (EEA) often referred to as the 'equal pay'
provision prohibits unfair discrimination in terms and conditions of employment
between employees of the same employer performing the same work. Employees
are tasked to eliminate any unfair discrimination in the context of pay differences in
the workplace. The employer must ensure that the pay differentials between
employees are not due to any of the factors listed in section 6(1) of the EEA.
Meaning that the pay difference should not be biased on the basis of race, gender
or disability. An employee who seeks to prove unfair discrimination in respect of
remuneration must compare their position to that of another employee within the
same employer. In the set of facts Finky and Hendriet do the same work for the
same amount of shift hours and are the same age therefore Hendriet could be
successful in a claim of unfair discrimination.

Regulation 7 provides defences available to employers against equal pay

discrimination claims as it justifies differences in remuneration. An employer's
defence rests on two facts: 1) their conduct must be fair and rational and 2) the
employer needs to show that atleast one of the factors between a-g of Regulation 7
applies to their defence. One of the defences under regulation 7 is seniority and
length of service,. Although Finky and Hendriet do the same work and have the
same qualifications, PSA can justify fairness of the pay difference based on this fact
as Finky has worked for the company longer than Hendriet has.

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QUESTION 2:

2.1)
i. Incapacity refers to the ability to do the job rather than blameworthy conduct
and is regulated by section 188 of the LRA. There are two formd of incapacity
recognised by the Code of Good Practice in Schedule 8 LRA, they are:
(1) Poor work performance
(2) Ill health/ Injury
Poor work performance is where the employee cannot do the work due to having
necessary skills/ability to do the work. Eva is accused of this nature of incapacity
(poor work performance) as her arrest for breaking COVID19 regulations resulted in
her inability to do her work and she failed to meet her agreed sales target.

Section 192 of the LRA provides that the onus is on the employee to prove on a
balance of probabilities that the dismissal is due to incapability by meeting the
following requirements for substantive fairness:
– whether or not the employee failed to meet a performance standard
– whether the employee was aware of the performance standard required or
could reasonably expected to have had known
– whether the employee was given a fair opportunity to meet the required
performance standard
– whether dismissal was an appropriate sanction

As a dismissal needs to be both substantially and procedurally fair, item 8(2)-(4) of

the Code provides the requirement s for the procedural fairness in poor work
performance after probation as:
– appraisal/investigation to establish the reason for unsatisfactory performance
– counselling and assistance
– reasonable time to improve
– incapacity inquiry

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 An employer should be careful when considering dismissal of the employee for poor
work performance and should rather consider other ways short of dismissal to
remedy the matter. Eva's dismissal was not fair as the employer dismissed her
without complying with any of the requirements set to render the dismissal
substantially and procedurally fair. The employer did not seek to establish the
reason for unsatisfactory performance nor give Eva a fair opportunity to improve or
be heard in an incapacity inquiry amongst other requirements. Eva can dispute the
dismissal as ist is an unfair dismissal. She must within 30 days of the dismissal refer
the dispute for conciliation to a bargaining council/CCMA. If conciliation is
successful, the matter will be resolved if it is unsuccessful it will be set down for
arbitration at a bargaining council/CCMA.

QUESTION 3:

3.1) Freedom of association is one of the principles of labour law and is reflected in the
LRA and the Constitution. The right to freedom of association is protected in terms of
section 18 and section 23 of the Constitution and an employer may not infringe it. Section
4-10 of the LRA give effect to section 23 of the Constitution by providing for the right top
freedom and association and prohibits its infringement.

The facts in the scenario are more or less the same as those in the case of Independent
Municipal and Allied Trade Union v Rusternburg Transitional Council where the employer
held that the employees in senior management positions would not be permitted to serve
in executive positions in trade unions or be involved in trade unions. Section 5(2)(a) of the
LRA also provides that no person may require an employee to give up membership of a
trade union. Based on these reason GG cannot force Melisa to terminate her membership
with TEA regardless of her new position.

3.2) The deduction of subscriptions is collecting the membership fees from trade
union members as these fees become a source of income for trade unions. Section 13 of
the LRA gives trade unions that are registered the right to deduct the membership
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subscriptions from union members as collecting these fees can be a difficult task. Stop-
order facilities are used in terms of which an employer will deduct the fees from the
member's wages and pay the union on a regular lump sum basis. Members can authorize
their employer to do this in writing. The employer must make the deduction soon after
receiving authorisation from the employee and pay the union on or before the 15 th day of
the following month.

3.3) Organisational rights and the right to freedom of association are important as
they make the process of collective bargaining possible. There is no legally enforced duty
to bargain recognised under South African law or the LRA and it was held in the cases of
South African National Defence Union v Minister of Defence & Others that a trade union
cannot approach the Labour Court in order to compel the employer to bargain with it.
Section 23(5) of the Constitution allows trade unions like RWA the right to engage in
collective bargaining however, this does not judicially enforce an obligation on LLC (the
employer) to bargain.

The LRA firmly supports collective bargaining as a mechanism for regulating terms and
conditions of employment and resolving disputes. The act encourages and promotes
collective bargaining through the following:

• providing effective protection of the right of employees to form, join and participate
in the activities of trade unions;

• enabling trade unions to obtain organisational rights which enhance their position
in the workplace, thereby making it easier for trade unions to persuade or force an
employer to bargain collectively with it;

• permitting employees to strike in an attempt to force an employer to bargain

collectively with it;

• regulating the legal status and enforceability of the product of collective

bargaining, namely collective agreements, thus making collective bargaining more
effective.

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QUESTION 4:

4.1) BMA need not comply with procedural requirements set by the LRA under these
circumstances:

1) If the parties to the dispute are members of a council and the dispute has been
dealt with by that council in accordance with its constitution.

2) If parties entered into a collective agreement in terms of which they agree that
certain dispute resolution procedures have to be followed prior to a strike or lock-out
being called.

3) If an employer embarks on a lock-out that is not protected in terms of the LRA,

its employees will be able to strike in response to that unprotected lock-out without
complying with the procedures set out in section 64. By the same token, if
employees embark on an unprotected strike, an employer will also be able to
respond by means of an automatically protected lock-out, despite the fact that the
employer has not complied with the provisions of section 64.

4) If an employer has unilaterally introduced changes to the terms and conditions of

employment of employee or intends or proposes to do so.

4.2) Section 68(5) of the LRA provides that participation in an unprotected strike
constitutes a fair reason for dismissal. The dismissal of employees who participate in an
unprotected strike not necessarily fair. Fairness of such dismissals can be evaluated b7y
taking into account the provisions of the Code contained in schedule 8 of the LRA.

The substantive fairness of the dismissal must be determined in the following factors:

- the seriousness of the contravention of the Act

- attempts made to comply with this Act

- whether or not the strike was in response to unjustified conduct by the employer.
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The procedural fairness of the dismissal must be determined in consideration of the
following factors:

- at the earliest opportunity, the employer must contact a trade union official to
discuss the course of action it intends to adopt.

- The employer should issue an ultimatum communicated in a language that is

understood by the strikers that should state what is required of the employees and
what sanction will be imposed if they do not comply with the ultimatum. The
employees should be allowed sufficient time to reflect on the ultimatum and give a
response of whether they agree to it or reject it.

Ensuring that their dismissal is both substantially and procedurally fair according the above
requirement, Employer B's dismissal of the strikers will be fair.