Labour Law Assignment

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Contents Page Page
1. Cover Page…………………………………………………………………………………….…1
2. Contents Page…………………………………………………………….……………………...2
3. Question 1……………………………………………………………………………………...3-5
4. Question 2………………………………………………………………………………………6-8
5. Question 3…………………………………………………………………………………….9-11
6. Question 4…………………………………………………………………………...………12-17
7. Question 5……………………………………………………………………………...……18-20
8. Bibliography/Reference List……………………………………………………………………21
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Question 1
Q.1.1)
Until the development of labour law, the only source of an employees and employer's rights and
obligations was the individual contract into which they had agreed.1 The parties were free to agree
to any terms and conditions they wanted, subject only to the requirements of the law and good
morals. While the contract was still in effect, the rules for resolving disputes were derived from
the agreement, as construed pursuant to common-law principles.2 Once the details of the
agreement were agreed upon, neither party could unilaterally change them. This constituted a
repudiation of the contract, which the offended party had the option of accepting and claiming
damages, or rejecting and suing for specific performance.3
With the introduction of various labour statutes, this scenario has changed.4 To begin, collective
agreements promulgated under the Industrial Conciliation Act were given legal force, and
employees and employers who were not exempted from these agreements were bound by them
and prohibited from entering into service contracts that were less favourable to the employee than
the applicable collective agreement. Wage determinations issued in accordance with the Wage
Act have the same effect.5
The BCEA of 1983 further restricted the parties' contractual freedom. The Act required that all
employment contracts meet certain minimal standards. It was a criminal offence to agree to terms
that were less favourable than those prescribed by the Act.6
The LRA of 1956 gave collective agreements negotiated by industrial council’s statutory force.
They gained precedence over the BCEA's minimum standards.7 Furthermore, under its unfair
labour practice jurisdiction, the industrial court enforced non-statutory collective agreements
between employers and trade unions. All collective agreements have statutory force under the
present LRA.8 Furthermore, regardless of whether the parties have agreed to them, the LRA gives
a range of collective and individual employment rights. Individual employees are entitled to alter
an even more limited set of employment rights under the current BCEA, which allows registered
trade unions and employers to vary certain baseline conditions and standards through collective
agreements.9 To a limited extent, collective agreements and individual employment contracts may
replace the statutory minimum requirements.10
Many labour statutes authorise the Minster of Labour to issue "codes of good practice" that bind
employers. Although these codes are intended to serve as guides, they have a quasi-statutory
effect because courts and the CCMA are compelled to consider them when resolving disputes.
Schedule 8 of the LRA was the first such code, and it established criteria for dismissals for
1
Grogan, J. Workplace Law 13th ed (2022) 8-9.
2
Grogan, J. Workplace Law 8-9.
3
4
5
6
7
8
9
10
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misconduct, poor work performance, and incapacity.11 Rules on dismissal for operational
requirements and workplace harassment have since been produced, as have codes on
employment equity, working hour control, picketing, and a variety of other issues.12
Aside from that, the common law applies to the extent that it has not been superseded by
legislation.13
The above overview of the main labour Laws will show that it is not always easy to locate the
rules that apply to certain disputes. Ministerial rules established in accordance with the various
Acts, which may supplement or, in certain situations, supersede legislative provisions, further
complicate issues.14 Furthermore, employers and trade unions may enter into collective
agreements that, once again, may overrule some statutory provisions.15
Statutes and regulations do not contain all of the rules regulating labour law. As in all areas of
law, courts and competent tribunals determine the interpretation of ambiguous or imprecise laws,
and those courts and tribunals are bound by the judgments of those higher in the judicial
hierarchy.16 Numerous labour law concepts have been developed and established by judicial
pronouncements in specific instances, and have become norms via the convention of stare
decisis. CCMA commissioners and arbitrators must follow Labour Court rulings, which must follow
precedents established by the LAC. All courts are bound by the Constitutional Court's decisions,
which have addressed labour issues in a number of significant decisions.17
Finally, since South Africa became a signatory to the International Labour Organisation (ILO) and
the Constitution requires all courts to consider international and foreign law where appropriate,
the courts have frequently relied on the pronouncements of international and foreign courts and
tribunals when confronted with novel issues.18
The following are the main sources of labour law: individual service contracts, legislation, sectoral
determinations, collective agreements, labour court guidelines, international labour standards, the
jurisprudence of foreign labour courts and tribunals, custom and practice, applicable provisions
of the Constitution, and common law.19
In labour law, it is critical to identify whether and which statutes apply to the parties in certain
disputes.20 The individual contract of service is the starting point. If the contract contains terms or
conditions that are more favourable to the employee than a sectoral determination under the Basic
Conditions of Employment Act (BCEA), if any, or the Act itself, they must be applied.21 If the
employee is a member of a union that is a signatory union to a binding collective agreement, or
even if the employee is not a member of the signatory union or has resigned from that union, the
collective agreement takes precedence over the individual contract insofar as it regulates any
11
12
13
14
15
16
17
18
19
20
21
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term or condition not addressed in or inconsistent with the contract.22 Where no applicable
collective agreement exists, sectoral determinations issued by the minister under the BCEA
override individual agreements to the degree that the individual agreements contain provisions
less favourable to employees.23 In addition, the rights granted by the BCEA and the LRA come
into play. Some rights granted by these Acts cannot be waived by individual or collective
agreement. If an individual contract, a collective agreement, a sectoral determination, or a statute
does not address the matter, custom and practice in the industry or trade in question, as construed
in light of the Constitution, may apply.24
In this particular situation, the collective agreement holds greater importance and is given priority.
As mentioned earlier, in the event that an employee belongs to a union that has signed a binding
collective agreement, said agreement takes priority over their individual contract when it comes
to regulating any term or condition that has not been addressed or is inconsistent with the contract.
As per the collective agreement, the employees are eligible for 25 days of annual leave.
Q.1.2)
No, my answer above would not be different. As sated above, where no applicable collective
agreement exists, sectoral determinations issued by the minister under the BCEA override
individual agreements to the degree that the individual agreements contain provisions less
favourable to employees.25 As there is a collective agreement in place, the sectoral determination
is not given priority. Therefore, the employees are still eligible for 25 days of annual leave.
22
23
24
25
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Question 2
Q.2.1)
The BCEA and LRA define an employee as any person, excluding an independent contractor,
who works for another person or the State and receives or is entitled to receive remuneration.26
An employee is also defined as any other person who supports an employer in carrying on or
running its business.27
It is crucial to notice that this concept generates many of the same difficulties as common law.
The courts have frequently wrestled with the challenge of distinguishing between independent
contractors and those entitled to remuneration or someone supporting an employer in doing its
business.28 They have mainly focused on para (a) of the term, attempting to differentiate between
employees' proper and independent contractors. Yet, as the courts have emphasised, para (b) is
equally important and certainly broadens the scope significantly.29
The legislature has attempted to aid the courts by including deeming provisions in sections 83A
of the BCEA and 200A of the LRA.30 These sections establish a presumption that, regardless of
the form of the contract, a person who earns less than a certain amount is an employee if that
person is subject to the control or direction of another person or forms part of the employer's
organisation, or if that person has worked for the other person for an average of at least 40 hours
per month for the past three months, or is economically dependent on the other person, or works
for only one person, or if the other person provides the tools of the trade.31 These provisions
basically mimic common-law requirements, and it has been found, somewhat unhelpfully, that
they cannot be applied until an employment contract exists.32
It should be stressed that independent contractors have no employment relationship; they just
deliver a service and are paid to do so.33 In contrast to an employee, who will enter into an
employment agreement and relationship with an employer, an independent contractor is not
subject to the control and direction of the company or person to whom they are providing a
service.34 The employer determines and agrees on an employee's working hours and place, as
well as his duties and remuneration. Assessing the contractual parties' intent to begin the decision
procedure will always be vital.35
26
27
28
29
30
31
32
33
Arikum, S “Employee or independent contractor – which one am I?” October 2021 website at: https://ceosa.org.za/employee-or-
independent-contractor-which-one-am-
i/#:~:text=An%20independent%20contractor%20is%20not,and%20relationship%20with%20an%20employer. [Accessed 7th April
2023].
34
Arikum, S ‘Employee or independent contractor – which one am I’.
35
Arikum, S ‘Employee or independent contractor – which one am I’.
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Q.2.2)
In most circumstances, employers and employees may be easily identified.36 Yet, in rare
situations, it may not be immediately clear whether the parties have entered into a proper
employment contract, locatio conductio operarum, or a contract for the provision of work, locatio
conductio operis.37 Although the provision of work or services is implied by locatio conductio
operis, it is not a contract of employment. Under labour legislation, an independent contractor is
not considered an employee. Nor, for example, are partners or agents, even if one of the parties
works for the other.38
The distinction between the locatio conductio operarum and other contracts involving the
performance of work is crucial because the various forms of contract have different legal effects.39
Only employees proper are entitled to social security benefits and have access to statutory
tribunals to seek remedies for violations of their employment rights; only employers of those
employees are obliged by labour statutes and may be held vicariously liable for their
employee's actions.40 It is thus critical to distinguish between an employee and an independent
contractor because it impacts both parties' rights and obligations. A worker's classification as an
employee or an independent contractor influences their eligibility for various benefits, protections,
and legal responsibilities.41
Q.2.3)
To a significant extent, the statutory presumption replicates several tests developed by civil courts
in England and other jurisdictions, as well as in South Africa, to distinguish between the
employment contract proper and other forms of contract entailing the provision of work.42 The
control test, the organisation test, and the multiple or composite tests are the three types. The
LAC has agreed that the contract's and actual working relationship's prevailing impression is the
final detriment of the legal nature and implications of the relationship.43
The dominant impression test means exactly what it sounds like: the contract and the connection
formed on it must be analysed as a whole to decide whether the impression left seems more like
an employment relationship than something else.44
While it is impossible to compile an exhaustive list of factors to consider, the most important are
the employer's rights to choose who will do the work, the power to terminate the relationship, the
employee's obligation to work for a specific time and for specific hours, whether remuneration is
36
Grogan, J. Workplace Law 13.
37
38
39
40
41
Speller, M “Distinguishing between an employee vs an independent contractor relationship” October 2021 website at:
https://www.dmllaw.co.za/distinguishing-between-an-employee-vs-an-independent-contractor-
relationship/#:~:text=The%20distinction%20between%20the%20two,and%20when%20the%20relationship%20ceases. [Accessed
7th April].
42
43
44
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paid for time worked for a specific result, whether the employer provides the employee with tools,
equipment, and office space, and whether the employer has the rigor to do so.45
The LAC provided a useful description of the fundamental differences between the contract of
employment proper and what it dubbed the contract of work in SABC v Mckenzie.46
The purpose of locatio conductio operarum is the provision of personal services between an
employer and an employee. The employee serves at the request of the employer. The employer
may also choose whether or not to have an employee perform a service.47 The employee is
required to follow lawful and reasonable directions regarding the task to be done and how it should
be done. The locatio conductio operarum is terminated by the employee's death, and it expires at
the end of the agreed-upon period.48
In terms of locatio conductio operis, the purpose is the delivery of a certain service or the delivery
of a specific result. Unless otherwise agreed, the independent contractor is not required to
execute work personally.49 It is critical to understand that an independent contractor is obligated
to complete specified work or provide a specified product within a set or acceptable time frame.50
An independent contractor is not required to follow instructions regarding how a task should be
completed. It is vital to note that the death of the contractor does not terminate the locatio
conductio operis. Instead, it ends when the stated work is completed or the desired outcome is
produced.51
As employers increasingly use part-time and temporary workers who operate on a results basis
rather than a time basis, the courts may come to adopt a more lenient approach that takes into
consideration changing work patterns.52 But, the essential question at this point is whether a
person who works for another, places his or her productive ability at the disposal of the other
rather than simply producing a certain outcome.53
45
46
47
48
49
50
51
52
53
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Question 3
Q.3.1)
Discrimination may either be direct or indirect. Direct discrimination occurs when persons are
treated unfairly because they have one of the characteristics stated in section 6, or similar ones.
Direct discrimination is always intentional.54
Indirect discrimination, on the other hand, arises when seemingly objective or neutral barriers
exclude members of specific groups because those members are unable to overcome the
barriers.55 For instance, a height or weight criterion would eliminate all but a small percentage of
women. Indirect discrimination might be intentional or unintentional, and the employee does not
need to demonstrate prejudice or loss. Dismissing an employee for taking maternity leave was
held to be indirect discrimination, even if the employer believed it had the right to terminate her
for incapacity.56
The Constitutional Court declared in Harksen v Lane NO and Others that determining whether
differentiation amounts to unfair discrimination under section 9(3) necessitates a two-stage
analysis.57 Firstly, the court must evaluate whether the differentiation is, in fact, discriminatory.
Second, if it does, the court must evaluate whether the discrimination is unfair.58
As a result, the court differentiated between discrimination and unfair discrimination, saying that
not all forms of discrimination are unfair. When discrimination is demonstrated to be not unfair,
the legislative measure does not violate section 9(3).59
A court must first evaluate whether the differentiation represents unfair discrimination in the first
part of the two-stage analysis. Following the arguments presented in Prinsloo, Goldstone J further
subdivided the inquiry in Harksen.60 He claims that section 9(3) anticipates two types of
discrimination and that courts should treat each one differently. The first category is a distinction
based on one or more of the sixteen reasons stated in section 9(3), namely race, sex, gender,
and sexual orientation. The second category is differentiation on grounds analogous to those
mentioned in section 9(3).61
The steps in Harksen were summarized by the Court as follows: first, does the discrimination
constitute to discrimination?62 If it is based on a specific ground, discrimination has occurred. If it
is not on a specific ground, whether or not there is discrimination will be determined by whether
the ground is objectively based on attributes and characteristics that have the potential to impair
persons' fundamental human dignity as human beings or to affect them adversely in a comparably
serious manner.63
54
55
56
57
De Vos, P & Freedman, W (Eds) Boggenpoel, Z Draga, L Gevers, C Govender, K Lenaghan, P Weeks, S Namakula, C Ntlama, N
Mailula, D Moyo, K Sibanda, S Stone, L South African Constitutional Law in Context 2nd ed (2021) 545-546.
58
De Vos et al South African Constitutional Law in Context 545-546.
59
60
61
62
63
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Is it unfair discrimination if the differentiation amounts to discrimination?64 If it is discovered to be
on a certain ground, then unfairness will be presumed. If the complaint is made on an unspecified
ground, the complainant must prove unfairness. The unfairness test is primarily concerned with
the impact of discrimination on the complainant and others in his or her situation.65
In this case, the word "including" in section 6(1) shows that the listed grounds are not
exclusive and that claims of unfair discrimination may be found on other grounds as well. 66 The
addition of any arbitrary ground reinforces the prohibition of grounds other than those specified.
The Constitutional Court ruled that the grounds given out in the interim Constitution's similarly
phrased anti-discrimination provision were not exhaustive.67 However, employees who rely on an
arbitrary cause that is not listed as a prohibited ground under the EEA must be able to identify
that ground and demonstrate to the court that it is similar to one of the prohibited grounds. 68 As
earlier mentioned, if the discrimination is based on some other ground, the obligation is on the
complainant to show unfairness. But, unfairness in the sense intended by the Constitution occurs
only if the cause for the alleged discrimination is similar to or related to those stated in the
Constitution.69
The specified grounds have a common denominator in that they have been used or misused in
the past to categorise, marginalise, and oppress people who have had, or have been associated
with, these attributes or characteristics, and have the potential, when manipulated, to demean
persons in their inherent humanity and dignity.70 Employees who complain of discrimination on
an unlisted ground must present evidence that the act complained of affected their dignity; hurt
feelings are inadequate to support a discrimination claim.71 This means that before a claim of
claimed unfair discrimination on grounds other than those stated in Section 6 of the EEA can be
heard, the court must be satisfied that the discrimination complained of is indeed unlawful.72
In the case of Dingane, it appears that he has been subjected to indirect discrimination. The
demand for a matric certificate by MEN@WORK (Pty) Ltd. may be perceived as
discriminatory because the condition is not reasonable or related to the job. According to the EEA,
unfair discrimination is defined as any act or omission that imposes difficulties, obligations, or
disadvantages on employees or job seekers based on their race, gender, age, religion, disability,
or any other arbitrary ground. As a result, if MEN@WORK (Pty) Ltd.’s matric certificate
requirement unfairly discriminates against some groups of persons who may not have had the
same educational opportunities due to historical and societal causes beyond their control, it may
be ruled discriminatory.
64
65
66
67
68
69
70
71
72
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Q.3.2)
The EEA considers harassment to be a kind of unfair discrimination. The Department of Labour
has developed a Code of Good Practice for the Handling of Sexual Harassment Cases.73 Sexual
harassment, according to Item 3(2) of the code, is defined as "any sexual attention" that (a) is
continuous, (b) the recipient has clearly expressed is offensive, and (c) the perpetrator should
have understood is unacceptable.74
According to the code, sexual harassment encompasses a wide range of behaviours.75 It ranges
from overt physical contact to innuendos, suggestions, and hints, comments about people's
bodies made in their presence or directed at them, inappropriate inquiries about a person's sex
life, unwelcome gestures, indecent exposure, and the unwelcome display of sexually explicit
pictures and objects.76 Sexual harassment is defined as demeaning and offensive statements
concerning a person's sex. The code also requires employers to not only refrain from such
behaviour themselves, but also to ensure that it is not permitted, condoned, or encouraged in the
workplace by anybody else who may engage in it.77
As a result, Susan may be able to make a successful claim of unfair discrimination under Section
6 of the EEA. Susan may sue her employer under the EEA or file a civil action for damages as a
result of her employer's failure to take proper action.
73
74
75
76
77
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Question 4
Is MEN@WORK (Pty) Ltd Complying with the BCEA?
The BCEA MEN@WORK(Pty) Ltd Are they Complying to

the Act
Working Hours An employee may not be The employees are expected Working from 07:00 to
required to work more than to work from 07:00 to 18:00 18:00 Mondays to
45 hours per week, or 9 Mondays to Fridays. Fridays would generally
hours per day if they work 5 go against the BCEA as it
days or fewer per week, or 8 amounts to 11 hours per
hours per day if they work day, which is more than
more than 5 days.78 All work the maximum of 9 hours
beyond this counts as per day allowed. Unless
overtime, which can only be there is a valid
completed with the agreement in place that
employee's permission and meets the conditions set
must be compensated out in the Act,
annually if specified in a MEN@WORK (Pty) Ltd
collective agreement.79 are not complying with
the Act.
Overtime Unless the employee is The employees have to work If an employee is
subsequently awarded 30 on Saturdays on some days required to work on
minutes off on full pay for and do not receive overtime Saturdays and does not
each hour of overtime payment. The employees receive overtime
worked at normal rates, or rarely work on Sundays, but payment, this would go
90 minutes off if the when they do, they only against the BCEA
employee was not paid at all, receive their one and a half regulations. The
the overtime rate is 1.5 times of their daily rate. employee should be
the normal wage.80 Unless compensated for working
the employee expressly on Saturdays, which is
agrees in writing to a longer considered overtime
term of up to 12 months, since it exceeds their
time off in lieu of normal working hours.
compensation for overtime
must be used within a month Furthermore, if the
of the time worked.81 employee works on
Sundays and only
Every hour of Sunday work receives one and a half of
must be compensated at their daily rate, this also
double the usual rate, at goes against the BCEA
78
79
80
81
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the time and a half if the regulations. According to
employee typically works on the BCEA, employees
Sundays, or at the regular who work on Sundays
daily wage if the amount are entitled to receive
earned for the time worked double their normal pay
exceeds that amount.82 rate for each hour
worked. Therefore, if an
employee works on
Sundays, they should
receive double their daily
rate for every hour
worked.
MEN@WORK (Pty) Ltd

is therefore in violation of
the Act.
Night Work These employees work from During peak times, the In terms of working until
after 18:00 to 6:00 the employees are sometimes 23:00 at night, this would
following morning.83 Only requested to work until 23:00 not necessarily go
with the employee's at night. Some staff work against the BCEA as
permission is work allowed from 18:00 to 06:00 as per long as the employee's
to be done during these the operational requirements total working hours for
times. The amount of of the company at that time. the week do not exceed
allowance that must be 45 hours. However, if the
provided to night workers is employee is required to
unspecified.84 work more than 15 hours
on a particular day, this
would be a violation of
the BCEA.
Regarding working from

18:00 to 06:00, this
would be considered a
night-shift and therefore
subject to additional
regulations under the
BCEA.
Therefore,
MEN@WORK (Pty) Ltd
82
83
84
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would not be in violation
of the BCEA.
Rest Periods Every employee is entitled to The employees are expected As long as MEN@WORK
both a weekly rest period of to work from 07:00 to 18:00 (Pty) Ltd offers at least 12
at least 36 consecutive Mondays to Fridays. straight hours between
hours, which must include a the end of one workday
Sunday, and a daily rest and the start of the next,
period of at least 12 working from 07:00 to
consecutive hours between 18:00 Monday through
the end of one workday and Friday would not
the beginning of the next.85 necessarily be in
violation of the BCEA
with regard to rest
periods. In this instance,
the employees are
required to work 11 hours
a day from 7:00 to 18:00.
This gives the workers 13
hours of rest. Hence,
MEN@WORK is not in
conflict with the BCEA.
Meal Intervals After five hours of work, The employees are entitled It would be against the
employees are entitled to a to a lunch break of 15 BCEA to take 15-minute
one-hour uninterrupted meal minutes at 13:00. lunch breaks at 13:00
break, during which they because it does not
must be compensated if they satisfy the requirements
are needed to work or be for a meal interval.
available for work.86 MEN@WORK (Pty) Ltd
will thereby be in
violation of the BCEA.
Annual Leave Every employee is entitled to The company allows 28 MEN@WORK (Pty) Ltd
at least 21 days of annual consecutive leave days, is in compliance with the
leave every 12-month cycle, which may be taken during BCEA, as their policy of
starting either when they the December building providing 28 consecutive
start working or at the end of holiday. leave days during the
the preceding cycle.87 December holiday, which
Annual leave must be taken exceeds the minimum
within six months after the entitlement provided by
end of the preceding leave the BCEA, is not a
cycle, on a full business day, violation of the Act.
and at a time determined by
85
86
87
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the employer.88 An
employee's leave must be
extended by one day if a
public holiday falls during it.
Workers are allowed to take
paid annual leave while on
unpaid leave with a written
request.89
Sick Leave During the first four months The employees are entitled In this case, if the
of employment, employees to 10 days’ sick leave every employee works from
are entitled to one day of year. 07:00 to 18:00 Mondays
paid sick leave for every 26 to Fridays throughout the
days worked. Thereafter, year, they would be
they are entitled to the working a five-day week.
number of days they Therefore, they would be
typically work in six weeks entitled to 30 days of sick
during each 36-month leave over a three-year
cycle.90 If the number of days cycle.
of paid sick leave is
increased at least MEN@WORK (Pty) Ltd
proportionately to any is in violation of the Act
reduction in the daily amount since they are offering
of sick leave pay, pay during only 10 days of sick
sick leave may be reduced leave, which is less than
by agreement below the the required 30 days
normal rate received by the specified in the Act.
employee, as long as the
rate is not produced to below
3 quarters of the normal
wage and the number of
days granted is at least the
equivalent of those the
employee typically works in
6 weeks.91
Family Responsibility Leave During each 12-month leave The employees who have Providing four days of
cycle, employees are been employed for more family responsibility
entitled to 3 days of paid than a year are entitled to leave for the birth or
leave to take care of family four days family death of a child does not
responsibilities in specific responsibility leave when go against the BCEA.
circumstances.92 their child is born or dies. However, expecting an
88
89
90
91
92
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This entitlement is only for employee to resign if
one child. Should the they have another child
employee have another after taking family
child, they are expected to responsibility leave for
resign. one child would be
discriminatory and
against labour law.
Maternity Leave A right to four consecutive The female employees that Allowing female
months of unpaid maternity are still at the company are employees to four
leave exists for entitled to four months’ paid months' paid maternity
93
employees. Regardless of maternity leave. leave does not violate the
whether the child is born BCEA and can be a
alive or if there is a positive step towards
miscarriage, the employee is creating a supportive and
not permitted to return to inclusive workplace.
work for six weeks after the MEN@WORK (Pty) Ltd
birth unless a doctor or is therefore not in
midwife certifies that it is violation of the Act.
94
safe for her to do so. The
employee must notify the
employer in writing, if she is
able to do so, of the date she
intends to begin her
maternity leave within four
weeks of that date or as
soon as it is practically
possible.95
Notice Periods All employees who work for All employees who have Where an employee is
an employer more than 24 been employed for longer required to give two
hours per week are entitled than six months have to give months' notice upon
to the notice of termination two months’ notice upon resignation and the
specified in their contracts, tendering their resignations. employer only has to give
or if no notice period is The employer only has to two weeks' notice when
specified, to at least one give two weeks’ notice when terminating employment,
week's notice if they have terminating employment. it would appear that this
been employed for six goes against the BCEA
months or less, two weeks' with regards to notice
notice if they have been periods. The BCEA
employed for more than six stipulates that notice
months but not more than a periods should be based
on length of service and
93
94
95
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year, and four weeks' notice should be equal for both
after that.96 employers and
employees.
MEN2WORK (Pty) Ltd is

therefore in violation of
the Act.
96
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Question 5
Q.5.1)
According to the EEA97, an employer who has 50 or more employees qualifies as a designated
employer. MEN@WORK (Pty) Ltd has 52 employees, which makes them a designated employer
according to the EEA. The EEA defines a designated employer as an employer with 50 or more
employees. Therefore, MEN@WORK (Pty) Ltd falls under this category.
Q.5.2)
Facts
When the Cape Metropolitan Council joined with several other municipalities to form the
respondent metropolitan municipality, the appellant was working for the council as the acting head
of municipal health services. The appellant was named Interim Manager: Health following the
merger, one of 16 positions that made up the respondent's previous interim management team.
The appellant applied for the position of Director: City Health when it was posted, but a white man
was chosen instead. The appellant alleged that she had experienced race and/or
sex discrimination and that the respondent had violated its duty to take affirmative action steps.
The respondent accepted the appellant's statement of claim when the matter was heard by the
Labour Court on a number of grounds, all of which were upheld.
The appellant appealed only against the findings on two of the exceptions – ie those relating to
the averments that the appellant had been discriminated against because the selection criteria
reflected a bias in favour of white persons and/or men, and against black persons and/or women
and because the respondent had failed to implement affirmative action in a manner required by
its own policy and the Employment Equity Act 55 of 1998.
Issues
Whether or not a designated employer’s failure to accord a job applicant for employment
preference in the filing of a vacant position constitutes unfair discrimination.
Rules of Court
Chapter III of the EEA.
Chapter V of the EEA.
Application
The Court noted that the respondent’s exceptions to both claims were based on two submissions:
(i) That an employer’s failure to apply affirmative action to prefer or advantage a member of a
designated group who has applied for employment cannot constitute discrimination as
contemplated in terms of the EEA; and
97
S 1 of 55 of 1998.
18 | P a g e
(ii) That the appellant had no right to institute legal proceedings based on the respondent’s alleged
breach of its obligations under the EEA without first exhausting the monitoring and enforcement
procedures provided by that Act.
The Court held that if the drafters of the EEA had intended that anyone who believed that a
designated employer was failing to comply with its obligations under Chapter III could approach
the Labour Court, prior to the exhaustion of the enforcement procedure provided for in Chapter V
of the EEA, they would have provided a dispute resolution procedure in Part A of Chapter III in
the same way that they provided such a procedure in Chapter II. The drafters of the EEA decided
that, for non-compliance with a designated employer’s obligations under Chapter III, the
enforcement procedure set out in Chapter V would have to be exhausted first, thereafter leading
to an adjudication process by the Labour Court if it became necessary.
The Court concluded that it was not competent for anyone to institute proceedings in the Labour
Court in respect of an alleged breach of any obligation under chapter III of the EEA, prior to the
exhaustion of the enforcement procedure provided for in Chapter V of the EEA.
With regard to the question as to whether a designated employer’s breach of its obligation either
under its own selection or affirmative action policy or under the affirmative action provisions of
Chapter III of the EEA in filling a vacant post, for example in failing to prefer a black woman
candidate to a white male candidate, constituted unfair discrimination, the Court held that the
appellant was in effect saying that the respondent’s failure to prefer her ahead of white male
candidates constituted unfair discrimination. The Court stated that the purpose of affirmative
action was inter alia to achieve employment equity in the workplace. The fact that the employer’s
failure to give an employee preference in the filling of a position did not constitute unfair
discrimination, did not mean that such employee would have no cause of action at all. If, for
example, such employee’s employer was obliged to give him or her preference in terms of a
collective agreement, the failure to give him or her preference would constitute a breach of such
agreement even though it would not constitute unfair discrimination.
The Court stressed that the judgment did not affect her claim that the first respondent unfairly
discriminated against her on grounds of race or colour or gender in that the only reason why she
was not appointed to the position in question was that she was black or was a woman or both.
However, that was not an issue for it to decide. Nor was the Court required to decide whether an
individual had an enforceable right to affirmative action.
With regards to Mr. Teboho, he is therefore unlikely to succeed in a claim for unfair discrimination
against MEN@WORK (Pty) Ltd. As stated above, the employer’s failure to give an employee
preference in a filling of a positions does not in fact constitute unfair discrimination.
Conclusion
This rambling and repetitive judgment was a disappointing one – not so much in what the Court
said, but more in respect of what it did not say. It left one with a sense that the Dudley matter has
not yet been put to bed and that it will remain in the domain of the Courts, with the Constitutional
Court possibly having the last word. It was probably in anticipation of this that the Appeal Court
19 | P a g e
remained silent on the critical issues the matter raised and which remain in the forefront of legal
debate.
20 | P a g e
Bibliography/Reference List
Legislation
Employment Equity Act 55 of 1998.
Cases
Dudley v City of Cape Town & Another [2008] 12 BLLR 1155 (LAC).
Books
Grogan, J. Workplace Law 13th ed (2022) JUTA: Cape Town.
De Vos, P & Freedman, W (Eds) Boggenpoel, Z Draga, L Gevers, C Govender, K Lenaghan, P

Weeks, S Namakula, C Ntlama, N Mailula, D Moyo, K Sibanda, S Stone, L South African
Constitutional Law in Context 2nd ed (2021) Penny Lane: Cape Town.
Web Sources
Arikum, S “Employee or independent contractor – which one am I?” October 2021 website at:
https://ceosa.org.za/employee-or-independent-contractor-which-one-am-
i/#:~:text=An%20independent%20contractor%20is%20not,and%20relationship%20with%20an%
20employer. [Accessed 7th April 2023].
Speller, M “Distinguishing between an employee vs an independent contractor relationship”

October 2021 website at: https://www.dmllaw.co.za/distinguishing-between-an-employee-vs-an-
independent-contractor-
relationship/#:~:text=The%20distinction%20between%20the%20two,and%20when%20the%20r
elationship%20ceases. [Accessed 7th April].
21 | P a g e

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Contents Page Page

Is MEN@WORK (Pty) Ltd Complying with the BCEA?

The BCEA MEN@WORK(Pty) Ltd Are they Complying to

MEN@WORK (Pty) Ltd

Regarding working from

MEN2WORK (Pty) Ltd is

Chapter III of the EEA.

Chapter V of the EEA.

Employment Equity Act 55 of 1998.

Grogan, J. Workplace Law 13th ed (2022) JUTA: Cape Town.

De Vos, P & Freedman, W (Eds) Boggenpoel, Z Draga, L Gevers, C Govender, K Lenaghan, P

Speller, M “Distinguishing between an employee vs an independent contractor relationship”

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