For office use only

UNIVERSITY OF THE WESTERN CAPE

SUPPLEMENTARY AND SPECIAL ASSESSMENTS:
NOVEMBER 2020

MODULE NAME : Labour Law

MODULE CODE : LAB321
DURATION : 4 hours (2 hours online examination + 2 hours take-home
examination)
TOTAL MARKS : 50 marks

Examiner/s : J van de Rheede

Internal moderator : K Malherbe
External moderator : Not Applicable
Departmental chairperson : F Moosa

EXAMINER’S INSTRUCTIONS: This is an official University Examination, and individual

answers are required. No consultation or discussion of the examination questions with fellow students
or anyone else is allowed.

GENERAL INSTRUCTIONS:

1. This examination is an official university assessment and, as such, the normal rules regarding
academic dishonesty apply. You are cautioned that you may under no circumstances contact,
communicate with or consult with other students writing this examination during the
examination for the duration of the examination period.

2. The examination totals 50 marks.

3. The examination consists of 3 parts: Part 1 being the MCQs, Part 2 being the match the
statement with the best concepts and Part 3 is the long question section.

4. Parts 1 and 2 should be completed under ‘Tests and Quizzes’ on the iKamva platform. Part 3
is the long question section included in this paper. The question should be accessed under the
‘Assignment’ tool and the answer should be uploaded as an attachment. The document
containing your answer to the long question section should be saved as your surname and
initials and student number. You have to complete Part 1, 2 and 3 within the four-hour duration
 of this examination. However, Parts 1 and 2 of the examination has to be completed within 2
hours from opening it.

5. Please note that the examination has been set up linear. This implies that once you see a
question, the question should be answered immediately. Once you complete a question and
click ‘next’ you will not be able to go back to a previous question.

6. The following requirements must be adhered to in respect of Part 3:

Format: MS Word. No other format is acceptable unless arranged with the lecturer. Font:
Times New Roman or Arial, Font: 12; Line spacing: 1.5; justified text. The answer to Part 3
should be drafted in accordance with the IRAC method.

7. Part 3 must be accompanied by the duly completed cover page (template to be used appearing
at the end of this test paper). The cover page must be the first page of the document containing
your answer. Submission of the cover page will be regarded as acknowledgment and
acceptance of the terms set out therein.

8. Your answer in Part 3 must be adequately referenced. The answer in Part 3 should contain
footnotes. No bibliography is required. Part 3 will be assessed not only on the content of
answers, but also the technical referencing and structural logic. It is of utmost importance that
students adhere to and use the prescribed referencing style.

9. The answer to Part 3 should not exceed 1200 words in total (excluding footnotes). Indicate the
word count at the end of the answer.

10. Since this is an official University test, no late submissions will be accepted. No answer scripts
will be accepted via iKamva after the submission time and date. If there are any questions, the
lecturer may be contacted via email.

PART 1: MCQ questions

1. James is employed on a contract basis. James is informed by his employer that the contracts
of employment of employees who work as hard as he does are usually retained on an
indefinite basis, however, at the end of the contract, the employer did not retain him at all.
This is an example of:
a. An automatically unfair dismissal
b. A constructive dismissal
c. The non-renewal of a fixed term contract
d. A situation that does not amount to a dismissal

2. In circumstances where an employer initially provides training in Afrikaans knowing that a

large number of black employees are disadvantaged in the process and subsequently provides
training in English, this is an example of:
a. A measure to ensure equitable representation of people from designated groups.
b. A measure making reasonable accommodation for people from designated groups.
c. A measure to ensure the retention of people from designated groups.
d. A measure designated to further diversity in the workplace.

2
3. Where the court determines that an affirmative action measure targets persons who have been
disadvantaged by unfair discrimination, is designed to protect or advance such persons or
categories of persons and promotes the achievement of equality, this is the application of the:
a. Proportionality standard
b. Fairness standard
c. Rationality standard
d. None of the above

4. Where Sarah took maternity leave in terms of a collective agreement and her employer
refused to allow her to resume work after her maternity leave, this is:
a. An automatically unfair dismissal.
b. An ordinary dismissal.
c. Not a dismissal at all.
d. None of the above.

5. Tim, Brian and Graham are involved in theft at the workplace. The three of them are
dismissed as a consequence. Brian is re-employed, but Tim and Graham are not. This is an
example of:
a. An automatically unfair dismissal.
b. A constructive dismissal.
c. A termination of a contract of employment that does not amount to a dismissal.
d. A dismissal known as selective non-re-employment.

6. Robin was employed by a construction company. Robin is required to prove that an

employment relationship existed and that the relationship was terminated by the employer in
order to be successful with:
a. A constructive dismissal
b. A dismissal known as termination with or without notice
c. A dismissal contrary to section 5 of the Labour Relations Act 66 of 1995
d. A dismissal known as selective non-re-employment.

7. In order for Samantha to be successful in claiming a constructive dismissal she is required to

prove:
a. That an employment relationship existed at the time she resigned.
b. That Samantha brought the employment relationship to an end.
c. That the employer made further employment intolerable.
d. All of the above.

8. In the case where Carla resigns due to her employer making continued employment
intolerable she may be successful in claiming:
a. A dismissal contrary to section 5 of the Labour Relations Act 66 of 1995.
b. A constructive dismissal
c. A dismissal in support of a demand
d. A dismissal known as victimisation

9. Designated employers are required to take reasonable steps to consult with their employees
with regard to affirmative action. During the consultation, representations must reflect the
interests of:
a. Employees from designated groups
b. Employees from non-designated groups
c. Employees in all occupational levels

3
 d. All of the above

10. In the case of dismissals known as the non-renewal of a fixed-term contract:

a. The onus rests on the employer to prove that an employment relationship existed and that
it was terminated by the employee.
b. The onus rests on the employer to prove that a reasonable expectation existed which is
based on an express or implied promise.
c. The onus rests on the employee to prove that a reasonable expectation existed which is
based on an express or implied promise.
d. None of the above

11. The form of dismissal that is only possible if preceded by a conventional dismissal and where
employees were dismissed in similar circumstances for collective or comparable misconduct
is known as:
a. Constructive dismissal
b. Selective non-re-employment
c. Non-renewal of a fixed term contract
d. A dismissal in support of a demand

12. In the case of a dismissal where the reason for the dismissal is that the employer
discriminated against the employee, the employer may raise the defence:
a. That affirmative action measures were taken.
b. That the reason for the dismissal is based on an inherent requirement of the job
c. That the employee has reached the normal or agreed retirement age for persons employed
in that capacity in the case of a dismissal based on age.
d. Both (b) and (c) above.

13. Chapter 3 of the Employment Equity Act 55 of 1998:

a. Consists of the provisions governing the prohibition against unfair discrimination and
applies to designated employers and to people from designated groups.
b. Consists of the provisions governing affirmative action and applies to designated
employers and to people from designated groups.
c. Consists of the provisions governing the prohibition against unfair discrimination and
applies to all employers and to all employees.
d. Consists of the provisions governing affirmative action and applies to all employees and
to all employers.

14. Where Robyn is dismissed after being absent from work for up to 4 weeks before the
expected date of the birth of her child and up to 8 weeks after the actual date of the birth of
her child this is:
a. Not a dismissal
b. An automatically unfair dismissal
c. An ordinary dismissal
d. None of the above

15. In order to determine whether a person is suitably qualified for a job, the employer may
consider that persons:
a. Formal qualifications
b. Prior learning
c. The capacity to acquire the ability to do the job within a reasonable period

4
 d. Relevant experience
e. All of the above

16. Once Jeremy proves to have been dismissed for any reason specified in section 187(1)(f) of
the Labour Relations Act 66 of 1995, the only defence(s) which may be raised by his
employer is/are:
a. The employee has reached the normal or agreed retirement age for persons employed in
that capacity in the case of a dismissal based on age.
b. The reason for the dismissal is based on an inherent requirement of the job.
c. The employment relationship became intolerable.
d. Both (a) and (b) above.

17. Rachel informs all her colleagues that she intends to start a family. This information is
brought to her employer’s knowledge. Rachel is dismissed as a result.
a. Rachel may claim to have been victimised.
b. Rachel may claim to have been constructively dismissed.
c. Rachel may claim to have been dismissed due to her intended pregnancy.
d. Rachel may claim to have been dismissed for a reason related to her pregnancy.

18. In the context of a dismissal for misconduct the rule the employee is alleged to have
contravened is valid if:
a. The rule is operationally justified.
b. The rule falls within the employer’s contractual powers and does not infringe any law.
c. The rule serves to promote the employer’s business and the welfare of the employees.
d. Both (a) and (c)

19. In terms of formal equality:

a. The need to provide redress for past disadvantages is recognised.
b. Affirmative action forms part of the right to equality.
c. People must be treated equally at all times.
d. All of the above

20. In the case of dismissals based on misconduct, a factor to consider is the presence of a rule
which the employee is alleged to have contravened. In order to justify dismissal:
a. The rule must be in writing.
b. The rule may be verbal or obvious.
c. The rule need not be in writing unless it is not an obvious rule.
d. Both (b) and (c) above.

21. In the case of dismissals based on misconduct, a factor to consider is the presence of a rule
which the employee is alleged to have contravened. In order to determine whether a rule is
present, the following needs to be taken into consideration:
a. A collective agreement
b. The contract of employment
c. Policies and practices
d. All of the above

22. In the case of dismissals based on misconduct, a factor to consider is whether the employee
had knowledge of the rule that he or she is alleged to have contravened. This means that:
a. The employer should prove that the employee was or could reasonably have been
expected to be aware of the rule.

5
 b. The employer should prove actual knowledge of the rule by the employee.
c. Actual knowledge of the rule by the employee is not required and it is sufficient if the
employee ought to have known that the conduct was prohibited.
d. Both (a) and (c) above.

23. The disciplinary offence of intoxication on duty may be established by way of:
a. Blood tests
b. Physical observations
c. Breathalyser tests
d. All of the above

24. Where Martha’s employer refused to allow Martha to resume work after Martha took
maternity leave and stayed away for longer than she was entitled to, this is:
a. An ordinary dismissal
b. An automatically unfair dismissal
c. Not a dismissal
d. None of the above

25. Dismissal for poor work performance is appropriate where an employer cannot reasonably be
expected to retain the underperforming employee for the time necessary to acquire a
reasonable level of competence, in which case:
a. The knowledge and experience of the employee should be taken into consideration.
b. The ability to adapt should be taken into consideration.
c. The ability of the employee to judge for his or herself whether the standard is being met
or not should be taken into consideration.
d. All of the above.

26. In the case of dismissals based on operational requirements, the parties with whom the
employer should consult includes:
a. Any person with whom the employer is required to consult in terms of a collective
agreement.
b. A workplace forum and any registered trade union whose members are likely to be
retrenched in the case where there is no collective agreement.
c. Where there is no workplace forum, any registered trade union whose members are likely
to be affected.
d. All of the above.

27. The form of dismissal which was created in order to ensure that employers do not circumvent
the Labour Relations Act 66 of 1995 by keeping employees on fixed-term contracts
indefinitely and terminating it at will without having good reason and following a fair
procedure is known as:
a. Constructive dismissal
b. Selective dismissal
c. A dismissal contrary to section 5 of the Labour Relations Act 66 of 1995
d. Non-renewal of a fixed-term contract

28. In the case of dismissals based on operational requirements, the subject matter for the
consultation preceding the dismissal includes:
a. The method for selecting employees to be dismissed.
b. The appropriate measures to minimise the number of dismissals.
c. The appropriate measures to change the timing of the dismissals.

6
 d. All of the above.

29. In the case of dismissals based on operational requirements, the subject matter for the
consultation preceding the dismissal includes measures to mitigate the adverse effects of
dismissals. Choose the incorrect answer:
a. The employee parties should be provided with an opportunity to make representations.
b. The employee parties may suggest that time be given off work to seek employment.
c. Employers are obligated to seek employment for the retrenched employees.

30. Where Rose takes maternity leave in terms of the Basic Conditions of Employment Act 75 of
1997 and her employer refused to allow her to resume work thereafter, this is:
a. An ordinary dismissal
b. Not a dismissal
c. An automatically unfair dismissal
d. None of the above

31. There are requirements to be met in order for trade unions to register. A requirement which
does not form part of the requirements for the trade union to register is that:
a. The union must have an address in South Africa.
b. The name of the union must be original.
c. The union must be dependent.
d. All of the above.

32. The effect of a collective agreement is that:

a. It receives statutory recognition if a registered trade union is a party.
b. It binds the parties to the agreement.
c. It binds the members of the parties to the agreement.
d. All of the above.

33. Terminations of contracts of employment that do not amount to dismissals include:

a. Deemed dismissals
b. Death of either the employer or the employee
c. Both (a) and (b)
d. None of the above.

34. Roger’s contract of employment ends due to a dismissal, however the Court or the CCMA
orders that he be employed by the employer again. The situation presupposes no break in the
period of employment and backpay is payable by the employer to Roger. This is known as:
a. Reinstatement
b. Re-employment
c. Compensation
d. A settlement offer

35. The effect of a closed shop agreement is that:

a. An employer may dismiss an employee who refuses to join a trade union party to the
closed shop agreement, however exceptional circumstances exist.
b. An employer may dismiss an employee who ceases to be a member of the trade union
party to the closed shop agreement, however exceptional circumstances exist.
c. An employer may dismiss an employee who refuses to join a trade union party to the
closed shop agreement, an no exceptional circumstances exist.
d. Both (a) and (b) above.

7
36. The only form of automatically unfair dismissal where there are defences available to an
employer is if the reason for the dismissal is:
a. That the employee participated in or supported a strike or protest action.
b. A refusal by employees to accept a demand in respect of a matter of mutual interest.
c. That the employer unfairly discriminated against an employee directly or indirectly on
any arbitrary ground including, but not limited to race, gender, sex, ethnic or social
origin, colour, sexual orientation, age, disability, religion, conscience, belief, political
opinion, culture, language, marital status or family responsibility.
d. The employee’s pregnancy, intended pregnancy or any reason related to her pregnancy.

37. Strikes and lock-outs are regulated by the:

a. Labour Relations Act 66 of 1995.
b. Employment Equity Act 55 of 1998.
c. Basic Conditions of Employment Act 75 of 1997.
d. Skills Development Act 97 of 1998.

38. Chapter 2 of the Employment Equity Act 55 of 1998:

a. Consists of the provisions governing affirmative action and applies to all employees and to
all employers
b. Consists of the provisions governing the prohibition against unfair discrimination and
applies to designated employers and to people from designated groups.
c. Consists of the provisions governing affirmative action and applies to designated employers
and to people from designated groups.
d. Consists of the provisions governing the prohibition against unfair discrimination and
applies to all employers and to all employees.

39. The form of dismissal in the Labour Relations Act 66 of 1995 which reflects the common law
dismissal of repudiation of a contract by the employer or the employee’s acceptance of the
employer’s repudiation is known as:
a. Selective non-re-employment
b. Constructive dismissal
c. Termination with or without notice
d. A dismissal contrary to section 5 of the Labour Relations Act 66 of 1995

40. Employees may not engage in an unprotected strike if:

a. The employees are bound by a collective agreement prohibiting them from striking over
the disputed issue.
b. The parties to the dispute may refer the issue for arbitration or to the Labour Court
c. The employees are bound by an arbitration award, collective agreement or ministerial
determination regulating the dispute.
d. All of the above.

41. The remedy not available to an employer in the case of a protected strike is:
a. Disciplinary action
b. An employer may apply to the essential services committee to be declared an essential
service.
c. Obtaining a restraining interdict.
d. Withholding payment

42. In terms of substantive equality

8
 a. People must be treated equally at all times.
b. The need to provide redress for past disadvantages is recognised.
c. Affirmative action is an exception to the right to equality.
d. All of the above

43. A closed shop agreement is only binding if:

a. A ballot has been held of employees to be covered by the agreement.
b. Two thirds of the employees voted in favour of the agreement.
c. There is no provision in the agreement requiring membership of the representative trade
union before employment commences.
d. All of the above.

44. The remedy not available to an employer in the case of an unprotected strike is:
a. Obtaining replacement labour.
b. Obtaining a restraining interdict.
c. Lock-out.
d. Applying for compensation if loss was suffered.

45. Terminations of contracts of employment that do not amount to dismissals include:

a. A contract of employment terminating by mutual agreement.
b. Victimisation
c. The insolvency of the employer.
d. Both (a) and (c)

46. Indemnification against civil action by employees is one of the consequences of:
a. A protected lock-out.
b. A protected strike.
c. An ordinary strike.
d. An unprotected lock-out.

47. One of the requirements for a strike is the stoppage of work. This may be a partial strike
which includes:
a. Go slows
b. ‘Grasshoppers’
c. The obstruction of work.
d. All of the above.

48. Craig asks an attorney for advice on the rights of trade unions, particularly on the deduction
of union fees. The attorney provides Craig with information. Identify the statement which is
inaccurate:
a. Any employee who is a member of a representative trade union may authorise the
employer to deduct subscriptions or levies payable to the trade union from the employee’s
wages.
b. The employee may not give the employer notice to revoke the authorisation.
c. No charge may be made with regard to the services rendered by the employer in
deducting the subscriptions or levies payable to the trade union from the employee’s
wages.
d. All of the above.

9
49. A representative trade union and an employer or employers’ organisation may conclude an
agreement requiring all employees covered by the agreement to be members of the trade
union. This is known as:
a. An agency shop agreement.
b. A collective agreement.
c. A closed shop agreement.
d. A trade union agreement.

50. The right to continued payment in kind applies in the context of:
a. A protected strike.
b. An ordinary strike.
c. A protected lock-out.
d. An unprotected lock-out.

51. In terms of substantive equality:

a. Affirmative action is an exception to the right to equality.
b. Affirmative action is unconstitutional.
c. Affirmative action forms part of the right to equality.
d. All of the above.

52. Choose the most correct answer:

a. Affirmative action is discrimination.
b. Affirmative action is not discrimination.
c. Affirmative action is discrimination however it is a measure to remove the effects of past
discrimination so it is justifiable.

53. In the case of a dismissal based on misconduct, one of the requirements for a fair hearing is
adequate notice of the hearing. This notice should include:
a. The date of the hearing
b. The place of the hearing
c. The employee’s rights
d. All of the above

54. A written agreement concerning terms and conditions of employment or any matter of mutual
interest concluded by one or more registered trade unions on the one hand and either one or
more employers, one or more registered employer organisations or one of more employers
and one or more registered employers’ organisations is known as:
a. An agency shop agreement.
b. A collective agreement.
c. A closed shop agreement.
d. A trade union agreement.

55. In the case of a dismissal based on misconduct, the employee concerned should be provided
with a fair disciplinary hearing. The hearing may be dispensed with if:
a. The employer cannot reasonably be expected to hold the hearing such as in the case of
protecting another employee’s life.
b. The employee who is entitled to the disciplinary hearing provides an admission of guilt.
c. The employee who is entitled to the disciplinary hearing waives the right to a hearing.
d. All of the above.

10
56. In the case of a dismissal based on misconduct one of the requirements for a fair hearing is
that the employee should be present at the hearing. This entails:
a. That if the employee refuses to attend the hearing for any reason, the hearing may
proceed.
b. If the employee applies for a postponement, the employer should grant the postponement
if there is a plausible reason.
c. The employee should be able to understand the proceedings.
d. Both (a) and (c) above.
e. Both (b) and (c) above.

57. In the case of a dismissal based on misconduct, one of the requirements for a fair hearing is
that the employee is entitled to representation. This entitles the employee to representation by:
a. A friend
b. A legal practitioner
c. A union representative
d. Both (b) and (c) above.
e. Both (a) and (c) above.

58. In the case of a dismissal based on misconduct, one of the requirements for a fair hearing is
that the employee is entitled to representation. The purpose of this representation is:
a. To ensure that justice is done.
b. To level the playing field between the employer and the employee.
c. To provide the employee with moral support.
d. All of the above.

59. In the case of a dismissal based on misconduct, one of the requirements for a fair hearing is
that the presiding officer should be impartial. In circumstances where the presiding officer is
not impartial:
a. The employee may apply for a postponement which should not be unreasonably refused.
b. The employee has a right to legal representation to assist the employee.
c. The employee may apply for the recusal of the presiding officer; however, the presiding
officer is not required to grant the employee’s application.
d. The employee may refuse to attend the hearing.

60. In the case of a dismissal for ill-health or injury, it is important to distinguish between
temporary absence of the employee and those which are unreasonably long in the
circumstances. In this regard choose the incorrect statement:
a. The question of what is reasonable will depend on the circumstances of the case.
b. If it becomes clear that the employee is permanently incapacitated, the employer is not
required to retain the services of the employee.
c. Dismissal is appropriate even if the absence is relatively short.
d. All of the above

20 MARKS

11
PART 2:

MATCH THE STATEMENT/SCENARIO WITH THE BEST FITTING

CONCEPT.
You are required to select the correct concept listed from A –H below to match the most
appropriate statement/scenario below from 1 – 8.

You may only choose ONE concept per statement/scenario.

CONCEPTS

A Parity principle

B Unsuitability

C Wilful endangering the safety of others

D Closed shop agreement

E Informal discussion

F Agency shop agreement

G Probation

H Wilful damage to property

STATEMENTS

1 Within the context of dismissals based on misconduct, employees must be treated equally.

2 This period should be reasonable taking into consideration the nature of the job, the industrial
standard and the time necessary for the employer to evaluate the employee.

3 This is the first step an employer should comply with in order to prove that where an
employee was dismissed for poor work performance the dismissal was procedurally fair.

4 As far as this offence is concerned, mere negligence on the employee’s part is insufficient to
justify a dismissal.

5 A representative trade union and an employer or employers’ organisation may conclude a

collective agreement requiring the employer to deduct an agreed agency fee from wages of
employees identified in the agreement who are not members of the trade union, but are
eligible for membership thereof.

6 This offence usually takes the form of the intentional disregard of safety rules and procedures.

12
7 Due to Misha’s character she is unsuited to the work.

8 A representative trade union and an employer or employers’ organisation may conclude a

collective agreement requiring all employees covered by the agreement to be members of the
trade union.

8 MARKS

Part 3

Jackson has been recently employed on probation by an entertainment company. His contract of
employment contains terms which state that he is required to serve a period of probation of six months
and that his responsibilities include singing, dancing and selling tickets for the shows. All the performers
are responsible for selling 50 tickets per show. After the first show, Jackson’s employer, Miles, noticed
that Jackson only sold 10 tickets for the show and Miles was also informed by members of the audience
that they were very disappointed with Jackson’s performance. Miles decided to speak to Jackson and
informed Jackson that the studio would be available to Jackson more often in order for him to rehearse
more often to improve his performance. Miles also informed Jackson that he should make attempts to
sell tickets for the show online and should also attend the productions of other entertainment companies
to sell tickets to audience members after their shows. Jackson undertakes to do as Miles instructed.
After the second show, which takes place five months later, Miles noticed that once again, Jackson only
sold 10 tickets for the show. This time audience members informed Miles that while Jackson’s
performance had improved, they are still dissatisfied with his performance. After hearing this feedback
from audience members, Miles dismisses Jackson.

With reference to the relevant Code of Good Practice and case law, critically discuss whether Jackson’s
dismissal was substantively fair in the circumstances. Also discuss whether your answer would differ
if Jackson was a tenured employee at the time of his dismissal.

22 MARKS

_______________________________

13
 UNIVERSITY OF THE WESTERN CAPE

EXAM COVER PAGE

NOVEMBER 2020

MODULE NAME: LABOUR LAW 321

Full name: __________________________________________________________

Student nr: __________________________________________________________

By completing this page I, ____________________________________________, acknowledge and

confirm that:

1. Plagiarism means copying another's person’s work and pretending that it is one's own. I know
that plagiarism will be treated as dishonesty.

2. Every contribution and quotation in this answer from the work or works of other people in Part
3 is acknowledged by means of citation and/or references contained in footnotes.

3. I have not allowed any other person to copy from this answer and acknowledge that doing so
will make me party to examination dishonesty.

4. The answer submitted herewith is my own work.

_____________________ _____________________

Signature Date

14