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Chapter 12

Labour Law in the Workplace


By the end of this chapter you should be able to do the following:
Demonstrate that you are familiar with the role of labour legislation in the work
environment;

Describe the role of a manager in dealing with legislation relating to labour;

Know when to seek advice on matters relating to labour legislation.

Multiple-choice questions
Please read the questions carefully as they are intended to test/illicit
understanding of the material. The answers will not be found in a
specific area in the chapter but will require an understanding of all
the material.
1. Identify the incorrect statement. In substantive fairness:
(a) The employer has to establish that the employee broke a
rule.
(b)There is an obligation on the employer to ensure that all
the rules are communicated to the employees.
(c) The employer has to prove that the employee was aware
of the rule.
(d)The employer must have followed its disciplinary code.
(e) The disciplinary code must be fair and not too strict.
2. Identify

the

incorrect

statement.

To

promote

industrial

discipline:
(a) The aim should not be to punish the employee but to
correct behaviour.

(b)Termination

should

only

happen

if

the

employment

relationship has broken down irretrievably.


(c) Disciplinary action cannot prevent poor discipline and
should not be used to do that.
(d)It should maximise productivity and minimises losses.
(e) It should promote a functional and peaceful workforce.
3. Identify the incorrect statement. In applying discipline:
(a) The discipline must be in proportion to the offence.
(b)The employer must be consistent in its decisions and avoid
using its discretion.
(c) If discipline other than dismissal will achieve the same
purpose as dismissal, the employer should take the
alternative.
(d)The employer must consider extenuating circumstances to
impose a lesser penalty than dismissal.
(e) Examples of factors that determine extenuating
circumstances include length of service, disciplinary
record (if clean) and personal circumstances.
4. Identify the incorrect statement. In procedural fairness:
(a) The act requires a formal enquiry into any disciplinary
case
(b)When instituting disciplinary action against a trade union
representative or employee who is an office-bearer of a
trade union, the union must be informed and consulted
first
(c) The employee must be made aware of the charges against
him/her
(d)The employee must be given sufficient time to prepare

(e) It is good practice to establish during a hearing whether


the employee was informed of his/her rights
5. Identify the incorrect statement. In procedural fairness:
(a) The employee must be given the opportunity to state
his/her case.
(b)The employer presents its case by presenting it or by
calling witnesses.
(c) The employee must submit his/her own evidence to
disprove the evidence given by the witness of the
employer and may not question the employers witnesses.
(d)Employees are entitled to internal assistance (fellow
employee or trade union) but not from external parties
such as a lawyer.
(e) The presiding manager in a disciplinary case should be
acceptable as unbiased to both parties.
6. Identify the incorrect statement. In procedural fairness:
(a) The first stage of a hearing should determine whether the
employee was guilty of the allege misconduct.
(b)During the second stage of the hearing, it should be
determined what disciplinary action is needed.
(c) If the employee offers an excuse why he/she committed
the offence, the presiding manager must take into account
and reduce the disciplinary action.
(d)The presiding manager must give reasons for his/her
decisions.
(e) At the end of the hearing the presiding manager should
ask the employee if the hearing was fair and complaint
should be investigated.

7. Identify the correct statement.


(a) Disciplinary hearings should happen in all cases.
(b)A hearing should be conducted in spite of the employee
waving his/her rights after being made aware of the
rights.
(c) Warnings are alternative forms of discipline which are not
serious enough to warrant discipline.
(d)Warnings should be kept as proof of a poor record.
(e) Warnings should be issued after a hearing has been
conducted.
8. Identify the incorrect statement:
(a) Constructive dismissal happens when the employer makes
continued employment intolerable for the employee.
(b)The employee must prove that he/she was dismissed.
(c) The employee must prove that the dismissal was
constructive.
(d)The employee must prove that the dismissal was unfair in
the circumstances.
(e) Not dismissing an employee for the right reason may be a
form of constructive dismissal.
9. Identify the incorrect statement:
(a) The employer may dismiss an employee during the agreed
sick leave period for physical incapacity
(b)If an employee will be absent for an unreasonably long
period the employer may consider alternative measures
short of dismissal
(c) The employee must be offered the opportunity during the
investigation to state his/her case in response to the
charges of incapacity to perform work

(d)In the case where alcoholism and drug abuse causes


incapacity, counselling and rehabilitation may be
appropriate steps for the employer to consider
(e) There is an onerous duty on the employer to accommodate
employees who became incapacitated during work-related
activities
10.

Identify the incorrect statement


(a) Performance related unsatisfactory work happens where
the employee is trying to perform but the standard of
performance is unsatisfactory.
(b)Poor performance warrants disciplinary action as it is a
form of misconduct.
(c) Unsatisfactorily work due to a lack of skill, an emotional
problem or an inherent inability requires an investigation
into the capacity of the employee.
(d)If you are not sure whether behaviour is blameless
unsatisfactory performance or misconduct, treat it as the
latter.
(e) Before the employer can dismiss the employee for
blameless unsatisfactorily work, the employer must have
taken steps (normally counseling), to improve the
employees performance.

11.

Identify the incorrect statement


(a) Demotion is fair if it is done as a measure short of
dismissal.
(b)If the employee consented to a lowering of remuneration
during a demotion, lowering the package will not be
regarded as an unfair labour practice.

(c) The employer should allow fellow employees or actively


encourage fellow employees to assist an employee who is
not able to fulfill his/her duties.
(d)Demotion should form part of a procedure associated with
blameless unsatisfactory work performance.
(e) Unsatisfactory performance disguised as retrenchment is
an unfair labour practice.
12.

Identify the incorrect statement


(a) Retrenchment is implemented for the purpose of economic
survival or to increase profit.
(b)The

duty

to

consult

with

employees

or

their

representatives becomes imperative once the employer


contemplates the need for retrenchment.
(c) Retrenchment

is

managerial

prerogative

and

the

employer is the soul judge of the relevancy of the decision.


(d)The guidelines to consult are set out in section 189A of the
LRA.
(e) Retrenchments should always be minimised if practical
solutions exist.
Read the following scenario and answer questions 13 to 17 based
on the scenario
Mr. A. Plus was appointed on an employment contract that deviates from the BCEA conditions
in terms of annual leave, probation and termination conditions. A dispute about Mr. As
performance arose. While Mr. A. Plus thought he was an A performer, he learned that his
manager, Mr. A. Chiever rated him a D-performer, something for which the company rules
require the introduction of performance improvement procedures. After a week of depression
treatment in a stress clinic, Mr. A. Plus summarily resigned and immediately introduced action
for constructive dismissal

13.

What statement describes the above situation best?


(a) The employer acted within its rights.

(b)The employer must pay Mr. A. Plus the notice stipulated in


the employment contract.
(c) Performance

improvement

procedures

should

be

introduced before an employee is pronounced a poor


performer.
(d)None of the above.
(e) All of the above
14.

Which statement is incorrect?


(a) Mr. A. Plus should submit a medical certificate for his
absence
(b)Mr.

A.

Plus

is

not

required

to

pay

the

company

compensation for giving short notice


(c) The employer must prove that it did not dismiss Mr. A.
Plus constructively
(d)Prior to the performance feedback, Mr. A. Plus was not
given appropriate feedback on his performance
(e) Mr. A. Chiever has high performance standards
15.

Which statement is true?


(a) Because of the contractual agreement between the
company and Mr. A Plus, Mr. Plus must seek relief from
the civil court.
(b)The employer do not have to pay Mr. A. Pluss outstanding
leave because he did not give contractual notice.
(c) Mr. A. Chiever agreed performance objectives which were
unacceptable to Mr. Plus.
(d)The employer must prove that Mr. A. Plus was aware of
what was expected, that he was given opportunity to
achieve the performance standards and that he in fact did
not meet the requirements.

(e) The employer must institute disciplinary action against


Mr. A. Plus (even in his absence).
16.

What would a criminal offence be in the above scenario?


(a) Not to conduct a disciplinary hearing.
(b)Not to implement a performance improvement plan.
(c) To reduce annual leave to 10 days.
(d)Mr. A. Plus is criminally liable for giving short notice.
(e) Visiting a stress clinic although the benefit is not covered
by medical aid.

17.

What is untrue?
(a) The employer must identify the correct procedure to
dismiss an employee, if the wrong procedure is followed,
the dismissal will be automatically unfair.
(b)The employer could dismiss Mr. A. Plus for absconding
because stress clinic treatment is not covered by medical
aid.
(c) Application for constructive dismissal is lodged in the
CCMA.
(d)From the above, it cannot be determined whether the
employer made life intolerable for Mr. A. Plus.
(e) The employment contract has nothing to do with a claim
of constructive dismissal.

18.

Which of the statements below is not an automatically

unfair dismissal?
(a) Dismissal of a female employee because she is pregnant.

(b)Dismissal based on arbitrary grounds such as race or


gender.
(c) Dismissal for unsubstantiated reasons.
(d)A and B.
(e) B and C.

19.

Which measure below is not an affirmative action step?


(a) An analysis of the stumbling blocks that aversively affect
the appointment of previously disadvantaged individuals
into all levels within the organization.
(b)Consult with employees.
(c) Prepare and submit an employment equity plan.
(d)Report on employment equity to the Director General.
(e) Justify the non-appointment of white males as a step to
promote affirmative action.

20.

A dismissal should only occur once the following has been

done. Identify the wrong answer?


(a) Dismissal for misconduct only happens if the employee is
undisciplined or badly behaved
(b)Dismissal is a measure of last resort
(c) Dismissal should always have a fair reason
(d)Apportioning blame to the employee is not applicable to
dismissal but only for incapacity
(e) A fair procedure

TRUE OR FALSE QUESTIONS


Please indicate whether the questions are true of false?
1.

Common law applies to all labour law cases


T/F

2.

The BECA applies only if collective agreements do not exist


T/F

3.

Employers are protected if they use affirmative action as a


reason to exclude a White person from a job opportunity
T/F

4.

Self regulation of employers and employees is possible in


terms
of the LRA

5.

T/F

An employer may be criminally charged if they do not adhere


to
the BCEA stipulations
T/F

6.

An employee is entitled to 15 work days annual leave per


annum inclusive of public holidays
T/F

7.

During the duration of an employment contract, employees


may
be paid in lieu of leave
T/F

8.

Employers within a certain sector are able to fund registered


learnerships from the SETA
T/F

9.

Skills development levies are deducted from the payroll and


paid

to the Receiver of Revenue


T/F
10.

The employer and employee contributes equally (50/50) to


the
UIF

11.

T/F

The employer must complete the claims documents in the


case
of an occupational injury
T/F

12.

Employers are protected from civil claims if they comply with


the
OIDA

13.

T/F

Employers contribute to the Compensation fund and claim


against it in the case of injuries in the workplace. The fund
therefore protects the employer from any losses caused by
injuries on duty
T/F

14.

The employer or union/employees may approach the Labour


court to declare a strike or lockout protected
T/F

15.

The CCMA must make a ruling about the fairness of


retrenchment

16.

T/F

A clause in an executives employment contract that deals


with
his 25 days annual leave should be heard in the CCMA
T/F

17.

A clause dealing with an executives employment contract


dealing with the protection of intellectual property rights will

be
heard in the CCMA
18.

T/F

An employee with a contract to be paid 3 x normal salary for

overtime may only approach the civil court if the employer


only
pays out 2 x normal salary
T/F
19.

The payment in question 18 is also a criminal offence


T/F

20.

The employer may discriminate based on the inherent


requirements
of the job
T/F

Case Studies

Case Study 1
Read the case study below and do the assignment.
The name Sue Exy seems vaguely familiar. As you read the letter your memory comes back.
She was the employee your colleague Randal, another department manager, told you about.
He mentioned that he is increasing the performance standards and that she became a victim
of the process.
As you read the letter your glasses start to fog up from the steamy content. Miss. Exy
described her short relationship with your colleague Randal Wild in a very candid way with
little left for the imagination. She confessed that after a month of the rollercoaster relationship,
she turned to her husband and in a moment of guilt she pored her heart out. Nave Exy felt
sorry for his wife and they decided to work to restore their marriage.
During a romantic supper, Sue breaks the news to Randal who refuses to accept the fact.
Sue sticks to her commitments to her husband and rejected all further attention from Randal.
In her letter she stated that Randal started to call her in to discuss her (work) performance.
He accused her of poor and unsatisfactory performance and soon started to implement a
performance improvement programme. This was a complete surprise to Sue who felt that her
performance had improved since she had devoted her full attention to her work. When she
was dismissed for blameless poor performance she knew it had everything to do with her
ending the relationship with Randal.

Assignment
1.

What alleged situation is described above?

2.

Describe the procedure that you will follow, if any?


a. Do a benchmark of at least two companys procedures to
deal with the above situation and recommend a procedure
for your company.
b. Who has the burden of proof in these situations?
c. Describe the different legal remedies available in the
above scenario?

3.

Given the facts at face value, what decision will you make in
respect of Mr. Randal Wild and Sue Exy.

Case study 2
Read the case study below and do the assignment.
The Abundance Group (AG) acquired the major share in the Ailing Contact Centre Group (ACCG). There
are considerable synergies and current staff complement is estimated to reduce from the 2000 (AG-1500
and ACCG-500) to 1600. There is currently a full duplication of the managerial structures and only about
100 contact centre agents from the ACCG will be needed to serve the new customer base of AG.
You are called in and in a confidential discussion you are informed that you were identified, as the only
surviving manager from ACCG and your survival is dependent on the success of the project to integrate the
two businesses.

Assignment
1.

Do a benchmark study of at least two companies on


retrenchment procedures and recommend a procedure to
follow? The procedure should provide for:
a. Consultation about the intention to retrench;
b. Selection criteria;
c. New structures;
d. Steps to mitigate the effect of the retrenchment;
e. The selection process;
f. Communication.

2.

What advice will you give the top management?

3.

What will you consult the unions about?

Case study 3
Read the case study below and do the assignment.
Ms Van der Boom developed the reputation of being unstable after tea breaks. Her case came
under your attention when she insulted a client. After investigation it appears that she was a
cannabis addict who practices her habit at work. Of more concern was the discovery that she
obtained the cannabis from Rusty, a paraplegic Rastafarian employee who sells it to other
employees as well. Rusty was very cooperative during the investigation and explains that he had
no religious objections to use it and that cannabis cleanses the soul; something the uptight
managers should discover for themselves. After all, working in a call centre is stressful with little
compensation to show for it. As a paraplegic he also has special needs, which are not sufficiently
provided for by the employer.

Assignment
1.

Consult the Code of Good practice in the LRA, obtain two


policies from reputable employers and determine a strategy
how to deal with the situation in general.

2.

What decision will you make in respect of Ms Van der Boom?

3.

What decision will you make in terms of Rusty?

4.

Will you lay criminal charges?

5.

What will you do about the rest of the employees?

Case study 4
Read the case study below and do the assignment.
Mr. White is a Caucasian male with a tint of grey on his temples. He lodged a grievance because in
his opinion he is better qualified for the position of supervisor, where you recently appointed a
young, inexperienced Black lady with a pleasant demeanor, who has an easy rapport with the
younger employees. She does not know the work processes well, neither is her product knowledge
good. However, she has exceptionally good relationships with the employees who seem to follow
her leadership.
The specifications for the job as set out in the internal advertisement specifies that product
knowledge and system knowledge were essential and that managing people would be part of the
job. It did not specify any preference to previously disadvanced individuals.

Assignment
1.

Research the relevant sections in the EEA. Obtain opinions


from experienced IR consultants and decide whether Mr.
White has a case.

2.

Decide how you will deal with the situation.

3.

What remedies will Mr. White have, if any?

4.

What are the rights of the lady appointed in the job?