LLW2601 Study Guide

LLW2601/501/3/2021
Tutorial letter 501/3/2021
Individual Labour Law

LLW2601
Semesters 1 & 2
Department of Mercantile Law
IMPORTANT INFORMATION:
This tutorial letter contains important information
about your module.
LLW2601/501/3/2021
TABLE OF CONTENTS
1. INTRODUCTION TO THE MODULE ............................................................... 3

2. THE PRESCRIBED TEXTBOOK ..................................................................... 4
3. OVERVIEW OF THE PRESCRIBED TEXTBOOK ........................................... 4
4. STUDY UNIT 1 ................................................................................................. 7
5. STUDY UNIT 2 ............................................................................................... 16
6. STUDY UNIT 3 ................................................................................................ 32
7. STUDY UNIT 4 ................................................................................................ 42
8. STUDY UNIT 5 ................................................................................................ 52
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1. INTRODUCTION TO THE MODULE
Welcome to this module in Individual Labour Law (LLW2601).
In this module we would like to teach you more about the basic employment relationship and
specifically focus on the individual employment relationship. You will also learn more about the
legal consequences which flow from the employment relationship. The most obvious role players
are the employee and the employer. The relationship between them is called the individual
employment relationship. You will learn more about collective labour law in the LLW2602
(Collective Labour Law) module.
When you start a new module it is important to know why that module forms part of your
qualification. In the case of Individual Labour Law the reason is that labour law impacts on the
employment relationship. If you work in Human Resources or when you manage labour relations,
it is important to know that there are legal rules which force you to do certain things, or which
prohibit you from doing certain things. These legal rules set the parameters within which
employment relationships have to be managed.
When a relationship is labelled an employment relationship it falls under the protective scope of
labour law. In addition to the common law, there are various Acts which regulate the labour
relationship. The most important ones are the Labour Relations Act, the Basic Conditions of
Employment Act and the Employment Equity Act.
Other labour Acts are the Skills Development Act, the Compensation for Occupational Injuries
and Diseases Act, the Unemployment Insurance Act, and the Occupational Health and Safety
Act (hereafter ‘OHSA’).
The employment relationship is a concept with which most students are familiar. The impact of
legislation on the relationship and how it is regulated is also well known. What is less well
known and understood is the fact that labour law is based on the same values as ubuntu, an
underlying concept of Africanism.
It is important to understand what ubuntu entails. The African concept of ubuntu is subtle. It
can be described as a set of values expressed through compassion, dignity, group solidarity,
conformity, respect, justice, fairness to others and other similar virtues. Ubuntu finds expression
in the Zulu saying “umuntu ngumuntu ngabantu”, which means that a person is a person
through other people.
This concept was given explicit application in our jurisprudence for the first time in S v
Makwanyane 1995 (6) BCLR 665 (CC). Madala J noted that ubuntu advocates social justice
and fairness.
In a recent matter Lamont J made the following remark:
“Ubuntu is recognised as being an important source of law within the context of strained or
broken relationships amongst individuals or communities and as an aid for providing remedies,
which contribute towards more mutually acceptable remedies for the parties in such cases.
Ubuntu is a concept which, inter alia dictates a shift from (legal) confrontation to mediation and
conciliation.”
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It is important to realise that some of the concepts codified in labour law are similar to the traditional
concept of ubuntu typically found in traditional African societies. Throughout the study material
we will indicate where the principles of ubuntu are echoed by labour law principles, under the
heading: AFRICANISATION AND LABOUR LAW.
2. THE PRESCRIBED TEXTBOOK
The prescribed textbook for LLW2601 is M McGregor & AH Dekker (eds) LABOUR LAW
Rules! 4th ed (2020), Siber Ink. You must purchase this prescribed textbook.
TAKE NOTE: Only the following chapters in the prescribed textbook have to be studied for this
module: Chapter 1 is only to be read for information purposes; chapters 2; 3; 4; 5; 6; 9 and 10
must all be studied.
TAKE NOTE: Various amendments to the law, in particular the BCEA (See Study Unit 2),
have been implemented since the last update to the prescribed textbook. These changes
influence the employment relationship and it is therefore imperative that students should
have an understanding of these changes. The amendments will be addressed in this
study guide, under Study Unit 2 and in Tutorial Letter LLW2601/102/3/2021. Please note
the changes are prescribed for this module, which means students may be tested on it in
the assignments and examination.
Prescribed books can also be obtained from the University’s official booksellers. If you have
difficulty locating your book(s) at these booksellers, please contact the Prescribed Books
Section at 012 429 4152 or e-mail vospresc@unisa.ac.za.
You need to purchase the textbook and work through the book with the help of this
study guide.
3. OVERVIEW OF THE PRESCRIBED TEXTBOOK
The prescribed textbook LABOUR LAW Rules! consists of five parts:
Part I: Introduction to labour law

Part II: Rules applicable during the course of employment
Part III: Rules applicable to the termination of the employment relationship
Part IV: Rules applicable to collective labour law (PART IV IS NOT PART OF THIS MODULE
AND WILL BE COVERED IN LLW2602)
Part V: Annexures
PART I: INTRODUCTION TO LABOUR LAW
Labour law deals with the legal consequences that flow from the employment relationship. It
regulates both the individual and collective employment relationships. The individual
employment relationship is concluded between one employer and one employee. The collective
relationship exists between one or more employers and more than one employee. Employers
may act collectively by way of employers’ organisations, and employees may join trade unions
which represent them in the collective labour arena.
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It is important to understand that the contract of employment forms the basis of the
relationship between the employer and the employee, and consequently, that the principles of
the law of contract apply to this relationship. The law of contract assumes that the parties are in
an equal bargaining position. However, the employment contract is different because the
employer is in a stronger bargaining position and can dictate the terms and conditions of
employment to a large extent. Hence the principles of the law of contract had to be
supplemented by labour laws designed to balance the interests of employees and employers
and to ensure fairness in the employment relationship. Part I consists of one chapter, chapter 1
which gives a brief historical background to South African labour law and contrasts this with
the modern labour law. It also explains the tripartite manner of currently making labour laws,
and discusses the scope of labour laws.
PART II: RULES APPLICABLE DURING THE COURSE OF EMPLOYMENT

This part of the book looks at the requirements set by the law with regard to the following:
• the requirements for the conclusion of a valid contract;

• the effect of certain terms in the contract of employment, for example, restraint of trade
clauses;
• minimum terms and conditions of employment;
• the rights and duties of employers and employees that flow from the contract;
• the consequences that flow from the common law and its impact on the contractual
relationship, for example, the doctrine of vicarious liability;
• the potential and compulsory deductions that must be made from employees’ salaries in
terms of social protection laws, for example, contributions towards the UIA, medical
aid or pension funds;
• the compulsory contributions of the employer in terms of social protection legislation, for
example, the Compensation for Occupational Injuries and Diseases Act (COIDA), or the
Skills Development Act ( SDA);
• in what circumstances terms and conditions of employment can be changed; and
• which actions (or omissions) of the employer will be regarded as unfair labour
practices.
Part II consists of seven chapters. Chapter 2 deals with the exclusive protection provided by
labour laws which only employees enjoy. It clarifies the tests to determine the difference
between an employee and an independent contractor. Chapter 3 discusses the impact of the
common law on the contractual agreement between the parties. Both the law of contract and
the common law determine the rights and duties of employers and employees that flow from
the employment relationship. Chapter 4 looks into the Basic Conditions of Employment Act,
which mainly regulates minimum terms and conditions of employment. Chapter 5 focuses on
the Employment Equity Act, which prohibits unfair discrimination in the workplace and
regulates the implementation of affirmative action measures. In Chapter 6 the Labour
Relations Act is discussed but only as far as unfair labour practices (unfair acts or omissions
by an employer against an individual employee) are concerned. Unfair labour practices are
discussed separately from dismissal, because they occur during actual employment. In
Chapter 7, social security legislation is discussed. The focus in the chapter is on social security
aspects that influence the employment relationship. The chapter is divided into discussions of
social security legislation aimed at prevention of occupational injuries and diseases (in terms of
the Occupational Health and Safety Act, OHSA, and the Mining Health and Safety Act,
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MHSA), the compensation of employees who have suffered occupational injuries or contracted
diseases or lost employment (COIDA, Occupational Diseases in Mines and Works Act
(ODIMWA) and the UIA) and the re-integration of employees into the workplace after injury or
illness (the SDA and the Skills Development Levies Act, SDLA). Chapter 7 is, however, not
prescribed for this module. Chapter 8 deals with the transfer of a business as a going
concern as regulated in terms of section 197 of the LRA. Chapter 8 is not prescribed for this
module.
PART III: RULES APPLICABLE TO THE TERMINATION OF THE EMPLOYMENT

RELATIONSHIP
In this part of the book the different ways in which a contract of employment is terminated, are
discussed. The less confrontational ways are briefly discussed, such as resignation,
retirement, death, and insolvency. The main focus is, however, on the “confrontational” form
of termination, namely dismissal. The LRA allows dismissals for three reasons, namely:
• misconduct;
• incapacity; and
• the operational requirements of the employer.
Misconduct, or “fault”-dismissal, implies that the employee is guilty of misbehaving and then
dismissed. Incapacity and operational reasons are termed “no-fault” dismissals, because the
employee is regarded as a “victim” or caught in circumstances beyond his or her control, which
warrant dismissal. Examples are where an employee cannot perform the required work as a
result of a lack of skills, or as a result of injury, or where he or she is retrenched as a result of
poor economic conditions. The main focus of the chapter is to determine when the conduct of
the employer will be regarded as the dismissal of the employee. If such conduct does constitute
dismissal, the next step is to determine whether the dismissal was automatically unfair, and if
not, whether the dismissal was fair or unfair. The type of dismissal will determine the
requirements for determining whether the dismissal was fair, both substantively and
procedurally.
This part consists of two chapters. Chapter 9 deals with the ways of terminating the employment
contract, the definition of dismissal and automatically unfair dismissals. Chapter 10 deals with
fair and unfair dismissals as well as the dispute resolution process.
At the start of the relationship it is important to determine whether a person qualifies as an

employee, as only employees qualify for protection in terms of labour legislation. This
protection relates to minimum terms and conditions of employment, unfair labour practices,
unfair discrimination, unfair dismissal and participation in industrial action. Once an
employment contract has been concluded and an employee has commenced work, both the
employee and the employer will have to perform as agreed in terms of the contract of
employment. But remember that the employment contract is subject to the minimum conditions
of employment contained in the BCEA and also the rights and duties imposed by the common
law.
As in any other area of life, matters may go wrong in the workplace. For example, during
employment, an employee can get temporarily ill, or injured while on duty, and the provisions of
COIDA or the UIA may apply. An employee may have a grievance against the employer based
on, for example, non-promotion or unfair suspension, and, if unsatisfactorily resolved, the
employee will have to resort to a claim based on an unfair labour practice.
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With regard to dispute resolution, the LRA created the Commission for Conciliation Mediation
and Arbitration (hereafter the ‘CCMA’), the Labour Court and the Labour Appeal Court as
special dispute resolution institutions. The aim is to ensure accessible and fast dispute
resolution. The LRA requires most disputes to be referred for conciliation first, which can be
conducted under the auspices of the CCMA or a bargaining council or a statutory council
registered for a particular sector and area. If conciliation fails, the Act prescribes the dispute
resolution route that must be followed.
These routes can be either arbitration or adjudication. Arbitration is dealt with by either the
CCMA or a bargaining or statutory council. Adjudication is dealt with by the Labour Court. In
the case of arbitration, provision is made for the review of the award. In the case of adjudication,
provision is made for appeal against the decision of the court a quo.
4. STUDY UNIT 1
THE EMPLOYEE
Contents
1.1 WITH WHAT DOES THIS STUDY UNIT DEAL?

1.2 KEY CONCEPTS TO LOOK OUT FOR IN THE UNIT
1.3 PRESCRIBED MATERIAL
1.4 IMPORTANT ASPECTS FOR DISCUSSION
1.5 PRACTICAL QUESTIONS
1.6 AFRICANISATION AND LABOUR LAW
In this study unit we discuss the protection of employees in terms of labour legislation. Note
should be taken that only employees are protected by labour legislation. It is therefore
important to be able to draw a distinction between employees and other workers, for example
independent contractors. You should also understand that it is only when a relationship is
labelled as an employment relationship that it falls under the protective scope of labour laws.
The employment relationship in South Africa is regulated by the following three main sources:
the Constitution, labour legislation and the law of contract regulated by common law.
This study unit also looks at the impact which the common law has on the contract of
employment which is the foundation of the employment relationship.
Once you have worked through this study unit, you should be able to draw the distinction between
an employee and an independent contractor; know and describe the different tests used by the
courts to determine whether a person is an employee or not; identify the categories of workers
protected by labour legislation and those that are not; describe the nature and extent of the
protection offered by legislation to those who qualify as employees; know who the non-
standard employees are and the extent to which they are protected by legislation, the
protection and regulation of illegal and foreign workers; regulation of temporary employment
services/labour brokers, the purpose of the Employment Services Act 4 of 2014 and the
Employment Tax Incentive Act 26 of 2013; and lastly you should know who an employer is.
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With regard to the impact of the common law on the employment relationship, you must
understand how the common law applies to South African labour law, how a contract is
concluded and terminated, the duties and rights of the employer and employee, how a contract
can be breached, the remedies for breach of contract, the application of a restraint of trade and
vicarious liability.

• Employee
• Employer
• non-standard employee
• labour broker
• independent contractor
• control test
• organisation test
• dominant impression test
• economic capacity test
• reality test
• illegal workers
• foreign workers
• the common law
• the contract of employment
• breach of contract
• restraint of trade
• temporary employment services
• termination of contract
• vicarious liability

 Chapters 2 & 3 of the prescribed book
 Definition of employee in sections 200A and 213 of the LRA; section 1 of the BCEA
1.4.1 An employee and an independent contractor
It is important to know the difference between an employee and an independent contractor

as labour laws only apply to employees. Both the LRA and BCEA define ‘employee’. Note that
the definition includes employees in the private and public sectors, and domestic and farm
workers. It also includes any person who in any manner assists in carrying on or conducting the
business of an employer. However, at the moment no legislation provides any definition of an
independent contractor.
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Also take note of the following five tests that have been developed by the courts and are used
to determine who is an employee and who is an independent contractor: the control test, the
organisation test, the dominant impression test, the economic capacity test, and the reality
test. You must be able to differentiate between these five tests. Study paragraph 2 on pages
21-25 in Chapter 2 of your prescribed textbook to understand what these tests entail.
On the other hand the LRA and BCEA (sections 200A and 83A, respectively) contain a
rebuttable presumption regarding who an employee is and who is not. You should remember
that in terms of this presumption a person who works for or renders services to another is
presumed to be an employee if one or more of the factors listed in the sections are present.
Also make sure that you know the different categories of non-standard employees. Study
paragraph 4 on pages 26-33 in Chapter 2 of your prescribed textbook regarding non-standard
employees and their protection.
Take note that illegal workers and foreign workers are not employees for purposes of the LRA and as
a result cannot receive any protection from the Act. It is, however, also important to note that
these workers may still receive protection in terms of section 23 of the Constitution. In this
regard, read paragraphs 6.1 and 6.2 on pages 34-37 in Chapter 2 of your prescribed textbook
where the Kylie case and the Discovery Health case are discussed. The employment and
protection of foreign workers are regulated by the Employment Services Act 4 of 2014. The Act
aims to regulate the employment of foreigners in order to ensure work opportunities and
economic development of South African citizens and to stop employers in the country from
treating foreign nationals badly. On the other hand there is the Employment Tax Incentive Act
26 of 2013 which provides for subsidies intended to encourage the employment of young
people by the private sector employers.
1.4.2 Employers/Labour brokers
Take note that the National Minimum Wage Act, 2018 is the only piece of labour
legislation that provides a definition of an “employer”. It defines an “employer” as any
person who is obliged to pay a worker for the work that the worker performs for that
person. Kindly amend para 7 on page 38 of your prescribed textbook to read in line with
this. Also take note that temporary employment services/labour brokers are now required to
register with the Registrar of Private Employment Services. Both the client and the labour
broker (employer) may (jointly and severally) be held liable by the employee in the case of any
contravention of labour laws. Study paragraph 8 in Chapter 2 of your prescribed textbook
regarding the position of labour brokers.
1.4.3 The common law and the contract of employment
The contract of employment is regulated by the common law, like any other type of contract.
Note should be taken that in cases where a specific labour matter is not covered by the LRA or
any other labour legislation the common law will apply. In order for a contract of employment to
be valid parties to the contract must have satisfied all the following common law requirements
for the conclusion of a valid contract: the parties must agree, have capacity to enter into the
contract, the contract must be lawful and possible to perform, and where the parties agreed on
formalities, those formalities must have been complied with. Remember, however, that the law
does not require the contract of employment to be in writing.
Study paragraph 4.2 on pages 49-51 in Chapter 3 of your prescribed textbook regarding the
general principles that govern contracts and regarding the information that the employer must
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provide to the employee in writing in terms of the BCEA.
1.4.4 Duties of the employer and employee
The duties of employers and employees flow from the contract of employment, from labour
legislation, the common law and collective agreements. The primary duty of the employee is to
make his or her services available to the employer and the main duty of the employer is to
remunerate the employee for making his or her services available to the employer. It is
important to understand that it is thus not necessary for the employee to perform actual work in
order to receive remuneration. Note the special instances where the employer will be required
to provide an employee with work in paragraph 2.1.2 on page 44 in Chapter 3 of your
prescribed textbook. Also study the whole of paragraph 2 on pages 44-47 in Chapter 3 of your
prescribed textbook regarding the other common law duties of the employer and employee.
1.4.5 Vicarious liability
In terms of this doctrine the employer may be held liable for the wrongful acts or omissions of the
employee, committed during the course of the employee’s employment, provided certain
requirements are met. In other words the employer is held accountable for the wrongs the
employee committed while advancing or serving the interests of the employer.
1.4.6 Restraint of trade
A restraint of trade clause is included in a contract of employment to protect the employer’s

interests during the employee’s time of employment and after the employment relationship has
ended. Remember, however, that the court will not enforce a restraint of trade against an
employee where the employee can prove that the restraint is unlawful or unreasonable.
Remember that there are factors that need to be taken into account when the reasonableness of
a restraint of trade is considered. Note the questions and factors that need to be considered in
determining the reasonableness of a restraint of trade in paragraph 4.4 on pages 51-53 in
Chapter 3 of your prescribed textbook.
1.4.7 Breach of contract
Where either of the two parties to an employment contract fails to perform in terms of the
contract, such failure might amount to breach of contract. While the breach of a contract by the
employee will most probably result from misconduct, a breach by an employer may be a result
of an unfair labour practice, unfair discrimination or an unfair dismissal.
You should know what constitutes breach of contract and the remedies available to the
innocent party in the case of breach.
1.4.8 Changes to terms and conditions of employment
There are a number of ways in which the terms of an employment contract can be changed by the
parties to the contract. Neither of the parties, especially not the employer, can unilaterally
change the terms of the contract of employment at will as that can amount to a breach of
contract in the form of a repudiation of an existing contract. Study paragraph 4.5 on pages 53-
54 in Chapter 3 of your prescribed textbook and make sure that you understand the ways in
which the terms and conditions of employment may indeed be changed.
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1.5 QUESTIONS
The questions below are very important as they give you an idea of how questions are
asked whether in the assignments or in the examination. We have provided examples of:
practically based questions and how they should be answered, straight-forward questions
and how they should be answered as well as multiple-choice questions (note that in the
case of multiple-choice questions you will only be required to select the correct answer
without any motivation being required). Pay attention to the questions and how the
questions are answered particularly in light of the mark allocation. You must always study
questions and answers provided to you thoroughly as you might get the same and/or
similar types of questions in the assignments and/or the examination.
CHAPTER 2
Question 1 – example of a practically based question
Bob employs Joe, a foreign national, as a driver without asking for a work permit. A while later, he
discovers that Joe does not have a valid work permit after requesting him to produce same. Three
months thereafter, he calls Joe to his office and informs him that his employment will be terminated
with immediate effect and that he will not receive his salary for the month because he does not have a
valid work permit.
Discuss fully whether Bob was lawfully entitled to employ Joe without a valid work permit, dismiss
him summarily and withhold his last month’s salary. (5)
Answer:
You will note that the question has three parts as follows: (1) whether Bob was lawfully entitled to
employ Joe without a valid work permit; (2) whether Bob was lawfully entitled to dismiss Bob
summarily; and (3) whether Bob was lawfully entitled to withhold Bob’s last month’s salary.
You have to address all these three aspects in order to obtain maximum marks in the question. If
you fail to answer one or two of the aspects then you will not be able to obtain maximum marks
and you will consequently fail the question.
(1) In terms of the Employment Services Act (ESA) an employer may not employ a foreign
national within the country if that person cannot produce an applicable and valid work permit.
Anyone who contravenes this shall be guilty of a criminal offence. Bob was thus not permitted
to employ Joe and he is guilty of an offence as he realised after employing Joe that he does not
have a valid work permit.
(2) Illegal foreigners will be protected by the Constitution which, inter alia, guarantees everyone’s
right to dignity and fair labour practices. Bob was thus not entitled to dismiss Joe summarily
because this infringes on his right to fair labour practices and right to dignity.
(3) The ESA allows foreign employees employed without a work permit to enforce any claim they
may have in terms of statute or employment relationship. An employer may not intentionally
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hire workers without a valid work permit in order to escape its obligations in terms of the
employment contract. An illegal foreigner may still be able to enforce his/her contractual rights
against the employer. An employer who employs an illegal foreigner may not refuse to pay that
worker on the basis that the worker is an illegal foreigner and the employer will not escape
liability by relying on the illegal relationship. Bob will thus not be able to withhold Joe’s last
month’s salary.
Question 2 – example of a straight-forward question
In terms of the LRA, an employer may not employ an employee for longer than three months on one or
successive fixed-term contracts unless the employer can demonstrate a justifiable reason for doing so.
Mention the nine (9) reasons provided in the LRA that will justify the extension of a fixed-term
contract for longer than three months. (9)
Answer:
This question simply requires you to mention (list) the nine reasons that will justify the extension of a
fixed-term contract for longer than three months. You should get full marks for the question if you study
the work properly.
The LRA determines that justifiable reasons for a fixed-term employee will be where such an
employee:
 Is replacing another employee who is temporarily absent from work
 Is employed on account of a temporary increase in the volume of work which is not expected to
endure beyond 12 months
 Is a student or a recent graduate who is employed for the purpose of being trained or gaining
work experience
 Is employed to work exclusively on a specific project that has a limited or defined duration
 Is a non-citizen who has been granted a work permit for a period
 Is employed to perform seasonal work
 Is employed for the official public works or similar scheme
 Is employed in a position which is funded by an external source for a limited period
 Has reached the normal or agreed retirement age applicable in the employer’s business and
continues to perform work for that employer
Question 3 – example of a multiple-choice question
Which ONE of the following statements about the definition of employee is CORRECT?
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1. An employee is any person who works for another person whether he/she receives any
remuneration from that person or not.
2. The definition of an employee includes a person who works for another person but not for the
State/government.
3.* An employee is any other person who in any manner assists in carrying on or conducting the
business of an employer.
4. The definition of an employee excludes domestic and farm workers.
(2)
Answer: 3 is the Correct answer. You must go through the options carefully and you must
ascertain why options 1, 2 and 4 are not the correct answers. You should be able to do this after
studying the relevant work.
Which ONE of the following statements regarding a “fixed-term contract employee” is CORRECT?
1. The employee may under no circumstances be treated less favourably than a permanent
employee who performs the same work.
2.* The employee will be entitled to severance pay when employment is terminated if he or she was
employed for longer than twenty-four months.
3. The employee may under no circumstances be appointed in a position which is funded by an
external source for a limited period.
4. The employee’s contract of employment comes to an end when he or she reaches the agreed
retirement age.
(2)
CHAPTER 3
Bob was employed by Company X as a labour relations officer dealing with labour related matters.
Company X manufactures and sells specialised laboratory instruments. Bob was in no way involved in
the manufacturing and selling of these instruments. Bob’s contract of employment contains a clause
which states that he may not use nor disclose confidential information or trade secrets should he leave
the company. After working for Company X for more than 5 years, Bob resigns to join another
company which also manufactures and sells specialised laboratory instruments as a labour relations
officer. Company X informs Bob that it intends enforcing the restraint of trade against him. Discuss
fully whether Company X will succeed in enforcing the restraint of trade against Bob. (5)
Answer:
This question requires you to answer the question by applying the law to the facts of the question.
The question clearly asks you to discuss whether company X will succeed in enforcing the
restraint of trade against Bob.
A restraint of trade clause is lawful and enforceable unless it is unreasonable. It would be unreasonable
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if it merely tries to prohibit the ex-employee from earning a living and would also be contrary to public
policy.
There is no interest deserving of protection and Company X will not be able to prove the existence of a
protectable interest.
Bob does not have confidential information/trade secrets regarding the specialised laboratory
instruments as he was only involved with labour related matters.
It is unreasonable to restrain a former employer from using his knowledge, skills, experience to make a
living because public policy requires that people should be free to compete fairly in the market place to
sell their skills and knowledge to their own best advantage.
There is nothing in need of protection.
Question 2 – example of a straight forward question
Describe the employee’s duty to render services to the employer. (4)
Answer:
The question clearly asks you to describe (discuss) the employee’s duty to render services to the
employee. You must pay attention to how the question is answered.
The primary duty of the employee is to place his/her labour potential or capacity at the disposal of the
employer.
The duty includes the employee’s duty to enter and remain in the employer’s service.
The employee who fails to enter and remain in the employer’s service will not receive any remuneration
from the employer.
There might be exceptions such as when the employee is on approved leave.
Question 3 – straight forward question
List the FIVE (5) different ways in which contractual terms and conditions of employment can be
changed. (5)
Answer:
This question clearly asks you to list the different ways in which contractual terms and conditions of
employment can be changed. You should get full marks for the question if you study the work properly.
• By agreement between the employer and the employee;

• By way of the method prescribed in the contract of employment;
• By means of a collective agreement between the employer and the relevant trade union;
• By operation of the law, for example, amendments to the BCEA; and
• By way of a sectoral determination.
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Question 4 – example of a multiple choice question
Which ONE of the following statements about a ‘restraint of trade clause’ is CORRECT?
1.* A restraint of trade clause is included in the contract of employment to protect the interests of
the employer against unfair competition from employees after their employment has ended.
2. A restraint of trade clause is included in the contract of employment to protect the interests of
both employers and employees in an employment relationship.
3. A restraint of trade clause is included in the contract of employment to protect the interests of
employees in an employment relationship.
4. A restraint of trade clause is included in the contract of employment to prohibit an ex-employee
from earning a living using the same skills he or she learned from his/her former employer.
(2)
The phenomenon of employees migrating is increasing worldwide, but especially in the SADC
(the Southern African Development Community) region. South Africa is one of the major
receiving countries of migrants in Southern Africa. Migrant workers are vulnerable workers as
they are often without documentation and therefore susceptible to exploitation. They are often
also excluded from access to benefits such as unemployment insurance and workmen’s
compensation.
Not all migrant workers are in the country illegally. They can be illegal, or legal with temporary
work permits, they can be permanent residents, or even asylum seekers.
In the case of ‘Kylie’ v CCMA & others [2010] 10 BCLR 1029 (LAC) the Labour Appeal Court
held that even in cases where an employment contract may not be valid, the vulnerable employee
may have the right to fair labour practices in terms of the Constitution.
This would mean that since an employment contract with an illegal migrant worker is not valid
(since someone without a valid work permit or who is in the country illegally cannot conclude a
valid contract of employment) the worker still has the right to fair labour practices. If such a
worker is unfairly dismissed, that worker may have a remedy in terms of the Constitution.
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5. STUDY UNIT 2
THE BASIC CONDITIONS OF EMPLOYMENT ACT
Contents

In addition to the consequences of the common law, the law of contract and customs in the
workplace (which were dealt with in the previous study unit), legislation also has an important
impact on the employment relationship. This study unit looks at the impact of the BCEA on the
employment relationship.
The BCEA establishes basic/minimum terms and conditions of employment for employees. You
should know the various provisions regarding all the minimum employment conditions. These
are set out in detail in your prescribed textbook. The changes to the BCEA, as noted under
point 2 of the Introduction above, are not addressed in the prescribed textbook, however,
students should study the content of study guide and Tutorial Letter LLW2601/102/3/2021 to
familiarise themselves with these amendments. The amendments to the BCEA forms part of
the prescribed material for this course. An employer is obliged by the BCEA to give an
employee the minimum entitlements/terms and conditions. Generally, employers and
employees may deviate from these minimum conditions to improve them but not to provide less
favourable conditions.
The Act regulates the variation of basic conditions by way of different mechanisms (within the
parameters of a policy of ‘regulated flexibility’- a framework within which a balance can be
struck between the interests of the employer and the interest of employees in work security).
The minimum terms and conditions of employment which the Act prescribes constitute terms and
conditions of employment contracts.
The BCEA is applicable to almost all employees. By having such a broad scope of application,
it protects employees who have little bargaining power as individuals. It also applies to
employees who are members of trade unions, who have greater bargaining power, and are
able to negotiate better conditions than those contained in the BCEA.
Certain employees are totally excluded from the Act while others are partially excluded.
Some employees are subject to Ministerial determinations and collective agreements which
regulate, for example, wages, but may, in addition, have other conditions of employment which
are regulated by the BCEA. In such instances, the BCEA must be read in conjunction with the
relevant determination and/or collective agreement to determine the employee’s terms and
conditions.
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Compliance with the provisions of the BCEA is enforced by inspectors of the Department of
Labour and the Labour Court. You should know the enforcement mechanisms used when an
employer does not comply with the provisions of the Act.
Child labour is an important topic which is also dealt with in this unit. Also remember that
forced labour is prohibited by the BCEA.
• the scope of the BCEA: total and partial exclusions

• conditions in the BCEA constitute terms of employees’ contracts of employment
• maximum working time per day/week
• maximum overtime per day/week and rates for overtime
• meal intervals
• work on and rates for Sundays/public holidays
• night work
• daily and weekly rest periods
• compressed work week and averaging hours of work
• different forms of leave: vacation/maternity/family responsibility/sick leave/ parental
leave/ adoption leave/ commissioning parental leave
• prohibition of work by children
• prohibition of forced labour
• prohibition of exploitative practices by employers
• wages
• notice periods
• severance pay
• certificate of service
• variation of basic conditions
• the enforcement of the BCEA
 You have to study the whole of chapter 4.

 You also have to study Tutorial Letter LLW2601/102/3/2021
There are extra sources listed at the end of the chapter in your prescribed textbook for students
who are interested in the application of the BCEA and want to read wider. Although you will not
be tested on these, they will enrich your understanding of the manner in which the legislator
wants to protect employees by prescribing minimum terms and conditions of employment.

2.4.1 Introduction
The BCEA, basically, gives effect to the constitutional right to fair labour practices. It thus:
• establishes and enforces basic conditions of employment,

• regulates the variation of such conditions by way of different mechanisms;
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• gives effect to international standards for work by children;
• ensures decent work for all workers; and
• prohibits exploitative conduct by employers towards employees.
A basic condition of employment in the BCEA constitutes a term of any contract of

employment, except where:
• any other law provides a term more favourable to an employee;

• the basic condition has been replaced, varied or excluded in terms of the Act; or
• a term of the contract is more favourable to the employee than the basic condition.
2.4.2 Scope of application
You must be able to recognise which employees are fully excluded from the Act, namely:
• members of the National Defence Force,

• members of the State Security Agency,
• unpaid volunteers working for charitable organisations,
• people undergoing vocational training except to the extent that any term of their
employment is regulated by the provisions of any other law;
• people employed on vessels at sea; and
• independent contractors.
Certain groups are also partially excluded. For example, employees who work for less than 24
hours a month for an employer, are excluded from chapter 3 of the BCEA, which regulates
leave.
It is important to remember that some employees are subject to sectoral and ministerial
determinations and collective agreements which regulate, for example, wages, but may, in
addition, have other conditions of employment which are regulated by the BCEA. In such
instances, the BCEA must be read in conjunction with the determination/s and the collective
agreement to determine the employee’s terms and conditions.
2.4.3 Minimum working conditions
For the sake of convenience, the summaries with regards to all working conditions and
relevant exclusions are, to a large extent, repeated here. You need to have a good knowledge
of all of these minimum terms and must be able to apply them in practice.
(a) Working time
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Exclusion: Employees excluded from protection relating to working hours are:

• senior managerial employees;
• sales staff who travel to the premises of customers and who regulate their own hours of work;
• employees who work less than 24 hours a month for an employer; and
• employees who earn more than R205 433 per year
Regulation Additional comments

Regulation Additional comments
• a maximum of 45 hours a The Act requires employers to endeavour to
week. reduce the maximum ordinary hours to 40 hours
Maximum working hours
• If the employee works 5 days a a week and eight hours a day, through collective
week or less, he or she may not bargaining and sectoral determinations. These
work more than 9 hours a day. hours may be extended by agreement by up to 15
• If the employee works 6 days or minutes a day, but no more than an hour per
more a week, he or she may week, if employees serve members of the public.
not work more than 8 hours a
day (these hours include an hour
lunch break).
An employee is entitled to a meal The meal interval can, by agreement, be
interval of at least one hour after reduced to 30 minutes, or be done away with if
five hours of continuous work. the employee works fewer than six hours per
Lunch
day.
Maximum of 10 hours per week. An employee may work overtime only by

This may be increased to a agreement. An employee who works overtime
maximum of 15 hours a week by a has to be paid one-and-a-half times normal
collective agreement for up to two pay or have paid time-off. An agreement to
months in any period of 12 work overtime may not be for more than a
months. total of 12 hours (ordinary hours plus
Overtime
overtime) on any particular day.
The same principle and payment scale apply to

The employee has to be paid
work performed on public holidays. If the
double the normal rate of pay.
employee normally works on Sundays, the
employee has to be paid one-and-a-half times
the normal rate. If an employee normally works
on a public holiday, she /he will still be entitled
to double pay for that day.
Sundays
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The employee must be given: Night work is work that is performed after
18h00 and before 6h00 the next day. It can only
• an allowance, or
be worked in terms of an agreement. Employees
• a reduction in hours of work,
who regularly work after 23:00 and before
and
06:00 the next day must be informed of any
• be provided with transport health and safety hazards and the right to
between the employee’s place of
residence and the workplace. undergo a medical examination.
Night work
An employee is entitled to: The BCEA makes provision for daily and
weekly rest periods.
• a daily rest period of 12
hours between ending and
recommencing work, and
Rest periods
• a weekly rest period of at least

36 consecutive hours, which
generally, has to include Sundays.
Parties may agree that the em- The Act allows for averaging of working hours
ployee will work up to 12 hours in and overtime where hours are calculated over a
a day (including a meal interval) period of time. This is to cater for peak periods
without receiving overtime pay, in certain sectors, for example, agriculture where
provided that the employee: during harvest time employees may agree to
extended hours of overtime to a maximum of 15
• does not work more than 45
hours per week, but which will no longer be
ordinary hours in any week,
necessary after harvesting time.
• more than 10 hours’ overtime
in any week, or
Compressed work week
• on more than five days in any

week.
Ordinary hours and overtime can
be averaged over a period of up to
four months in terms of a
collective agreement.
(b) Leave
Kindly note that the amendments to the BCEA in the form of parental leave; adoption
leave and commissioning parental leave became effective on 1 January 2020. This means
that these changes are now in force. These amendments are also addressed in Tutorial
Letter LLW2601/102/3/2021.
Exclusion: Chapter 3 of the BCEA, which deals with leave, does not apply to employees who work for less than
24 hours a month for an employer. Such workers will be entitled to the leave agreed upon between the employer
and employee.
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The BCEA makes provision for a Employers and employees may agree on
minimum of 21 consecutive (calen- additional leave, either paid or unpaid.
Vacation leave
dar) days paid vacation leave (ex-

cluding public holidays) per year for
most employees.
An employee is entitled to four

The employee must notify the employer in
consecutive months’ maternity leave, writing of the dates of the leave she intends
which may commence at any time from to take. It is unpaid leave but she may claim
four weeks before the expected date of from the UIF. Remember the BCEA sets
birth, or on a date that a medical the minimum but the parties can also agree
practitioner or midwife certifies that it to more favourable terms, for example, paid
is necessary either for the employee’s maternity leave.
health or her unborn child.
Maternity leave
An employee may not work for six

weeks after the birth of her child. If
an employee miscarries in the third
trimester of her pregnancy or has a
still born child, she is entitled to six
weeks’ leave after the miscarriage or
still birth.
An employee is entitled to three days
Available only for employees who have
family responsibility leave for every
worked for longer than four months and
12 months worked. Family respon-
sibility leave may be taken when an who work at least four days a week. The
employee’s child is sick, or in the event interpretation is strict. For example, no
of the death (but not illness) of the provision is made for leave to be taken in
employee’s spouse or life partner, the event of the death of in-laws or
parent, adoptive parent, grandparent, members of the extended family and leave
child, adopted child, grandchild or relating to illness is limited to children only.
sibling. No provision is made for
leave in the event of the death of in-
laws.
Please note that the amendments
to the BCEA have the effect that
family responsibility leave is no
longer applicable to the event
when an employee’s child is born.
This is so because, section 25A of
the BCEA now provides for 10
consecutive days parental leave for
Family responsibility
when an employee’s child is born.

Kindly amend the block
addressing family responsibility
leave on page 62 of your prescribed
textbook to read in line with this
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The BCEA provides for six weeks A leave cycle is calculated as the number
paid sick leave in every three-year of days that the employee would normally
cycle worked. If an employee has work during a six-week period. If an
been absent from work for more employee works five days a week, he or
than two consecutive days or on she would work 30 days in six weeks and
more than two occasions in an that would entitle him or her to 30 days
eight-week period, the employer may sick leave in three years.
Sick leave
request the employee to submit a

medical certificate. Such a certificate
must be issued by a medical doctor
or a person registered with a
professional council.
The BCEA provides that an Family responsibility leave no

employee who is a parent of a longer applies to the birth of the
child is entitled to at least 10 child;
consecutive days parental leave;
An employee must notify (at least
The leave may commence on the one (1) month before the expected
day the employee’s child is born; birth of the child, date of adoption
or the date that the adoption order or date the child is placed
order is granted; or the date that with adoptive parents; or as is
the child is placed in the care of a reasonably possible) an employer in
prospective adoptive parent by a writing (unless he or she is not able
Parental Leave
competent court, pending the to do so) of the date on which the

finalisation of an adoption order employee intends to commence
in respect of the child; with the leave and the date on
which the employee shall return to
work;
This is unpaid leave, but the

employee will be entitled to claim
benefits in terms of the
Unemployment Insurance Act,
2001.
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The BCEA provides that an If an adoption order is made in respect

employee who is an adoptive of two adoptive parents; or where a
parent of a child who is below the court orders that a child be placed
age of 2 is entitled to adoption in the care of two prospective
leave of at least 10 weeks adoptive parents, pending the
consecutively or parental leave of finalisation of an adoption order in
at least 10 consecutive days; respect of the child, one parent may
apply for adoption leave and the
The leave may commence on the other for parental leave. The
date that the adoption order is selection of the choice must be
granted; or the date a child is placed exercised at the option of the
with a prospective adoptive parent prospective parents;
by a competent court, pending the
finalisation of an adoption order in An employee must notify (at least
respect of the child; one (1) months’ notice, or as soon
as it is reasonably practicable) in
writing (unless the employee is unable
to do so) of the commencement and
end dates of the leave ;
This is unpaid leave, but the employee

Adoption Leave
will be entitled to claim benefits in

terms of the Unemployment Insurance
Act, 2001.
NOTE: The difference between

Parental Leave and Adoption Leave, is
that Adoption Leave will be applicable
when:
 A child is adopted;
 And the child is 2 years or
younger;
If the child is older than 2 years,

then Parental Leave will be
applicable
Parental Leave entitles the employee

to 10 days leave, while Adoption
Leave entitles the employee to 10
weeks leave.
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In terms of the BCEA, an If there are two commissioning
employee who is a commissioning parents, one parent may apply for
parent in a surrogate motherhood commissioning parental leave and
agreement is entitled to another for the parental leave,
commissioning parental leave of provided that th e selection of
at least 10 weeks consecutively or choice is exercised at the option of
parental leave of at least 10 the two parents;
consecutive days;
An employee must notify (at least
Commissioning Parental Leave
Leave may commence on the one (1) month before a child is

date a child is born as a expected to be born) an employer in
result of a surrogate writing (unless if unable to do so) of
motherhood agreement; the commencement and end dates
of leave (or as soon as is reasonably
practicable);
This is unpaid leave, but the

employee will be entitled to claim
benefits in terms of the
Unemployment Insurance Act,
2001.
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(c) Other matters

For the sake of convenience, the summaries of the provisions on wages, notice periods,
severance pay and a certificate of service are, to a large extent, repeated here. You need to
have a good knowledge of all of these and should be able to apply them in practice.
The national minimum wage is a basic condition of employment for the purposes of
the BCEA in terms of recent amendments to the BCEA. The national minimum wage
is regulated by the National Minimum Wage Act, 2018 which has come into effect on
2 January 2019. There is thus now a relationship between the BCEA and minimum
wages as contained in the National Minimum Wage Act. Kindly amend para 3.3.1
on pages 62-63 of your prescribed textbook to read in line with this. The
purpose of the National Minimum Wage Act is to advance economic development
and social justice by: (a) improving the wages of the lowest paid workers; (b)
protecting workers from unreasonably low wages; (c) preserving the value of the
national minimum wage; (d) promoting collective bargaining; and (e) supporting
economic policy. Section 9A(1) of the National Minimum Wage Act deals with a daily
wage payment and to this end states that an employee who works for less than four
hours on any day must be paid for four hours work on that day. This only applies to
those employees who earn the threshold amount and less (threshold amount: R205
433 per year).
In terms of the National Minimum Wage Act employees are to be paid a minimum wage
of R20.76per hour. This applies to all sectors with the following exceptions:
• Domestic workers: R15.57 per hour (Domestic worker refers to an employee who
performs domestic work in a private household and includes the following persons: (a) a
gardener; (b) a person employed by a household as a driver of a motor vehicle; (c) a
person who takes care of children, the aged, the sick, the frail or the disabled; and (d)
domestic workers employed or supplied by employment services).
• Farm workers: R18.68 per hour (Farm worker refers to an employee employed mainly
or wholly in connection with farming or forestry activities, and includes the following
persons: (a) a domestic worker employed in a home on a farm or forestry environment;
(b) a security guard on a farm or other agricultural premises but excludes a security guard
employed in the private security industry in terms of the Private Security Industry
Regulation Act, 2001).
• Workers employed on Expanded Public Works: R11.42 per hour (Expanded public
works programme means a programme to provide public or community services
through a labour intensive programme determined by the Minister in terms of section 50
of the Basic Conditions of Employment Act and funded from public resources).
Employers in the Hospitality Sector (where the minimum wage is currently R17.34 if the
employer employs less than ten (10) employees) and Wholesale and Retail Sector (where
Payment of wages
different categories of employees receive less than R20 per hour, with the lowest being
R16.20), are required to increase the minimum wages to R20 per hour with effect from 2
January 2019. Employers can apply for exemption of up to 10% reduction either by
using an online system (the National Minimum Wage Exemption System) or by
approaching the Department of Labour. Employers who fail to apply the minimum wage
will be liable to pay a fine.
Collective agreements concluded in bargaining councils and ministerial and sectoral

25
determinations may establish minimum wages that are more favourable.
Employees must be paid in South African currency either daily, weekly, fortnightly or
LLW2601/501/3/2021
A contract of employment for an indefinite period may be terminated by either the
employer or the employee by giving notice to the other party of an intention to
terminate the contract. Notice must adhere to the notice periods required in terms
of the contract of employment. However, if the contract does not make provision for
a notice period, both the employer and the employee have to comply with the
minimum notice periods provided by the BCEA.
The BCEA provides that a contract of employment must be terminated in writing
and by way of a notice period of not less than:
• one week, if the employee has been employed for six months or less;
• two weeks, if the employee has been employed for more than six months
but not more than one year; and
• four weeks, if the employee has been employed for one year or more, or is a farm
worker or domestic worker who has been employed for more than six months.
While notice periods may generally not be shortened, the period of four weeks’
notice may be reduced to two weeks by collective agreement. In addition, the BCEA
allows an employer to pay an employee an amount equivalent to the salary the
Notice periods
employee would have earned during the notice period, instead of requiring the
employee to work such period.
When an employee is dismissed based on the operational requirements of the

employer in terms of the LRA (see chapter 10 of the prescribed textbook), the
employer must pay the employee severance pay equal to at least one week’s pay for
each completed year of continuous service with that employer. An employee who
unreasonably refuses to accept an offer of alternative employment with that employer
or any other employer, is not entitled to severance pay.
Take note that an employee whose fixed-term contract of employment has been
justifiably extended beyond 24 months is also entitled to a severance package of
one week’s salary per completed year of service.
Severance pay
An employer is required to provide an employee with a certificate of service when

Certificate of service
the employment comes to an end. Such certificate must state, amongst others, the
date of commencement of work, the job description and the remuneration at the
time of the termination. The reason for the termination of the employment may be
stated only at the employee’s request.
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contributions
The employer who deducts a contribution from an employee for a benefit fund (for
funds
example a retirement fund or medical aid funds) is compelled to pay the amount to the
fund within seven days.
to benefitof
Payment
(d) Prohibition of work by children, forced labour and exploitative practices by employers
Note that children under the age of 15 years may not work, except under certain circumstances:
• Children who are at least 15 years old are no longer subject to compulsory schooling
in terms of any law and may perform in advertising, sporting and artistic activities, but
only in terms of regulations issued by the Minister of Labour on advice of the
Employment Conditions Commission or a ministerial or sectoral determination.
• The child’s remuneration must be paid to the parent or guardian of the child.
• For children younger than 10 years, the maximum working hours per day is three, and
for children older than 10 years, four.
• Rest periods must be provided, to children older than 10 years after two hours of
continuous work, and to children younger than 10 years after an hour and a half of
continuous work.
• Nutritious food and drinks must be provided to children when they work.
• Safe areas for resting and playing must be provided for working children.
• Safe transport must be provided for the children between their homes and their
workplaces.
• A child may not be required or permitted to perform or to provide services that are
inappropriate for her/his age, place the child’s well-being, education, physical or mental
health, or spiritual, moral or social development at risk.
• No one may be forced to work, as the BCEA prohibits slavery and forced labour.
• Employers may not perform any exploitative practices towards their employees or
potential employees.
2.4.4 Enforcement of the BCEA
The BCEA is enforced in two ways:
• by the Labour Court

• by inspectors of the Department of Labour
You should know the powers of the court and the inspectors to enforce the Act.
2.4.5 Variation of basic conditions
Remember that the BCEA allows for some terms and conditions of employment to be varied
(and in different ways). However, core terms cannot be varied at all. These core terms are:
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• maximum working hours;

• provisions relating to night work;
• provisions relating to sick leave;
• 4 months’ maternity leave; and
• a minimum of 2 weeks annual leave.
Other rights can be changed, replaced or excluded, in terms of the BCEA, by way of:
• collective agreements
• ministerial determinations; and
• the contract of employment.
You need to understand:
• how these various mechanisms operate and

• in what circumstances they are used.
2.4.6 Sectoral determinations
One way in which conditions of employment are established, is by way of a sectoral

determination by the Minister of Labour. You need to know the requirements for such a
determination. You should also be able to provide examples of sectors in which sectoral
determinations are found and the reasons why they are found in these particular sectors.
2.5 QUESTIONS
practically based questions and how they should be answered, a straight-forward question
and how it should be answered as well as multiple-choice questions (note that in the case
of multiple-choice questions you will only be required to select the correct answer without
any motivation being required). Pay attention to the questions and how the questions are
answered particularly in light of the mark allocation. You must always study questions
and answers provided to you thoroughly as you might get the same and/or similar
types of questions in the assignments and/or the examination.
Mrs X has just joined a large IT company in Gauteng as an IT specialist. She is pregnant. She is afraid
that she might lose her job if she asks her new employer for time-off to give birth and take care of her
child.
Advise Mrs X fully regarding maternity leave available to pregnant women, what it entails and what
she needs to do if she wants to apply for such leave? (5)
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Answer:
This question requires you to address three things (aspects). (1) Advise Mrs X regarding
maternity leave available to her as a pregnant woman, (2) what maternity leave entails and (3)
how she must apply for such leave. You must address these three aspects in order to obtain
maximum marks in the question. It is very important to ascertain what the question requires
from you.
(1) Mrs X must know that an employee is entitled to four consecutive months’ unpaid maternity
leave.
(2) Maternity leave is unpaid leave and Mrs X may claim from the UIF/UIA. There may be an
agreement in place which provides for paid maternity leave.
The leave may commence anytime from four weeks before the expected date of birth or on a
date that a medical practitioner or midwife certifies that it is necessary either for her health or
for her unborn child.
Mrs X must also know that she may not work for six weeks after the birth of the child.
If she has a miscarriage in the third trimester of her pregnancy or has a stillborn child, she will
be entitled to six weeks leave after the miscarriage or still birth.
(3) What she needs to do is to notify the employer in writing of the dates of the leave she intends
to take.
Mark works for Sipho as a painter and handyman. He negligently breaks a sander belonging to Sipho
during the course of his work. The value of the sander is R300. Mark earns R4000 per month. Sipho, the
employer, wants to deduct the monetary value of the tool from Mark’s salary. Advise Sipho on the
following: the requirements that he must comply with in order to effect such a deduction from the
employee’s salary in terms of the BCEA and whether he will be able to deduct the R300 from Mark’s
salary? (7)
Answer:
This question asks you to address two aspects. (1) To state the requirements that an employer must
comply with in order to effect a deduction from the employee’s salary in terms of the BCEA and (2)
whether in light of the requirements the employer will be able to deduct the R300 from Mark’s salary.
It is important to answer the question in the manner it is being asked because failing to do so will
result in a loss of marks. You need to answer the question fully in order to obtain maximum marks in
the question.
(1) In terms of the BCEA an employer may deduct money from an employee’s salary to
reimburse it for loss or damage only if:
- the loss or damage occurred in the course of employment and was due to the fault of the
employee;
- the employer has followed a fair procedure and has given the employee a reasonable
opportunity to show why the deductions should not be made;
- the total amount of the debt does not exceed the actual amount of the loss or damage; and
- the total deductions from the employee’s remuneration do not exceed one-quarter of the
employee’s remuneration in money.
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(2) It is clear from the facts that Mark negligently broke the sander whilst working and that it
was his fault (negligence).
Sipho must follow a fair procedure and must give Mark a reasonable opportunity to show
why the deduction should not be made.
The total amount of the deduction sought to be made is the same as the amount of the loss.
The deduction of R300 does not exceed one quarter of Mark’s salary (R1000).
Sipho will thus be able to make the deduction if after affording Mark a reasonable
opportunity to show why the deduction should not be made he is still of the view that it
should be made.
Question 3 - example of a practically based question
Company ABC is in the process of dismissing employees’ based on the operational requirements of the
business and has complied with all the substantive and procedural requirements for such dismissals to
be fair. However, it managed to find employment for employee X at Company KK. X has been
working for Company ABC for the past 10 years. X refuses to take up this employment without any
reason. Is X entitled to severance pay from Company ABC? (4)
Answer:
The question requires you to set out the law relating to severance pay and then apply the law to
the facts and come to a conclusion (whether X is entitled to severance pay from Company ABC).
When an employee is dismissed based on operational requirements of the employer in terms of the LRA,
the employer must pay the employee severance pay equal to at least one week’s pay for each completed
year of continuous service with that employer.
An employee who unreasonably refuses to accept an offer of alternative employment with another
employer is not entitled to severance pay.
Based on the facts, X would have been entitled to 10 weeks’ severance pay but because he
unreasonably refused the alternative employment with Company KK he is not entitled to severance
pay.
X by unreasonably refusing the alternative employment has disqualified himself from receiving
severance pay.
What number of months/weeks does the BCEA prescribe for maternity leave and sick leave and what
cycle applies to each of these types of leave? (4)
Answer:
This question requires you to address two aspects. (1) to state the number of months/weeks prescribed
by the BCEA for maternity leave and the cycle that applies to this type of leave. (2) to state the
number of months/weeks prescribed by the BCEA for sick leave and the cycle that applies to this type
of leave. It is important to ascertain what the question requires from you and to answer the question
fully.
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(1) Maternity leave: four consecutive months with no cycle stipulated.
(2) Sick leave: six weeks for every period of three years’ of employment.
In which ONE of the following circumstances will an employee NOT be entitled to family
responsibility leave?
1 a male employee when his child is ill

2 a female employee when her adopted child dies
3* a male employee when his wife/life partner is ill
4 a female employee when her life partner dies. (2)
Question 6 - example of a multiple-choice question
Which ONE of the following statements about the BCEA is CORRECT?
1.* The BCEA provides minimum notice periods for the termination of contracts of employment.
2. Chapter 3 of the BCEA applies to employees who work for less than 24 hours a month for an
employer.
3. The national minimum wage is not a basic condition of employment in terms of the BCEA.
4. Chapter 2 of the BCEA applies to employees who earn more than R205 433 per year.
(2)
The values of ubuntu are also echoed in the BCEA. For instance the BCEA, Act 75 of 1997,
proscribes the employment of children under the age of 15 years, in section 43, and only
permits such employment in certain exceptional circumstances, in section 43(2). These
limitations have been put in place to protect children from exploitation and from being exposed
to dangerous environments. These provisions are evidence of care, compassion and fairness.
At this age, children still need to enjoy their childhood and subjecting them to inappropriate
working conditions would not be fair to them as members of society. Those who contravene
these provisions may be found guilty of an offence. This vindicates the commitment of our
legislation to protect children.
The provisions of the BCEA also apply, with a few exceptions, to domestic workers and farm
workers. In this way the values of ubuntu, such as social justice, fairness and dignity are
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afforded to employees in the informal sector. This means that these workers are afforded the
dignity to which they are entitled.
6. STUDY UNIT 3
THE EMPLOYMENT EQUITY ACT

Contents
3.1 WITH WHAT DOES THIS UNIT DEAL?
3.1 WITH WHAT DOES THIS UNIT DEAL?
This chapter deals with the EEA and its two-fold purpose, namely to prohibit unfair
discrimination against employees and the implementation of affirmative action measures in the
workplace. The Act should be read against the background of the provisions of the Constitution
relating to equality.
Make sure that you understand the following when you read and study this chapter:
• The principles which regulate unfair discrimination and the stages of an unfair
discrimination claim. You must be able to apply these principles in practice;
• The defences in terms of the EEA to justify discrimination, namely affirmative action
and the inherent requirements of the job;
• The nature of harassment, and particularly, sexual harassment, the various forms of
sexual harassment, the contents of sexual harassment policies which employers are
obliged to implement in workplaces, and the disciplinary sanctions that may be
imposed on harassers;
• The principles relating to affirmative action, its nature, contents, who must implement it,
the duties of employers when they design an employment equity plan, and the
beneficiaries of affirmative action;
• Medical, psychological and HIV/AIDS testing in the workplace;
• Resolving an unfair discrimination dispute; and
• The ways in which affirmative action measures can be enforced.
• the constitutional background to equality

• the two-fold purpose of the EEA
• differentiation
• discrimination (unfair/fair/direct/indirect)
• prohibited grounds (specified, unspecified, arbitrary grounds)
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• justification grounds (inherent requirements of the job and affirmative action);

• equal pay for equal work
• harassment and sexual harassment
• employer’s liability for employees’ discriminatory acts
• designated employers
• designated groups

• You have to study the whole of chapter 5.
There are extra sources listed at the end of the chapter in the textbook for students who are
interested in the discipline and want to read wider. Although you will not be tested on these,
they will enrich your understanding of unfair discrimination and affirmative action.

3.4.1 Introduction
South African workplaces display large inequalities as a result of past discriminatory laws,
policies and practices towards black people and women generally. Equality for all people was
only embraced when the Constitution acknowledged this past history and the necessity of
redressing disadvantage. It set as founding values, inter alia, the achievement of equality (in
other words, equality has been embraced as a goal), non-racism and non-sexism.
The Constitution provides for the prohibition of unfair discrimination on a number of (non-
exhaustive) grounds and authorises affirmative action. It thus embraces the notions of both:
• formal equality which prohibits unfair discrimination, and

• substantive equality which requires affirmative action.
The EEA follows the Constitution and is the most important law with regards to equality in the
workplace. The Act has a two-fold purpose namely to protect employees against unfair
discrimination and to ensure the implementation of affirmative action measures by designated
employers for designated employees.
Make sure you understand the terminology below:
(a) Formal and substantive equality
As stated above, equality was only embraced under the new constitutional order. The so-
called equality clause of the Constitution provides for the prohibition of unfair discrimination on
a number of non-exhaustive grounds (formal equality) and authorises affirmative action
(substantive equality).
Formal equality protects individuals against unfair discrimination and is called equality in
treatment. It requires that all people be treated the same. It views individual ability as the only
factor relevant for achieving success in society.
Substantive equality focuses on equality of outcome. It takes into account the social and
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economic conditions of groups and individuals (for example, race and gender) as these often
determine a person’s place/position in society.
(b) Differentiation and discrimination
A distinction must be drawn between differentiation and discrimination. Differentiation (in the
sense of treating people differently), does not necessarily constitute discrimination. In the
workplace it often happens that employees are treated differently, based on, for example, their
skills and qualifications. This would not amount to unfair discrimination. Discrimination therefore
appears to be a particular form of differentiation, differentiation based on illegitimate grounds.
As to what would constitute illegitimate grounds, there are three possibilities. There are the so-
called:
• “specified/listed grounds’’ such as race, sex, religion and pregnancy;

• “unspecified/unlisted’grounds; and
• arbitrary grounds
As far as the specified grounds are concerned, they are all listed in the EEA. As far as the
unspecified grounds are concerned, it was held in Harksen v Lane NO 1997 11 BCLR 1489 (CC)
that there will be discrimination on an unlisted ground if the differentiation is:
“… based on attributes or characteristics which have the potential to impair the fundamental
dignity of persons as human beings, or if it affects them adversely in a comparably serious
manner.”
“Dignity’’ is thus the underlying consideration in determining whether differentiation has turned
into discrimination.
In summary, all illegal grounds have the potential to demean people.
(c) Direct and indirect discrimination
Both direct and indirect discrimination are prohibited by the EEA. The difference between the
two is well documented. Direct discrimination occurs where a person is overtly treated
differently because of, for example, his or her race. Usually, direct discrimination is easy to
recognise. The true explanation for unfair differentiation is usually (although not always)
known by the perpetrator of the differentiation.
Indirect discrimination occurs when criteria or policies which appear to be neutral, are applied
but then unjustifiably affect a disproportionate number of a group, for example, because of their
sex. Indirect discrimination is often disguised and difficult to detect. An example of indirect
discrimination would be when an employer requires all window washers to be taller than six
feet. On the face of it there is no direct discrimination based on sex, but indirectly this
requirement discriminates against women, as very few of them are taller than six feet.
Whether such discrimination is fair or unfair is another matter, which is not relevant at the
stage when it is to be determined whether discrimination occurred or not.
You must be able to explain the difference between direct and indirect discrimination and provide
an example of each.
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(d) Specified, unspecified grounds and arbitrary grounds of discrimination
Section 6(1) of the EEA provides a non-exhaustive list of 19 grounds on which discrimination is
prohibited in both policies and practices. They are race, gender, sex, pregnancy, marital
status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability,
religion, HIV status, conscience, belief, political opinion, culture, language and birth or any
other arbitrary ground. It is important to note that the grounds of discrimination in the EEA have
been amended to include arbitrary grounds. See paragraph 2.3, Chapter 5 of the prescribed
textbook for a discussion of arbitrary grounds.
The list is very similar to the grounds contained in the Constitution, but note that three more
grounds have been added, namely family responsibility, HIV status and political opinion.
Examples of unspecified grounds from case law are mental health and citizenship.
Differentiation based on mental health or citizenship has the potential to impair the dignity of the
person who suffers the differentiation.
Discrimination cases are mainly based on the specified grounds. A review of the reported cases
shows a dominance of alleged discrimination on the grounds of race, sex, gender, pregnancy
and marital status, interspersed with the odd case involving family responsibility, sexual
orientation, religion, political opinion, disability and HIV/AIDS. Given our history, this pattern is
hardly surprising. Few reported cases have been based on unspecified grounds.
Remember that discrimination can be based on more than one ground. For example, em-
ployer H refuses to employ applicant Moyo in a clerical position for which he is fully qualified in
terms of the advertised requirements. Moyo is coloured and homosexual, and H prefers black,
heterosexual employees. The discrimination is based on two grounds in this instance, namely
(i) sexual orientation and (ii) race. Remember that an applicant for employment is also regarded
as an employee.
3.4.2 Establishing unfair discrimination
Study paragraphs 4.1 and 4.1.1(a)-(c) in Chapter 5 of the prescribed textbook, pages
81-83.
3.4.3 Justification grounds for discrimination
Discrimination may be justified on only two grounds, namely:
• affirmative action; and

• the inherent requirements of the job.
3.4.4 Other specific forms of discrimination prohibited in the EEA
These are discussed in detail in the textbook. Make sure that you know the different forms and
what the EEA prohibits.
(a) Harassment
You must remember that the EEA regards harassment as a form of unfair discrimination and
prohibits it, on any one or a combination of the grounds listed in the Act.
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Sexual harassment is often found in the workplace and though it is not defined in the Act, the
Code: Sexual Harassment defines it as unwelcome conduct of a sexual nature that violates a
person’s rights (such as dignity), conduct that constitutes a barrier to equity, and action based on
sex, gender or sexual orientation (whether unwelcome or not).
You must be able to recognise sexual harassment in the form of:
• Physical conduct: touching, fondling a person without his or her consent, whistling,
enquiries about a person’s sex life, sexual assault, rape;
• Verbal conduct: hints, comments, sex-related jokes; or
• Non-verbal conduct: gestures, the display of explicit sexual pictures or e-mails,
indecent exposure.
An example of sexual harassment is found in Grobler v Naspers Bpk & another [2004] 5 BLLR
455 (C). Here, the plaintiff, a secretary, resigned after she was sexually harassed by her
supervisor over a period of months. The harassment included suggestive sexual remarks,
physical contact in the form of hugging and kissing, and asking the plaintiff out. The plaintiff
made it clear to her supervisor that his advances were unwelcome, but the harassment
continued. The traumatised plaintiff complained to management on a number of occasions, but
no help was provided, neither were disciplinary steps instituted against her supervisor. After a
particular incident where her supervisor handed her a booking for a night’s stay at a hotel which
was “all he wanted from her,” she again approached management. Only then was a disciplinary
hearing held and the supervisor dismissed. The plaintiff successfully sued her employer for
general damages, medical costs and compensation for loss of income.
Remember that an employer may be held liable for acts of (sexual) harassment by its em-
ployees against co-employees.
The EEA provides certain conditions under which an employer may be held liable for such
conduct by its employees, and conditions under which liability will be avoided. You must know
these conditions.
Take note of paragraph 4.1.3(b) “Liability of employers for employees’ discriminatory conduct”
in Chapter 5 of the prescribed textbook on pages 85-87 which deals with the employer’s liability
for its employees discriminatory conduct.
(b) Testing
You must know the different requirements for medical, psychological and HIV testing as set out
by the EEA and case law as discussed in your textbook.
(c) Equal pay for equal work or work of equal value
Study paragraph 4.1.5 “Equal pay for equal work or work of equal value” in Chapter 5 of the
prescribed textbook on pages 89-92.
3.4.5 Resolution of unfair discrimination disputes
Study paragraph 4.1.6 “Resolution of unfair discrimination disputes” in Chapter 5 of the

prescribed textbook on page 93.
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3.4.6 Affirmative Action
The EEA not only prohibits unfair discrimination (“formal equality”), but secondly implements
the constitutional value of substantive equality, by prescribing affirmative action. Designated
employers must implement affirmative action measures in terms of the EEA. Section 15
provides that affirmative action measures are measures designed to ensure that suitably
qualified people from designated groups have equal employment opportunities and are equally
represented in all occupational categories and levels in the workplace of a designated
employer.
Affirmative action is a ground of justification against a claim of unfair discrimination. It is

important to remember that only affirmative action measures that are consistent with the purpose
of the EEA will qualify as such justification. Such measures have to ensure:
• equal employment opportunities and

• equal representation
• in all occupational categories and levels in the workplace of a designated employer.
The EEA (section 15(2), page 95 of the textbook) gives further direction as to what must be
included in affirmative action measures. It requires the employer to take measures:
• that will identify and eliminate employment barriers which adversely affect people from
designated groups;
• to encourage diversity in the workplace;
• to make reasonable accommodation for people from designated groups;
• to ensure equitable representation of suitably qualified people from designated groups;
• to retain and develop people from designated groups; and
• to implement training programmes, including skills development.
• Numerical goals are allowed but not quotas.
A number of judgments make it clear that affirmative action measures have to be

“designed’’ to achieve the realistic objective of equal representation in all occupational
categories and levels in the workplace.
Remember that designated employers are generally larger employers, namely:
• those who employ 50 or more employees;

• those who employ fewer than 50 employees but who have an annual turnover as
stipulated in Schedule 4 of the EEA;
• municipalities;
• organs of state such as the SABC and Eskom; and
• employers who have been designated as designated employers in terms of a collective
agreement.
• The National Defence Force and the State Security Agency are explicitly excluded
from the definition of designated employers.
Affirmative action measures apply only to suitably qualified people from designated groups.
Designated groups are black people (defined as African, Coloured and Indian people), women
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and people with disabilities. In terms of the decision in Chinese Association of South Africa v
Minister of Labour Chinese people are also included in the category “black people”. Take note
of the further requirement of citizenship, as discussed in paragraph 5.2.2(a) of the prescribed
textbook on page 97.
A member of a designated group must be “suitably qualified” to benefit from affirmative action.
“Suitably qualified” means one of four things:
• having formal qualifications;

• having prior learning;
• having relevant experience; or
• having the capacity to acquire, within a reasonable time, the ability to do the job.
Remember that a person may be “suitably qualified” as a result of any one or a combination of
these factors.
There are formal and informal ways to monitor the duties of designated employers with regard to
affirmative action. You must know these ways.
You must also know the factors that have to be taken into account when it has to be
determined whether a designated employer is implementing employment equity in compliance
with the EEA.
Lastly you must know the powers of the Labour Court to enforce affirmative action.
3.5 QUESTIONS
asked whether in the assignments or in the examination. We have provided examples of: a
practically based question and how it should be answered, straight-forward questions and
how they should be answered as well as multiple-choice questions (note that in the case of
multiple-choice questions you will only be required to select the correct answer without any
motivation being required). Pay attention to the questions and how the questions are
answered particularly in light of the mark allocation. You must always study questions
and answers provided to you thoroughly as you might get the same and/or similar
types of questions in the assignments and/or the examination.
Do you think that an employer can justify appointing a male as a bus driver in preference to a female?
(4)
Answer:
The question requires you to set out the law relating to the inherent requirements of the job first
and then to apply the law to the crux of the question and to come to a conclusion. It should be
clear from the mark allocation of 4 marks that a Yes or No answer is not enough and will result
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in you failing the question. You must always keep the mark allocation in mind when answering a
question as this will guide you in terms of the length of the answer and what it should contain.
If the job in its essence requires certain attributes it will not be unfair to exclude people without that
attribute.
The courts have interpreted the term “inherent requirements of the job” in a narrow manner in that only
requirements that cannot be removed from the relevant job description without changing the nature of
the job, are regarded as inherent requirements.
The employer would not be able to justify appointing a male as a bus driver in preference to a female
because it is not an inherent requirement to be a male in order to drive a bus.
The EEA allows for psychological testing of an employee in certain circumstances. Discuss the factors
that will allow psychological testing to take place. (4)
Answer:
It is clear from the question that you must discuss (set out) the factors that will allow
psychological testing to take place. You should not lose marks in this type of question as it is
straight forward.
- It must be scientifically shown that the test used is valid and reliable
- Can be applied fairly to all employees
- Is not biased against any employee or group
- Has been certified by the Health Professions Council or another body authorised by the Health
Professions Act.
Discuss the liability of employers who fail to deal with allegations of unfair discrimination or sexual
harassment against their employees. (5)
Answer:
This question clearly asks you to discuss the liability of employers for their employees’ discriminatory
conduct. You will note that case law is referred to in the answer because the case deals directly with
the employer’s liability in the case of an employee’s discriminatory conduct.
Once an employee brings discriminatory conduct to the attention of the employer, the employer must consult
all relevant parties and take the necessary steps to eliminate such conduct.
The EEA requires every employer to take steps in an attempt to eliminate unfair discrimination in any
employment policy/practice.
The employer will be deemed to be liable for a contravention by its employees if the employer did not follow
this procedure and cannot prove that it did all that was reasonably practicable to ensure that an employee
would not contravene the EEA.
In Ntsabo v Real Security CC the employee’s supervisor sexually harassed her by touching her and making
unwanted sexual proposals to her. This was brought to the attention of the employee’s manager but he failed
to deal with it. The employee resigned because employment became intolerable. The court awarded the
employee compensation for an unfair dismissal in terms of the LRA and damages in terms of the EEA which
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was made on the basis that the failure by the employer to deal with the allegations of sexual harassment
constituted unfair discrimination as the employer had failed to do all that was reasonably practicable to
ensure that the supervisor would not contravene the Act.
Which ONE of the following statements regarding the onus provision in section 11 of the EEA is
CORRECT?
1. If unfair discrimination is alleged on a listed ground then the employee must prove that such
discrimination did not take place or is rational and not unfair or is otherwise justifiable.
2. If unfair discrimination is alleged on an arbitrary ground then the employer must prove that the
conduct complained of is not rational, it amounts to discrimination and the discrimination is
unfair.
3.* If unfair discrimination is alleged on a listed ground then the employer must prove that such
discrimination did not take place or is rational and not unfair or is otherwise justifiable.
4. If unfair discrimination is alleged on a listed ground then the employee must discharge his/her
onus on a balance of probabilities.
(2)
Answer: the Correct answer is 3. You must go through the options carefully and you must
Which ONE of the following statements concerning section 9 of the Constitution is CORRECT?
1. It prohibits unfair discrimination on the basis of a number of grounds including HIV Aids.
2. It is not possible to discriminate fairly.
3.* It provides for both formal and substantive equality.
4. It only provides for formal equality. (2)
Which ONE of the following statements regarding discrimination is CORRECT?
1.* Differentiation in pay levels does not itself constitute discrimination.

2. Discrimination is a particular form of differentiation that is based on a lawful ground.
3. Direct discrimination is often disguised and hard to detect.
4. Indirect discrimination is usually easy to detect and determine.
(2)
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Which ONE of the following groups DOES NOT fall within the designated groups for the purposes of
affirmative action?
1. Black men
2. Black women
3. White women
4.* White males (2)
In section 15, the EEA, Act 55 of 1998, introduces affirmative action, which is aimed at
remedying the injustices of the past, such as the apartheid system, by requiring that suitably
qualified people from the designated groups are given equal employment opportunities and
are equitably represented in all levels of the workplace, in an effort to address the inequalities in
our society. It can be argued that this development was inspired by ubuntu, in that affirmative
action seeks to bring about social justice and restore human dignity to those who were
previously disadvantaged. The beneficiaries of affirmative action are black people, women and
people with disabilities. Section 20(3) also defines a person who is suitably qualified as a
person who does not necessarily have a formal qualification but who has work experience and
can be empowered within reasonable time to do the work. This shows how accommodating the
provision is.
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7. STUDY UNIT 4
UNFAIR LABOUR PRACTICES
Contents

This study unit focuses on unfair labour practices (unfair acts or omissions by an employer
against an individual employee). Unfair labour practices are discussed separately from
dismissals, because they occur during actual employment.
Employees are afforded legal protection against unfair labour practices that might occur during
their actual employment. These unfair labour practices can relate to promotion, demotion,
probation, training, the provision of benefits, suspension, the refusal to reinstate or re-employ
an employee in terms of any agreement, and unfair conduct by the employer in the form of an
occupational detriment suffered by an employee on account of the latter having made a
protected disclosure. Both the Constitution and the LRA afford employees protection against
unfair labour practices perpetrated by the employer against them.
It is important to note that the right to fair labour practices in terms of the Constitution is wide,
whilst the protection against unfair labour practices in terms of the LRA is capped, which
means that unfair labour practices are limited to the list of actions included in the definition.
Disputes relating to unfair labour practices can be referred to the CCMA for conciliation by the
employee. If the dispute is not resolved during conciliation the CCMA Commissioner will issue
a certificate of non-resolution, after which the dispute will be referred for con-arb (depending
on the nature of a dispute) or for adjudication by the Labour Court (depending on the nature of
a dispute) (see page 118, chapter 6 of the prescribed textbook).
• unfair labour practices

• dispute of right
• dispute of interest

• Chapter 6 of the prescribed textbook
• Sections 185(b), 186(2) & 191(5) of the Labour Relations Act.
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4.4.1 The meaning and scope of an unfair labour practice
An unfair labour practice takes place during the course of employment. In other words, the
employee has not resigned or has not been dismissed, but the employee is treated unfairly. For
example, where an employer demotes an employee without good reason or moves an employee
to a different branch without reason. The LRA protects employees against these unfair labour
practices. Every employee has the right not to be subjected to [an] unfair labour practice.
Section 186(2) defines an unfair labour practice as:
any unfair act or omission that arises between an employer and an employee involving:
(a) unfair conduct by the employer relating to the promotion, demotion, probation
(excluding disputes about dismissals for a reason relating to probation) or the
training of an employee or relating to the provision of benefits to an employee;
(b) the unfair suspension of an employee or any other unfair disciplinary action short of
dismissal in respect of an employee;
(c) the failure or refusal by an employer to reinstate or re-employ a former employee in
terms of any agreement; and
(d) an occupational detriment, other than dismissal, in contravention of the Protected
Disclosures Act, Act 26 of 2000, on account of the employee having made a protected
disclosure defined in that Act.
It is important to know that only these actions will constitute unfair labour practices in terms of
the LRA. No other forms of unfair conduct may be classified as such. In other words, the list is
exhaustive.
4.4.2 The meaning of the different actions
(a) Promotion
When an employer acts unfairly with regard to demotion and the provision of benefits, there will
be action on the part of the employer. The employee’s current position or benefits will be altered
for the worse.
In the case of promotion and perhaps even training, the employer fails to take any action, or
neglects to take action, which makes it difficult to prove unfairness. For example how does an
employee show that he or she should have been promoted? Unfair labour practices based on
omissions on the part of the employer are problematic in practice.
In general, promotion is a managerial prerogative. The employer may promote the most
suitable candidate, after a fair process has been followed. An employee does not have any
legal entitlement to be promoted to a higher post although circumstances may sometimes
show otherwise. A decision not to promote an employee is reviewable if the employer
cannot justify its decision, or if the decision proves to be seriously flawed.
The other actions such as demotion, probation, training and the provision of benefits are
discussed in detail in the prescribed book. Important aspects to look out for in the discussion in
the textbook in this regard are:
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(b) Demotion
Demotion can occur where an employee:
• is transferred to a lower level;

• receives less remuneration;
• loses benefits; or
• experiences a loss in status.
(c) Probation
For probation to be fair the following requirements must be met:
• the period should be determined in advance; and

• the period should be of a reasonable duration, and in order to determine the
reasonableness of the probationary period, the following should be taken into account:
• the nature of the job, and
• the time it will take to determine the employee’s suitability for continued
employment.
Unfair action with regard to probation occurs when the period is used for purposes not
contemplated by the LRA. An employee on probation does not have access to company pension
and medical aid benefits. If an employee is, for example, kept on probation so that the company
can save money by not contributing to these funds on behalf of the employee, it will be unfair.
The probationary period may, however, be extended if it is justified, for example, where the job
requirements are such that an extended probationary period is required to determine whether
the employee is suitable for the job.
(d) Training
If the employer acts unfairly towards the employee as far as the provision of training is
concerned, it will amount to an unfair labour practice. That would normally be where the
employer fails to provide the employee with training or fails to send the employee for training. In
such a case the employee will have to show that he or she had some kind of legitimate
expectation to be trained, and the employer acted arbitrarily, capriciously or inconsistently in
denying the employee training.
(e) Provision of benefits
Study paragraph 5.5 “The unfair conduct of the employer relating to provision of benefits”
in Chapter 6 of the prescribed textbook on pages 111-113.
(f) Suspension or any other disciplinary action short of dismissal
The unfair conduct of the employer relating to the suspension of an employee and any other
unfair disciplinary action short of dismissal, will amount to an unfair labour practice. Two types
of suspension are found in practice:
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• The first type is suspension pending an inquiry, known as ‘precautionary suspension’ and
the employee must be paid during this suspension;
• The second type is imposed as a sanction for misconduct, after the employee has
been found guilty, and is known as ‘punitive suspension’ and this is normally
unpaid.
(g) Refusal to reinstate or re-employ in terms of any agreement
Former employees are protected against the refusal of the employer to reinstate or re-
employ them in terms of any agreement. An example is the refusal to re-employ a retrenched
(ex) employee where a vacancy arises, when it was agreed (for example, in a collective
agreement or a settlement agreement) that the employee would be recalled, and considered
for such a position.
(h) Occupational detriment on account of a protected disclosure/‘whistleblowing’
It is important to realise that an employee may be dismissed or victimised for having blown the
whistle.
Dismissal as a result of having made a protected disclosure (whistleblowing) will be

automatically unfair. Victimisation as a result of whistleblowing does not end the employment
relationship but the employee will be prejudiced. The LRA calls this “suffering” of the employee
as a result of whistleblowing, an “occupational detriment”.
If an employee suffers an “occupational detriment” because he or she made a protected

disclosure in terms of that Act, such “occupational detriment” will amount to an unfair labour
practice.
An “occupational detriment” can be:
• being subjected to any disciplinary action;

• dismissal, suspension, demotion, harassment or intimidation;
• being transferred against one’s will;
• being refused a transfer or promotion;
• being subjected to a term of employment or retirement which is altered or kept
altered to the employee’s disadvantage;
• being refused a reference or being provided with an adverse reference;
• being denied appointment to any profession or office;
• being threatened with any of these actions; or
• being otherwise adversely affected in respect of employment, employment
opportunities and work security.
Also ensure that you understand the meaning of a protected disclosure.
4.4.3 Resolution of unfair labour practice disputes
Important factors in the process are:
• Bargaining councils or the CCMA (if no council has jurisdiction) have jurisdiction to
conciliate unfair labour practice disputes.
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• A referral of an unfair labour practice dispute must be lodged within 90 days of the
occurrence of the unfair labour practice was committed or, within 90 days of the date
when the employee became aware of the unfair labour practice.
• If conciliation fails, and the dispute remains unresolved, the employee may request that
the dispute be arbitrated by the relevant bargaining council (or the CCMA)
EXCEPT where:
• The unfair labour practice relates to probation, in which case the so-called ’con- arb’
process must be followed. This entails a single expedited process in which the matter
is arbitrated immediately after a certificate is issued that the dispute remains
unresolved; and
• The unfair labour practice relates to an occupational detriment, in which case the dispute
may be referred to any court that has jurisdiction, including the Labour Court, or the
matter might be pursued through any other process allowed or prescribed by law.
The arbitrator may determine the unfair labour practice dispute referred to him or her on
terms that he or she deems reasonable, including making an order for reinstatement, re-
employment or compensation of not more than the equivalent of 12 months’ remuneration.
4.5 QUESTIONS
Mr X works for Company X as a driver. Company X is in possession of a tracker report which shows
that Mr X has been using the company vehicle for his personal use and not only official company
business. Company X is considering suspending Mr X to allow it to investigate the misconduct and to
decide whether disciplinary action should be taken.
Advise Company X on the following:
1.1 What type of suspension will this be? (1)
1.2 What should be considered before deciding whether to suspend or not? (3)
1.3 What is the rule with regard to pay in respect of this type of suspension? (1)
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[5]
Answer:
This question is already broken down into three sub-questions. You must only answer what the
specific sub-question requires from you.
1.1 Precautionary suspension.
1.2 The decision to suspend or not will depend largely on the circumstances of the alleged
misconduct. An employee should not be suspended unless: (a) there is a prima facie reason to
believe that the employee has committed serious misconduct; and (b) there is some objectively
justifiable reason for excluding the employee from the workplace. Suspensions must be based
on substantively valid reasons and fair procedures before they are implemented. It may be
helpful to afford the employee an opportunity to state his case before making a decision to
suspend.
1.3 Suspension is with pay unless the employee agrees to suspension without pay or a law or
collective agreement authorises unpaid suspension.
Andile has been working for Company X for the past 10 years. The Company sends out a circular in
which it invites employees who have 7 years’ working experience with the company and who have had
a performance rating of 3.5 in the past year to apply for promotion to their next level from their
respective positions. Andile is an engineer and the next level for him is senior engineer. He thus applies
for promotion to the post of senior engineer as he has 10 years’ working experience with the Company
and he has received a performance rating of 3.9 in the past year. Andile’s manager informs him that he
should get the promotion as he is a hard worker and he meets the requirements for promotion. Two
weeks later, the Company informs Andile that he has not been shortlisted for the promotion interviews
and the reason given is that he does not meet the criteria for promotion. Andile is aggrieved by this
decision and approaches you for advice. Advise Andile regarding the remedy available to him, what it
entails and whether he will succeed in proving such remedy. (5)
Answer:
You must be able to identify that the question deals with an unfair labour practice relating to
promotion and it requires you to discuss this and to apply this to the facts of the case.
This is an unfair labour practice relating to promotion.

The employee must prove an omission on behalf of the employer.
Dissappointment does not mean that the employer acted unfairly.
In Ncane v Lyster the court held that an employer must abide by the law and its own objective criteria it
has set for promotion and eligible employees must have a fair opportunity to compete for a post.
Promotion falls within managerial prerogative.
An employee does not have any legal entitlement to be promoted to a higher post.
He/she may have a reasonable expectation of being promoted – employers can create such an
expectation through an assurance that the employee will be promoted.
In order for a promotion to be fair, an employer must act both procedurally and substantively fair.
If an employer cannot justify its decision not to promote or if the process leading to the promotion
proves to be seriously flawed, the possibility that the employer committed an unfair labour practice
may arise.
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Courts will intervene in disputes where the employer has acted in bad faith for eg, the employer
exercises its discretion inconsistently; the reasons provided cannot be substantiated, the decision was
taken on a wrong principle, the decision was taken in a biased manner.
Based on the facts, the employer has committed an unfair labour practice relating to promotion against
Andile. It’s decision not to shortlist him based on the reason that he has not met the requirements is
without merit and irrational. The Courts will definitely intervene in a case such as this. Furthemore,
Andile has been given an assurance by his Manager that he should get the promotion as he meets the
requirements.
Andile will thus succeed in proving that the employer committed an unfair labour practice relating to
promotion.
Lydia works for Company Y as a floor manager. The Company has an early retirement scheme in
place. Employees wishing to enter the early retirement scheme must be 50 years old. The Company,
however, still has the discretion to refuse employees entry into the scheme. Lydia is 50 years old and
she applies for entry into the scheme. The Company refuses her entry into the scheme stating that it is
the company’s prerogative to enter employees into the scheme and the company has decided that she
cannot enter the scheme. Lydia is aggrieved by this and she approaches you for advice. She would like
to know if the Company is entitled to refuse her the benefit of entry into the early retirement scheme.
Advise Lydia regarding the remedy available to her, what it entails and whether she will succeed in
proving such remedy. (5)
Answer:
You must be able to identify that this deals with an unfair labour practice relating to benefits and
what it entails and to apply this to the facts of the case.
This is an unfair labour practice relating to benefits.

In Apollo Tyres case, the LAC looked at the interpretation of a benefit.
The employer refused to include the employee in an early retirement scheme.
The commissioner and the LC held that an early retirement scheme does not constitute a benefit.
The LAC held that a benefit in the context of an unfair labour practice should be interpreted to include
any benefit to which the employee is entitled regardless of the fact that the benefit results from (a) a
contract of employment; (b) is judicially created; (c) is granted in terms of a policy or practice subject
to the employer’s discretion.
The LAC thus held that the early retirement scheme did constitute a benefit.
The employer who denies the benefit must be able to show that there was a valid reason for excluding
the employee from the benefit, in this instance, the early retirement scheme.
Based on the facts of Lydia’s case, the employer failed to provide a valid reason for excluding Lydia
from entry into the early retirement scheme and to consequently partake of its benefits and this amounts
to an unfair labour practice.
Lydia will thus succeed in proving that the employer committed an unfair labour practice relating to
benefits.
Discuss the difference between an unfair labour practice in terms of the LRA and the right to fair labour
practices in terms of the Constitution. (5)
Answer:
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It is clear that the question requires you to discuss (set out) the differences between an unfair
labour practice in terms of the LRA and the right to fair labour practices in terms of the
Constitution. You must thus in your answer discuss the right to fair labour practice as it is found
in the LRA as well as the Constitution.
In terms of section 23(1) of the Constitution everyone (including employers) have the right to fair
labour practices.
The right in the Constitution is wide and protects all workers including those who are not employees in
terms of the LRA.
The protection against unfair labour practices in the LRA is limited to those who qualify as employees.
The protection in the LRA is limited to the list of actions included in the definition of unfair labour
practice in the Act.
Protection of employees in the LRA, is only against specific actions by employers.
In terms of the definition in the LRA, an employee cannot commit an unfair labour practice towards the
employer, only an employer can commit an unfair labour practice against an employee.
Discuss the difference between precautionary and punitive suspensions.
Answer:
This question is clear.
Precautionary suspension
Can be implemented to allow an employer to investigate the alleged misconduct of an employee, and to
decide whether disciplinary action should be taken against the employee.
Suspension as a rule is with pay;
Unless the employee agrees to suspension without pay, or a law or collective agreement authorises
unpaid suspension.
Punitive suspension
Fair suspension without pay could be an alternative to a sanction of dismissal in an attempt to correct
the behaviour of the employee.
It can be seen as a form of progressive discipline where appropriate.
Which ONE of the following statements regarding unfair labour practices is CORRECT?
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1. An unfair labour practice relating to the provision of benefits can take place even after the
employment relationship has ended.
2. Disputes about unfair labour practices must be referred to conciliation within 60 days of the
occurrence of the unfair labour practice.
3. Disputes about unfair labour practices must be referred to conciliation within 30 days of the
occurrence of the unfair labour practice.
4.* An unfair labour practice relating to a refusal by an employer to re-employ a former employee
in terms of any agreement can take place even after the employment relationship has ended.
(2)
Which ONE of the following statements regarding the protection against unfair labour practices in
terms of the LRA is CORRECT?
1.* The protection is limited to the list of actions included in the definition of an unfair labour
practice.
2. The protection is not limited to the list of actions included in the definition of an unfair labour
practice.
3. An employee can commit an unfair labour practice against his employer.
4. It protects employees against any unfair actions by employers and not only those that are listed.
(2)
Which ONE of the following statements regarding suspension is CORRECT?
1. Precautionary suspensions can be used as an alternative to a sanction of dismissal.

2. Precautionary suspensions are without pay.
3.* Punitive suspensions are without pay.
4. Punitive suspensions can be used to allow an employer to investigate alleged misconduct of an
employee and to decide whether disciplinary action should be taken against the employee.
(2)
Fairness is both an essential element of ubuntu and an essential constitutional value. When the
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LRA protects employees against unfair practices by employers, it gives content to the values of
ubuntu and the Constitution, such as human dignity, equality and freedom.
Civility and fairness were held inseparable from ubuntu by the court in Masala v President of the
RSA and Another 2008 1 SA 566 (CC). Civility was described as more than just courtesy or
good manners, but an attitude that presupposes tolerance with those with whom one disagrees
and respect for the dignity of those with whom one is in dispute. A person in a position of power,
like an employer, should not act arbitrarily and should not be disrespectful towards others. In
essence this is the underlying motivation for the protection of employees against unfair labour
practices.
Employers and employees should be able to communicate openly. Unfair labour practices often
occur when employers use other tactics, rather than addressing grievances and potential
conflict directly.
Traditional African values support the principle that an employee should not be treated unfairly,
and should it happen, the employee should get the opportunity to speak to the employer so that
they may work towards a solution together.
In the context of unfair labour practices, ubuntu presupposes that the employer ought to treat all
employees with respect, acknowledging their human dignity. In S v Makwanyane ubuntu was
defined as a culture which places emphasis on communality and on the interdependence of
members of a community. It recognises a person’s status as a human being, which entitles him
or her to the unconditional respect, dignity, appreciation and acceptance of the other members
of the community of which that person is part.
It is thus obvious that the protection against unfair labour practices, as listed in section 186 of
the LRA, rests on the principles of fairness and civility.
In this sense civility is part of ubuntu and is deeply rooted in traditional culture, and widely
supported as a precondition for the good functioning of contemporary democratic societies (see
para 81 in Masala, op cit). In Pharmaceutical Society of South Africa and Others v Tshabalala-
Msimang and Another NNO; New Clicks South Africa (Pty) Ltd v Minister of Health and Another
2005 3 SA 238 (SCA), para 38, Harms JA, describes ubuntu as a relationship of mutual respect.
In similar vein the court in Koyabe and Others v Minister for Home Affairs and Others ( Lawyers
for Human Rights as Amicus Curiae) 2010 4 SA 327 (CC) per Mokgoro J, associated ubuntu
with a general obligation to treat people with respect and dignity, to avoid undue confrontation
and to give reasons for administrative decisions.
From the discussion above, it becomes clear that ubuntu is reflected in the provisions of labour
law in South Africa, for example in the awarding of benefits, in that employers are required to
treat all employees with dignity and respect, and in that the employer must provide reasons for
decisions that adversely affect the rights of employees in a workplace. In fact the court has
used ubuntu in its judgments to give content and meaning to decisions.
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8. STUDY UNIT 5
TERMINATION OF THE CONTRACT OF EMPLOYMENT

Contents
Employment relationships are not permanent. At some stage they must come to an end. Some
terminations are planned whereas others are not. This part of labour law is important and you
will always come across it in your daily life either as an employer or as an employee.
This study unit deals with various ways that a contract of employment is terminated.
Termination may either be voluntary or involuntary. It is important for you to know and
understand the different types of dismissals and the other ways of terminating employment and
to be able to distinguish between them. There are requirements that the employer must meet
before dismissing employees. These requirements are divided into two categories, namely
requirements for procedural fairness and requirements for substantive fairness. Procedural
requirements deal with the procedures that the employer has to follow before dismissing an
employee. The question here is whether the employer followed the correct procedure before
dismissing the employee. The substantive requirements on the other hand, deal with the
reason for the dismissal. The question here is why the employer is dismissing the employee.
What is the main cause of the dismissal? You must understand these requirements since the
fairness of any dismissal depends on them.
Thus, the main focus of this unit is on determining whether the conduct of the employer will be
regarded as dismissal. If such action does constitute dismissal, the next step is to determine
whether the dismissal is automatically unfair, and if it is not automatically unfair, whether it is
fair or unfair. The type of dismissal will determine what the requirements are for the
substantive fairness and for the procedural fairness.
This study unit can be divided into 6 important parts:
 the definition of dismissal and automatically unfair dismissals

 constructive dismissal
 dismissal for misconduct
 dismissal for incapacity
 dismissal for operational requirements
 other ways of terminating the employment contract
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 dismissal
 substantive fairness
 procedural fairness
 automatically unfair dismissal
 dismissal for misconduct
 dismissal for incapacity
 dismissal for operational requirements
 dispute resolution
 unfair discrimination
 termination

 Chapters 9 and 10 of the prescribed book and
 The following sections in the LRA: 185; 186; 187; 188; 188A; 189; 189A; 190; 191; 192;
193; 194; 195.

5.4.1 Definition of dismissal and automatically unfair dismissal
It is important to understand the definition of dismissal, and the route that the enquiry must
follow to determine if a dismissal was automatically unfair, fair or unfair.
You must know the definition of dismissal as well as that of an automatically unfair dismissal.
To illustrate these terms, let’s look at the following set of facts regarding Molly:
Molly takes maternity leave. When she returns from maternity leave, her employer tells her that her
position has been filled. She wants to know whether she was unfairly dismissed.
In order to answer this question one must first determine whether dismissal occurred. This will
amount to a dismissal in terms of section 186(1)(c) of the LRA. The next step is to determine
the reason for the dismissal. If the dismissal is based on the employee’s pregnancy,
intended pregnancy or any reason related to pregnancy, it will be an automatically unfair
dismissal in terms of section 187(1)(e). Also see the discussion on pages 187-188 of your
prescribed textbook in this regard. If the employer alleges that the reason for the dismissal is not
pregnancy, intended pregnancy or any reason related to pregnancy, the employer will have to prove that
the dismissal was for a reason other than the employee’s pregnancy i.e. for a fair reason, which could be
misconduct, incapacity or operational requirements and that a fair procedure was followed.
It is important to know, first of all, what actions by the employer constitute dismissal.
Dismissal obviously occurs when the employer terminates the contract of employment with or
without notice.
The definition of ‘dismissal’ is, however, wider and includes other actions that also amount to
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dismissal. The definition is discussed in the prescribed book. You must understand and know it.
Remember that the fact that it was indeed dismissal that occurred, does not mean that the
dismissal was necessarily unfair. The employee must show that there was dismissal (in one of
the forms listed in the definition), after which the employer has the opportunity to show that the
dismissal was not unfair. In the case of an automatically unfair dismissal, the employer is not
afforded such an opportunity. The only option that the employer will have in such a case of an
alleged automatically unfair dismissal, is to show that the dismissal was not for the
automatically unfair reason as alleged, but that the dismissal occurred for another fair reason.
Such a fair reason would have to be misconduct, incapacity or operational requirements. If the
employer cannot prove that the dismissal occurred for one of these fair reasons, the dismissal
will be automatically unfair.
Back to the case of Molly: Molly must prove that there was dismissal. The employer refused to
allow her to resume employment after she took maternity leave. This conduct of the employer
constitutes dismissal, in terms of the definition of dismissal.
The enquiry now moves to the fairness of the dismissal. The first step in this process is to
determine what the reason for the dismissal is.
If the dismissal is for a reason relating to the employees pregnancy, intended pregnancy or any
reason related to pregnancy, the dismissal would amount to an automatically unfair dismissal. In
Molly’s case, the employer seems to have dismissed her for no valid reason, but probably
because of her pregnancy.
If the employer dismissed Molly because of her pregnancy, the dismissal would be
automatically unfair.
When Molly has proved that she was dismissed, in this case as the result of her pregnancy, the
dismissal will be automatically unfair.
Suppose, however, that Molly’s employer refused to allow her to resume her job because it
transpired during her absence that she had stolen money from the company prior to her
maternity leave. The dismissal will then not be as a result of her pregnancy but as a result of
misconduct.
In this case, when Molly has proved that she was dismissed, the burden shifts to the employer
to show that the dismissal was not unfair.
In order to show that the dismissal was fair, the employer will have to show that it was for a fair
reason and that he followed a fair procedure. He must then prove that Molly did indeed steal the
money and that he followed the correct procedure for dismissal. If the employer did not have a
fair reason and/or did not follow a fair procedure the dismissal will be unfair.
5.4.2 Constructive dismissal
It occurs when an employee resigns from his or her employment because the employer has
made continued employment intolerable for the employee. The employee must prove the
existence of the following three elements in order to succeed with a claim for constructive
dismissal:
 that he/she resigned

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 that the reason for the resignation was that continued employment became intolerable
 that it was the employer’s conduct that created the intolerable environment
5.4.3 Dismissal for misconduct
In the case of dismissal for misconduct the employee is at fault, by breaking a workplace rule.
Rules are usually contained in disciplinary codes that are included in the contract of
employment. These rules inform employees of the required standard of conduct. Some rules
are, however, so well-known that they do not need to be included in the contract of
employment.
For substantive fairness it must be established:
 whether the employee contravened a rule or standard regulating conduct in, or of

relevance to, the workplace;
 if so, whether the rule was valid and reasonable. This is normally determined with
reference to the needs of the workplace and business;
 whether the employee was aware, or could reasonably be expected to have been aware of
the rule. An employee can only be punished if he or she knew that the conduct was
unacceptable and that a transgression of this rule could lead to dismissal;
 whether the rule was consistently applied by the employer. An employer cannot
enforce a rule which was previously ignored. If he or she does so, it is called historical
inconsistency, because the employer now acts inconsistently with past conduct. If the
employer wants to enforce the rule in future, it would first have to inform the
employees. If the employer treats employees who are guilty of the same offence at
more or less the same time, differently from one another, it is called contemporaneous
inconsistency; and
 whether dismissal is the appropriate sanction for contravention of the rule. Dismissal
should be seen as a last resort. Normally an employee will not be dismissed for a first
offence, unless the misconduct is serious and of such gravity that it renders the
employment relationship intolerable. The appropriateness of dismissal as a penalty will
depend on the employee’s circumstances including:
 length of service;
 previous disciplinary record;
 personal circumstances;
 the nature of the job; and
 the circumstances of the infringement itself.
Procedural fairness is as important as substantive fairness for a dismissal for misconduct (as is
the case with all types of dismissal). A fair procedure requires:
 that the employer conduct an investigation into the circumstances of the infringement;
 that the employers notify the employee of the allegations, using a form and language that
the employee can reasonably understand.
 the employee must be given reasonable time to prepare;
 that the employee be given the opportunity to state a case in response to the
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allegations;
 that the employee be afforded the assistance of a union representative or co-employee;
 that after the enquiry, the employer communicate the decision taken, preferably
furnishing the employee with written notification of the decision as well as the
reasons for the decision;
 that if the employee is dismissed, he or she be given the reason for the dismissal and be
reminded of any rights to refer the matter to a bargaining council or the CCMA; and
 that disciplinary steps against a union representative or an employee who is an
office-bearer or official of a union, not be instituted without first informing and
consulting with the union.
An employer can only dispense with a pre-dismissal hearing under exceptional circumstances,
namely in crisis-zone situations, where there is danger to life or property, and where the
employee waives his or her right to a hearing.
If the fairness of a dismissal is challenged, the dispute can be resolved through conciliation and
arbitration, by a bargaining council or the CCMA. Study the process in your prescribed book.
Remember that an arbitration award is final. This means that an appeal is not possible, only
review. Review takes place at the Labour Court, and the scope of review in labour law is much
wider than in civil matters.
5.4.4 Dismissal for incapacity
The second recognised reason, for which an employer can fairly dismiss an employee, is
incapacity. Incapacity can manifest as poor work performance (the employee does not have the
ability to do the job), or be due to ill health or injury.
A dismissal based on incapacity is a ‘no fault’ dismissal because it involves behaviour or

conduct, or inability, which is neither intentional nor negligent.
(a) Poor work performance
Here the LRA distinguishes between employees on probation, and employees who have
completed their probationary period. The reason for this is that although all employees who
perform poorly must be assisted and counselled, the obligation and extent of doing so is less in
the case of a probationary employee.
The following are the important steps in the process before a probationary employee can be
dismissed for poor work performance:
 the employer must give the employee the evaluation, instruction, training, guidance or
counselling he or she may need to perform his or her duties during the probationary
period;
 the employer must make clear to the employee what the performance standard is, where he
or she falls short, and give the employee assistance and opportunity to improve;
 the employer should measure the progress and give feedback to the employee.
 the assistance needed and the period of probation will be determined by the nature of
the work; and
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 the employee should be given the opportunity to respond to the allegations of

unacceptable work performance and he or she may be assisted by a union representative or
fellow-employee.
You will notice the similarities to the process for the dismissal of a permanent employee who
underperforms. In this case the employer is required to:
 investigate to determine the reasons for the unsatisfactory performance;

 give appropriate evaluation, instruction, training, guidance or counselling; and
 give the employee a reasonable period of time to improve.
If the employee then continues to perform unsatisfactorily, he or she can be dismissed for poor
work performance.
The employee has the right to be heard and to be assisted by a union representative or
colleague.
(b) Ill health or injury
The Code: Dismissal distinguishes between temporary or permanent illness or injury. The LRA
protects an employee against unfair dismissal in these circumstances and the COIDA and UIA
can provide compensation under certain circumstances.
The LRA aims to prevent employers from dismissing employees because of injury or illness. In
the case of permanent illness, dismissal is sometimes the only option. This decision, however,
is more problematic in cases of temporary illness, because the possibility exists that the
employee can return to his or her previous position. This could, for example, happen when an
employee with cancer goes for chemotherapy for two months, or an employee undergoes a hip
replacement and is absent from work for three months.
In order to ensure procedural fairness, the employer must do the following in terms of the
LRA:
 consult with the employee;

 consider the available medical information; and
 attempt to accommodate the employee where reasonably possible.
If the employee is unable to work, the employer should investigate the extent of the incapacity.
If the employee is likely to be absent for an unreasonably long time, the employer should
consider alternatives before dismissal. If the employee is permanently unable to perform the job
as a result of illness or injury, the employer may dismiss the employee, but the employer must
also consider the circumstances. For both temporary and permanent disability the employer will
have to consider the following:
 the nature of the job;

 the period of absence;
 the seriousness of the illness or injury;
 the possibility of securing a temporary replacement for the ill or injured employee;
 the degree of incapacity;
 the cause of the incapacity – if the employee is incapacitated as a result of a work-
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related illness or injury, the duty on the employer to accommodate the incapacity of the
employee is more onerous;
 the availability of any suitable alternative work or adapting the duties or work
circumstances of the employee to accommodate the employee’s disability;
 whether or not the employee is capable of performing the work; and
 if the employee is not capable:
 the extent to which the employee is able to perform the work;
 the extent to which the employee’s work circumstances might be adapted to
accommodate the disability; or
 where this is not possible, the extent to which the employee’s duties might be
adapted.
In this process it is important that the employer makes an informed decision and that the
employee gets the opportunity to respond and make suggestions. The employee may be
assisted by a co-employee or union representative.
You must know the dispute resolution route for a dispute about the fairness of a dismissal for
incapacity. Dispute resolution for dismissal based on incapacity is discussed on pages 209-210
of your prescribed textbook.
5.4.5 Dismissal for operational reasons
Dismissal for operational reasons is also regarded as a ‘no-fault’ dismissal, because the
termination is not the result of the actions or fault of the employee.
Remember that the LRA defines operational reasons as reasons relating to:
 economic needs;
 technological needs;
 structural needs; or
 similar needs.
Also remember that ‘similar needs’ may include instances where:
 the employee’s actions or presence has a negative effect on the business;

 the employee’s conduct has led to a breakdown of the trust relationship; or
 the enterprise’s business requirements are such that changes must be made to the
employee’s terms and conditions of employment.
It is very difficult for the court to determine whether an employer had substantially fair reasons to
dismiss employees for operational requirements. The current approach is, however, that the
employer’s version will not merely be accepted on ‘face-value’. The court will determine if the
retrenchment has a reasonable basis and commercial rationale. Retrenchment should remain
a matter of ‘last resort’.
As a result of the fact that the requirements for substantive and procedural fairness are
intertwined, the court is very strict when it scrutinises whether the process prescribed by the
LRA has been adhered to.
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It is important that you know the process prescribed by section 189 of the LRA.
(a) Prior consultation
 Consultation must take place when the employer contemplates dismissal; in other
words, at the stage when the employer has not yet reached a final decision to dismiss,
but has merely foreseen the possibility.
 In terms of section 189(2) consultation means to ‘attempt to reach consensus’.
 It is also important to know with whom the employer must consult:
 with the person or group indicated in a collective agreement;
 if there is no collective agreement, with a workplace forum, if there is one;
 alternatively, with any registered trade union whose members are likely to be affected
by the proposed dismissals. If there is no such union, with the employees likely to be
affected by the proposed dismissals, or their nominated representatives;
 A single meeting is not ‘sufficient’ consultation with employees. A single meeting
during which the employer informs the employees of his plans is not sufficient to
constitute ‘consultation’.
(b) Attempt to reach consensus
There are six matters about which the parties must try to reach agreement/consensus namely:
 appropriate measures to avoid dismissals;

 appropriate measures to minimise the number of dismissals;
 appropriate measures to change the timing of the dismissals;
 appropriate measures to mitigate the adverse effects of the dismissals;
 the selection criteria; and
 severance pay.
(c) The employer must disclose all relevant information in writing
This requirement is regulated by sections 189(3) and 16 of the LRA, which compel an employer
to disclose relevant information. The right of the employees to demand information is not
unrestricted. In terms of section 16(5), four categories of information need not be disclosed,
namely information that:
 is legally privileged;
 the employer cannot disclose without contravening a prohibition imposed on him or
her by any law or order of any court;
 is confidential and, if disclosed, may cause substantial harm to an employee or the
employer; or
 is private personal information relating to an employee, unless that employee consents to
the disclosure of that information.
The CCMA, acting as an arbitrator, may order the disclosure of two of these categories of
information under certain circumstances (discussed below).
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(d) Opportunity to respond
Should the employer not allow the union or employee representative or workplace forum or any
other relevant party to make representations during consultation, the dismissal will be
procedurally unfair.
(e) Consideration
The employer must respond to the representations and give reasons if and why they are not
acceptable.
(f) Selection criteria
The Code: Dismissal Operational Requirements acknowledges the criterion of LIFO (last in,
first out) which is widely accepted as fair and objective. It can, however, amount to indirect
discrimination in some instances where, for example, only affirmative action appointments (the
last appointed employees) are affected.
The criteria FIFO (first in, first out) can also amount to indirect discrimination based on age.
(g) Severance pay
The payment of severance pay is regulated by section 41 of the BCEA. The employer must pay
the employee a minimum of one week’s salary per completed year of continuous service.
However, the employer’s duty to pay severance pay is not absolute. If an employee un-
reasonably refuses to accept the employer’s offer of alternative employment with that employer
or another employer, the employee forfeits his or her entitlement to severance pay.
The process for large scale retrenchments, in terms of section 189A of the LRA, is basically the
same, but differs from the basic process in three aspects:
 the appointment of a facilitator;

 the prescribed time periods; and
 the option to strike if the trade union feels the retrenchment is unfair.
Make sure you understand this section and that you can compare the processes of section 189
and section 189A retrenchments.
You must know the dispute resolution route for an alleged unfair dismissal for operational
reasons. Such a dispute must be referred for conciliation, and if unsuccessful to the Labour
Court for adjudication. Study paragraphs 3.5 “Procedural fairness and large-scale dismissals by
big employers” and 3.6 “Dispute resolution for unfair large-scale retrenchments” in Chapter 10
of the prescribed textbook.
5.4.6 Other ways of terminating the employment contract
A contract of employment may also be terminated in one of the following ways:
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 resignation by an employee
 on completion of an agreed period or task
 by mutual agreement
 on grounds of impossibility of performance
 as a result of insolvency of the employer
 as a result of retirement
5.5 QUESTIONS
CHAPTER 9
Ms Q is employed as an assistant manager at ZZ Perfume Company. Her contract of employment states

that she will be on probation for a period of six months. Four months after starting to work for ZZ
Perfume Company Ms Q informs the employer that she will need maternity leave as she is pregnant.
The employer advises her that her contract of employment is terminated for the following two reasons:
she is still on probation and she failed to disclose the fact that she was pregnant when she was offered
the job.
Discuss whether Ms Q’s dismissal was fair under the circumstances. (5)
Answer:
This question requires you to discuss whether Ms Q’s dismissal was fair based on the facts. You
must also deal with the two reasons that the employer has provided for the dismissal, that is,
that Ms Q was still on probation and that she failed to disclose the fact that she was pregnant
when she was offered the job. You must always ascertain what the question requires from you.
Ms Q’s dismissal is automatically unfair. In terms of section 187(1)(e) of the LRA a dismissal is
automatically unfair if the reason for the dismissal is the employee’s pregnancy, intended pregnancy, or
any reason related to her pregnancy. It is clear from the facts that Ms Q was dismissed because she is
pregnant or because she did not disclose her pregnancy when she was employed. It should be noted that
there is no obligation on the side of an employee to disclose her pregnancy to the employer. Section 6
of the EEA prohibits discrimination against job applicants on a number of grounds including
pregnancy. The fact that Ms Q was on probation does not affect the protection afforded to her in terms
of the LRA and the EEA.
Make reference to the Swart and Mashava cases on page 188 of the prescribed textbook.
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Section 187(1)(f) of the LRA states that it is automatically unfair to dismiss an employee if the reason
for the dismissal is the fact that the employee is of a certain race or of a certain age. Discuss this
statement fully. In your answer you must also discuss whether there are any exceptions to this rule. (3)
Answer:
This question requires you to discuss whether there are exceptions to the rule that it is
automatically unfair to dismiss an employee if the reason for the dismissal is the fact that the
employee is of a certain race or age.
There are exceptions to this rule.
A dismissal may be fair if the reason for the discrimination is based on the inherent requirements of the
job.
A dismissal based on age is fair if the employee has reached the normal or agreed retirement age for
persons employed in that capacity.
Affirmative action is not a ground of justification for dismissal – affirmative action cannot be a fair
reason for dismissal (it only applies with reference to the EEA and may justify discrimination where
one employee is chosen over another for employment on the basis of race).
List the SIX (6) forms of dismissal that fall within the meaning of dismissal in section 186(1) of the
LRA. (6)
Answer:
This question is clear as it merely requires you to list the six forms of dismissal. You should not
lose marks in such a question.
Termination of a contract by the employer, with or without notice

Refusal or failure by the employer to renew a fixed-term contract or to appoint an employee
indefinitely where he/she reasonably expected it to happen
Refusal to allow an employee to resume work after she took maternity leave in terms of any law,
collective agreement or her contract of employment
Selective re-employment
Constructive dismissal
An employee being provided with less favourable terms after the transfer of a business
Write brief notes on constructive dismissal as a form of dismissal in terms of section 186(1)(e) of the
LRA. (5)
Answer:
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Constructive dismissal occurs where the employee resigns.

Because the employer makes continued employment intolerable for the employee.
The employee terminates the contract, but this is not done voluntarily.
The employer’s conduct makes it impossible for the employee to continue working for the employer.
The employment relationship must be intolerable to the extent that the employee is left with no other
viable alternative but to resign.
The employee must have exhausted all the internal mechanisms of the employer available to him or her.
Therefore, resignation must be the last resort.
Which ONE of the following scenarios will NOT constitute an automatically unfair dismissal as
defined in section 187(1) of the LRA?
1. Jodie was dismissed because the old employer’s business was transferred to the new employer as
a going concern.
2. The employer terminated the contract of employment after the employee allegedly brought the
employer’s name into disrepute by making a protected disclosure in terms of the PDA.
3.* Dean is dismissed when he refuses to do George’s work, the night driver of the emergency
ambulance for the Intensive Care Unit, while George is participating in a protected strike
notwithstanding the fact that the work is necessary in order to prevent actual danger to the life
and/or health of patients.
4. Thandi is dismissed when she informs her employer that she is pregnant.
(2)
Which ONE of the following statements regarding constructive dismissal is INCORRECT?
1. Constructive dismissal occurs when the employer’s conduct caused the employee to resign.
2. Constructive dismissal occurs when the employer has made continued employment intolerable
for the employee.
3.* All constructive dismissals are unfair.
4. The employer may show that the constructive dismissal was not unfair.
(2)
CHAPTER 10
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Maggy works as a sales representative for Company X where Brenda is her supervisor. During March
2018, Brenda called Maggy to her office and told her that she (Brenda) is having an affair with Arnold,
a married co-employee. Maggy made it clear that she finds this to be unacceptable and she disapproves
of it. The relationship between Maggy and Brenda soured after this incident. Shortly thereafter, Brenda
asked Maggy to get her a charger from the storeroom because her phone’s battery needed charging.
Maggy fetched a new phone with a charger from the storeroom and handed the new charger to Brenda.
She, however, kept the phone. During April 2018, Maggy is informed by Brenda that there is an
investigation relating to stolen cellular phones. Maggy immediately acknowledges that she has a Nokia
3310 phone, belonging to the employer, at her home and that she will bring it back the next day, which
she does. The employer charges Maggy with unauthorised removal of and possession of a Nokia 3310
phone belonging to the employer without permission. Maggy is given one hour’s notice to attend a
disciplinary hearing. The enquiry finds that Maggy’s removal and possession of the phone was without
permission and unauthorised. She is consequently found guilty of misconduct and is dismissed. Maggy
is shocked that she is dismissed because two months ago another employee of Company X, Martha,
committed the same misconduct but she was only given a final written warning.
1.1 Discuss the requirements of a substantively fair dismissal and whether Maggy can make out a
case that her dismissal was substantively unfair? (5)
1.2 Discuss the requirements of a procedurally fair dismissal and whether Maggy can make out a case
that her dismissal was procedurally unfair? (5)
Answer:
1.1
You must first set out the requirements for a substantively fair dismissal for misconduct and you
must come to a conclusion based on the facts whether Maggy can make out a case that her
dismissal was substantively unfair. You must address both aspects as not doing so will result in a
loss of marks.
The Code: Dismissal sets out the following requirements for substantive fairness in cases of dismissal
for misconduct:
Did the employee contravene a rule or standard regulating conduct in the workplace;
If so - was it a valid or reasonable rule/standard;
Was the employee aware or could she reasonably be expected to have been aware of the rule or
standard;
Has the rule/standard been consistently applied by the employer. The employer cannot enforce a rule
which has previously been ignored. This would amount to historical inconsistency. The penalty of
dismissal should also be applied consistently;
Was dismissal the appropriate sanction for contravention of the rule/ standard;
Dismissal should be seen as a matter of last resort.
Maggy can only be punished if she knew that the conduct was unacceptable and that the transgression
of the rule could lead to dismissal.
The fact that, in the past, Martha who committed the same misconduct, was not dismissed, neither was
any action taken against her, makes it less likely that Maggy should have known that the transgression
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could lead to dismissal. Maggy’s dismissal will thus be substantively unfair because of the historical
inconsistency of the application of the rule.
Answer:
1.2
You must first set out the requirements for a procedurally fair dismissal for misconduct and you
must come to a conclusion based on the facts whether Maggy can make out a case that her
dismissal was procedurally unfair. You must address both aspects as not doing so will result in a
loss of marks.
The main principle in constituting a fair process is that the employer must give the employee an
opportunity to be heard and to defend herself against the allegations. The requirements for a
procedurally fair dismissal are as follows:
Did the employer conduct an investigation to determine whether there are grounds for dismissal;
Did the employer notify the employee of the allegations in a form and language that the employee
could reasonably understand;
Did the employee get reasonable time to prepare;
Was the employee allowed to state a case in response to the allegations;
Was the employee allowed the assistance of a union representative or co-employee;
Did the employer furnish the employee with written notification of the decision as well as the reasons
for the decision;
If the employee is dismissed, did the employer remind him/her of any rights to refer the matter to the
CCMA or bargaining council.
It is clear in this case that Maggy did not get reasonable time to prepare as she was only given one
hour’s notice to attend the disciplinary hearing.
The fact that she was only given an hour’s notice could have also made it difficult for her to state a case
in response to the allegations and to get the assistance of a union representative or co-employee (which
she is entitled to).
Based on the above, Maggy can definitely make out a case that her dismissal was procedurally unfair.
Briefly discuss the requirements for a dismissal for misconduct to be substantively fair. (5)
Answer:
This question merely requires you to discuss (set out) the requirements for a dismissal for
misconduct to be substantively unfair. You should not lose marks in such a question.
Did the employee contravene a rule or standard regulating conduct in, or of relevance to the workplace?
Was the rule valid or reasonable?
Was the employee aware, or could he/she reasonably be expected to have been aware, of the rule?
Has the rule been consistently applied by the employer?
Is dismissal an appropriate sanction for the contravention of the rule?
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List and discuss the remedies for unfair dismissal. (8)
Answer:
Reinstatement is the primary remedy. Reinstatement means that the employee is placed in the position
he or she occupied before the dismissal.
In the case of re-employment the employee is re-employed by the employer, but not in the position he
or she occupied before.
Reinstatement or re-employment cannot be ordered in the following circumstances:
when the employee does not wish to be reinstated;

when the circumstances surrounding the dismissal are such that it would be intolerable to
continue with the employment relationship;
when it is not reasonably practicable for the employer to reinstate or re-employ the employee;
and
where the dismissal is unfair only because the employer did not follow a fair procedure.
Compensation is the other remedy and it must be just and equitable. A maximum of 12 month’s salary
can be awarded as compensation to an employee whose dismissal was substantively and/or
procedurally unfair.
For the purpose of compensation, remuneration is calculated at the employee’s rate of remuneration on
the date of dismissal. The compensation for an automatically unfair dismissal must be ‘just and
equitable’ but not more than the equivalent of 24 month’s remuneration.
List the FIVE (5) factors which must be considered to determine if dismissal is an appropriate sanction
(penalty) in cases of misconduct. (5)
Answer:
This question merely requires you to list the factors which must be considered to determine if
dismissal is an appropriate sanction in cases of misconduct. This question must not be confused
with the requirements for a dismissal for misconduct to be substantively fair.
The length of service

Previous disciplinary record
Personal circumstances
The nature of the job
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The circumstances of the infringement itself
Paul is employed by Company Y as a driver. Every Saturday Paul arrives for work late and drunk. His
employer has been monitoring him and can no longer tolerate Paul’s conduct. The employer decides to
dismiss him.
Which ONE of the following is a requirement for the dismissal to be PROCEDURALLY fair?
1. The employer must prove that the employee contravened a reasonable rule.
2. The employer must prove that the employee knew about the existence of the rule.
3.* The employer must give the employee an opportunity to respond to the allegations
4. The employer must ensure that the sanction of dismissal is applied consistently. (2)
Which of the following statement/s with reference to incapacity is CORRECT?
A Dismissal for incapacity is regarded as a no-fault dismissal.

B Alcoholism should be treated as incapacity.
C It may be easier to dismiss a probationary employee than an employee whose appointment has
been confirmed.
D The employer should get the employee's input on alternatives before dismissing an employee for
ill-health or injury.
E Incapacity involves employee conduct that is not intentional but negligent.
The correct answer to this question is:
1. A, B and D
2. A, B and E
3.* A, B, C and D
4. A, B, C, D and E (2)

One of the rules of natural justice is the so-called audi alteram partem-rule. This principle is
firmly entrenched in our law and basically means that before any judicial functionary takes a
decision on a matter, both sides of the story must be heard. It originates from the natural
desire of man to be fair to his fellow human beings. If the rule is observed diligently, and in all
spheres of life, it leads to a just and fair society.
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This principle is similar to the principle found in traditional African societies with their strong
emphasis on the due observance of procedure. All members of the community must be allowed
to voice their opinions when their interests are affected.
It can therefore be argued that ubuntu and the audi alteram partem-rule converge in their
common quest for social justice and fairness. The audi alteram partem-principle is reflected in
ubuntu and the rule correlates with one of the values of ubuntu. Ubuntu ultimately dictates that
one has to be fair in all one’s relationships, which will include being quick to listen
compassionately to other people’s stories and slow to pass judgment.
The same principles are entrenched in the LRA, in Schedule 8, Code of Good Practice:
Dismissal.
Dismissal must be substantively as well as procedurally fair. Inherent in procedural fairness is

the requirement that the employee must know of what he or she is accused, must be afforded
the opportunity to prepare and to present his or her side of the story, and get the opportunity to
cross-examine witnesses.
The LRA also makes provision for compulsory mediation/conciliation in all dismissal disputes,
before the matter may proceed to arbitration or adjudication. Mediation is essentially ubuntu in
practice. See Joubert J “Embedding Mediation in South African Justice” (mediate.com) where
the author holds that what mediation and ubuntu have in common is that they both advocate
an alternative to confrontation, a solution where winning is not necessarily the best and only
option, but where parties can reach a negotiated settlement, by applying their minds.
Another area which shows an interesting similarity with African tradition, is the suggested
process for large-scale retrenchments. In African tradition, disputes that involve large groups of
the community, require that the elders be called in to try and resolve the dispute. This is similar
to a facilitator that can be called in by either of the parties in a large scale retrenchment, in
terms of section 189A, included in the 2002 amendments to the LRA. The purpose of the
facilitator is to help the parties reach a settlement.
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LLW2601/501/3/2021

Tutorial letter 501/3/2021

Individual Labour Law

Department of Mercantile Law

1. INTRODUCTION TO THE MODULE ............................................................... 3

1. INTRODUCTION TO THE MODULE

Welcome to this module in Individual Labour Law (LLW2601).

In a recent matter Lamont J made the following remark:

2. THE PRESCRIBED TEXTBOOK

3. OVERVIEW OF THE PRESCRIBED TEXTBOOK

The prescribed textbook LABOUR LAW Rules! consists of five parts:

Part I: Introduction to labour law

PART I: INTRODUCTION TO LABOUR LAW

PART II: RULES APPLICABLE DURING THE COURSE OF EMPLOYMENT

• the requirements for the conclusion of a valid contract;

PART III: RULES APPLICABLE TO THE TERMINATION OF THE EMPLOYMENT

At the start of the relationship it is important to determine whether a person qualifies as an

1.1 WITH WHAT DOES THIS STUDY UNIT DEAL?

1.1 WITH WHAT DOES THIS STUDY UNIT DEAL?

1.2 KEY CONCEPTS TO LOOK OUT FOR IN THE UNIT

1.3 PRESCRIBED MATERIAL

1.4 IMPORTANT ASPECTS FOR DISCUSSION

1.4.1 An employee and an independent contractor

It is important to know the difference between an employee and an independent contractor

1.4.2 Employers/Labour brokers

1.4.3 The common law and the contract of employment

1.4.4 Duties of the employer and employee

1.4.5 Vicarious liability

1.4.6 Restraint of trade

A restraint of trade clause is included in a contract of employment to protect the employer’s

1.4.7 Breach of contract

1.4.8 Changes to terms and conditions of employment

Question 1 – example of a practically based question

Question 2 – example of a straight-forward question

 Is replacing another employee who is temporarily absent from work

 Is a non-citizen who has been granted a work permit for a period

 Is employed to perform seasonal work

 Is employed for the official public works or similar scheme

 Is employed in a position which is funded by an external source for a limited period

Question 3 – example of a multiple-choice question

Question 4 – example of a multiple-choice question

Question 1 – example of a practically based question

There is nothing in need of protection.

Question 2 – example of a straight forward question

Describe the employee’s duty to render services to the employer. (4)

Question 3 – straight forward question

• By agreement between the employer and the employee;

Question 4 – example of a multiple choice question

1.6 AFRICANISATION AND LABOUR LAW

2.1 WITH WHAT DOES THIS STUDY UNIT DEAL?

2.1 WITH WHAT DOES THIS STUDY UNIT DEAL?

2.2 KEY CONCEPTS TO LOOK OUT FOR IN THE UNIT

• the scope of the BCEA: total and partial exclusions

2.3 PRESCRIBED MATERIAL

 You have to study the whole of chapter 4.

2.4 IMPORTANT ASPECTS FOR DISCUSSION

• establishes and enforces basic conditions of employment,