SURNAME & INITIALS: : Vhulenda Mauda

STUDENT NO: : 61831336

SUBJECT CODE: : MRL3702

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Question 1
1.1
(a) Completion of the contract. The parties shall exercise their best efforts to reach
agreement on the Contractor's responsibilities for sponsorship, management and
administration of the Plans prior to or at the time of Contract Completion.

(b) Termination by agreement. Termination by agreement is a mutual agreement

between two parties to end a contract or employment relationship. It is also known as
mutual termination or separation agreement. This type of termination is usually done
when both parties agree that it is in their best interest to end the relationship.

(c) Termination on insolvency. Either Party may terminate this Agreement if, at any time,
the other Party files in any court or agency pursuant to any statute or regulation of
any state or country a petition in bankruptcy or insolvency or for reorganization or for
an arrangement or for the appointment of a receiver or trustee of the Party or of
substantially all of its assets.

(d) Termination as a result of breach of contract. A repudiatory breach of contract will

allow the innocent party to treat the contract as being at an end. However not all
breaches will be repudiatory breaches. The nature of the term and the breach itself
are highly relevant.

(e) Termination on notice. A notice of contract termination is a formal letter that informs a
party or various parties that a business wishes to terminate an agreement they’d
previously entered. This document states when the business relationship between
the parties will end, creating a record that can be used if either party makes any
claims.

1.2 Employers do not have to remunerate employees for services not rendered, this
means the employer is not obligated to pay Lebitso and Lebona because no work
was done, no services were rendered.

1.3 Section 186(2) of the Labour Relations Act (LRA) defines “Unfair labour Practice”
as any unfair act or omission that arises between an employer and an employee
involving- unfair conduct by the employer relating to the promotion, demotion,
probation (excluding dismissals of probationers) or training of an employee or
relating to the provision of benefits to an employee). Unfair labour practice occurs
when an employee or job applicant gets treated unfairly by an employer.

Question 2
1.2 HIV is specifically and directly addressed in the Employment Equity Act: Section
6(1) of the Act provides that “no person may unfairly discriminate against an
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employee, or an applicant for employment, in any employment policy or practice,

based on his or her HIV status”. Furthermore, the Labour Relations Act protects the
employment of employees living with HIV. It provides that employees with HIV/Aids
may not be dismissed because of their status. Section 14 of the Constitution
guarantees everyone the right to privacy, including people infected with HIV/Aids.
What’s more, the Constitution requires employers to promote a non-discriminatory
environment that accords with an open, free and transparent society.

Employees are not legally obligated to disclose their status to an employer or

colleagues, should an HIV-positive employee decide to share their status with a
superior or manager, they cannot share it with anyone else without explicit consent.

If an employer (or potential employer) requests an employee to take an HIV test,

they have the right to refuse. If an employee’s status is known in the workplace, the
employer and co-workers cannot victimise them. An employer is not allowed to
demote or dismiss someone based on their HIV status. The only time an employer
may dismiss someone is when they become too ill to do their job. Even then, that
person may only be dismissed after the employer has followed “rigorous
procedures” and tried to find alternative employment for the employee in question.

An employer is also not allowed to hold back a promotion based on an employee’s

status. An HIV-positive staff member is entitled to the same benefits as any
employee without HIV.

An employer must take the necessary steps and implement processes that educate
employees about HIV and make HIV-positive workers feel accepted and valued.
Being able to request time off for clinic appointments. Having discussions about
flexible working arrangements. Taking medication at work without fear of being
judged. Accounting for temporary poor work performance. Being able to justify
periods of sickness.

An HIV-positive employee will probably only feel comfortable disclosing their status
if the working environment is safe to do so and the other employees are educated
about HIV. Hold regular HIV/AIDS awareness programmes. Create an environment
that is conducive to openness, disclosure and acceptance amongst all staff. Try to
establish a wellness programme for employees affected by HIV/AIDS. Provide
access to counselling and other forms of social support for people affected by
HIV/AIDS. Maximise the performance of affected employees through reasonable
accommodation, such as investigations into alternative sick leave allocation.
Develop strategies to address the direct and indirect costs associated with
HIV/AIDS in the workplace. Regularly monitor, evaluate and review the programme.

Question 3
3.1
(i) This is the most common ground for dismissal. Dismissal for misconduct
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results from an employee’s conduct that is accompanied by an element of

fault. Thus, how the employee has conducted himself or herself is the main
factor in cases of misconduct. The action or conduct could amount to
breaking a workplace rule, either intentionally or negligently; or a breach of a
material term of the contract of employment; or a breakdown in the
employment relationship. However, in most cases the employee faces
disciplinary action because he or she has broken a certain workplace rule.
Anyone who has to determine whether a dismissal for misconduct is fair or
unfair must consider: whether a rule or standard regulating that conduct in
the workplace has been contravened; if it was contravened, whether the rule
or standard was valid or reasonable; whether the employee was aware of
the rule or standard, or could reasonably be expected to have been aware;
whether the employer has consistently applied the rule or standard; and
whether dismissal was an appropriate sanction.

The LRA does not define incapacity, but the Code of Good Practice:
Dismissal recognises two types of incapacity – namely, poor work
performance and ill health or injury.
19 Incapacity due to ill health or injury
may emanate from temporary or permanent disability (physical or mental),
known as medical incapacity. Incapacity may also result from other factors
not mentioned by the Code such as loss or lack of a qualification, loss of a
work permit, statutory prohibition,20 and incompatibility

An employee who is dismissed on the basis of the employer’s operational

requirements is ordinarily not at fault27 as the reason for the dismissal
normally arises out of factors relating to the employer’s business – hence the
concept of “operational” requirements or needs. Such a dismissal mostly
occurs where an employee’s position becomes redundant, or surplus to the
employer’s needs, at any particular time. Section 213 of the LRA defines
operational requirements as requirements based on the economic,
technological, structural or similar needs of an employer.28 While the Code of
Good Practice on Operational Requirements describes what might constitute
economic, technological and structural reasons,29 it does not provide any
description or examples of what “similar needs” may be or entail and this has
created a challenge for both employers, relevant forums and courts of law.

(ii) FIFO and LIFO are methods used in the cost of goods sold calculation. FIFO
stands for First-In, First-Out assumes that the oldest products in a company’s
inventory have been sold first and goes by those production costs. The LIFO
stands for Last-In, First-Out method assumes that the most recent products in a
company’s inventory have been sold first and uses those costs instead.

(iii) Dismissal for misconduct, Dismissal for incapacity, Dismissal for operational
requirements.
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3.2 Section 213 of the LRA defines protest action as the partial or complete
concerted refusal to work, or the retardation or obstruction of work, for the purpose
of promoting or defending the socio- economic interests of workers, but not for
a purpose referred to in the definition of a strike.’ The main difference between a
strike and protest action lies in their purposes. The purpose of a strike has to do
with matters of mutual interest between the employer and employees whereas that
of a protest action has to do with socio economic interests such as Education.

Question 4
4.1
(i) A collective agreement is a written contract negotiated through collective bargaining
for employees by one or more trade unions with the management of a company (or
with an employers’ association) that regulates the terms and conditions of
employees at work. It is an agreement on workers’ terms and conditions of
employment, or any matter of mutual interest. The agreement is not intended to be
legally binding unless expressed to be so in writing.

(ii) An employee that feels s/he has been unfairly retrenched may refer his/her dispute
to the Commission for Conciliation, Mediation and Arbitration (“CCMA”) or a
bargaining council. The employee must refer a dispute to the CCMA or bargaining
council within 30 days from date of retrenchment. If the dispute is not resolved at
conciliation, the employee may refer the dispute to the Labour Court.

The employer must give notice to the affected employees of the need for the
proposed retrenchment. This notice must be in writing and contain the necessary
information for the consulting employees to make representations at the
consultation. The necessary information includes but is not limited to: the reasons
for the proposed retrenchment; options considered by the employer to avoid the
proposed retrenchment and the reasons for rejecting these options; the number of
employees likely to be affected and their positions.

(iii) Participation in an unprotected strike may in terms of section 68 (5) of the LRA
constitute a fair reason for dismissal. In deciding whether a dismissal was fair the
provisions of the Code of Good Practice dealing with dismissals, as contained in
schedule 8 of the LRA, must be taken into account. Item 6 of the Code of Good
Practice states that participation in an unprotected strike constitutes misconduct.
However the Code also states that as in the case with any other act of misconduct
participation in an unprotected strike does not necessarily justify dismissal. For a
dismissal to be fair, such dismissal must be substantively and procedurally fair

It does not follow as a matter of course that the dismissal of strikers who
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participated in an unprotected strike is fair. The substantive fairness of

such a dismissal depends on all the circumstances surrounding the strike.
Item 6 of the Code of Good Practice requires that the substantive fairness
of the dismissal of strikers who participated in an unprotected strike must
be evaluated in the light of the facts of the case.

(iv) Employers have the legal right to hire temporary replacement workers if they are on
strike or locked out. During a strike or lockout, it is the employer’s responsibility to
pay replacement workers at the same rates as the ones it is paying to the workers it
is replacing. It is a payment made to a union member who is on strike by the union.