SURNAME & INITIALS: : Vhulenda Mauda

STUDENT NO: : 61831336

ASSIGNMENT NO: : 02

SUBJECT CODE: : MRL2601

DUE DATE: : 12 April 2022

Unique NO: : 588410

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Question 1

"If an employee believes that their dismissal was unfair or that the employer did not follow the
correct procedure, the employee can challenge the dismissal." (“Higgs Attorneys Inc.”) This
can be a daunting process to embark on. It is always advised to seek proper and professional
advice when challenging your employer.

A dismissed employee who wishes to refer an unfair dismissal dispute to the CCMA must
complete an LRA (Labour Relations Act 1995) Form 7.11.

The LRA form 7.11 is only five pages long and is easy to complete. The form also includes
directions on how to proceed when referring a dispute. The CCMA will provide a date for
conciliation after the referral has been lodged. Unfortunately, no legal assistance is allowed
during the conciliation process.

"The LRA allows an employer to dismiss an employee for the following reasons:" (“Higgs
Attorneys Inc.”)

• Misconduct by the employee, such as theft, being absent without approval, or

disobeying the employer’s instructions are all grounds for fair dismissal.

• Retrenchment is also a fair dismissal. Retrenchments are based on the operational

requirements of the employer. This includes financial constraints.

• Incapacity, when an employee can no longer perform his duties.

"If a dismissal is determined to be unfair, the employee may be reinstated, re-employed, or

receive financial compensation." (“Higgs Attorneys Inc.”)

The dismissed employee is likely to receive compensation if:

• The employee does not wish to be reinstated.

• "The circumstances regarding the dismissal would make the employee-employer
relationship intolerable." (“4 Steps to Dealing with Unfair Dismissal - Higgs Attorneys
Inc.”)
• The employer did not follow the correct procedure.
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"In terms of Section 193(2)(d) of the LRA, an employee whose dismissal was only procedural
unfair may not be reinstated but may receive compensation." (“Dismissal of an employee -
Procedure and the law”)

The requirement for procedural fairness entails that the employer must follow fair processes
prior to making the decision to dismiss the employee. In cases of misconduct, the employer
should conduct investigations into alleged misconduct and the employee must be given an
opportunity to state his/her case against those allegations. The employee is entitled to a fair
period to obtain representation and prepare a response.

Procedures to be followed during retrenchment proceedings are set out in Section 197 of the
LRA. "They require, among other things, that the employer initiates a good faith consultative
process between itself and affected employees with the view to fashioning and implementing
measures that may result in dismissals being averted." (“Dismissal of an employee -
Procedure and the law”)

Question 2

2.1 In terms of the common law, the fiduciary duties of directors require that a director
acts in good faith and in the best interests of the company, without limitation
avoiding conflicts of interest, not exceeding the company’s powers and accounting
for secret profits. Because it is not the intention of the legislator to unreasonably
overrule law practices that has been built up over a number of years, these
common law provisions will continue to apply as long as they do not conflict with
the new Act. The fiduciary duties of directors stipulate that a director will act in the
best interests of the company and with the necessary care and skill if he/she has
no personal/financial interest, or did not reasonably know that any related person
had an interest, or disclosed a conflict of interest, and made a decision or
supported a decision of the board believing that he/she was acting in the best
interests of the company. (“Fiduciary duties of directors | What are they? - MMS
Group”)

2.2 (a) Any corporation which fails to comply with any provision of any of the preceding
subsections of this section, and every member thereof who is a party to such
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failure or who fails to take all reasonable steps to secure compliance by the
corporation with any such provision, shall be guilty of an offence.

(b) In any proceedings against any member of a corporation in respect of an

offence consisting of a failure to take reasonable steps to secure compliance by a
corporation with any provision referred to in paragraph (a), it shall be a defence if it
is proved that the accused had reasonable grounds for believing and did believe
that a competent and reliable person was charged with the duty of seeing that any
such provision was complied with, and that such person was in a position to
discharge that duty, and that the accused had no reason to believe that such
persorn had in any way failed to discharge that duty.

Bibliography

Higgs Attorney Inc. 4 STEPS TO DEALING WITH UNFAIR DISMISSAL.

https://www.higgsattorneys.co.za/articles/. Viewed on 11 April 2023.

(“Fiduciary duties of directors | What are they? - MMS Group”)

https://www.mmsgroup.co.za/what-are-a-directors-fiduciary-duties/ by Simone | Jun 14, 2018

ACADEMIC HONESTY DECLARATION

Declaration: …..Vhulenda Mauda ........

• I understand what academic dishonesty entails and am aware of Unisa’s policies in this
regard.
• I declare that this assignment is my own, original work. Where I have used someone
else’s work, I have indicated this by using the prescribed style of referencing. Every
contribution to, and quotation in, this assignment from the work or works of other
people has been referenced according to this style.
• I have not allowed, and will not allow, anyone to copy my work with the intention of
passing it off as his or her own work.
• I did not make use of another student’s work and submit it as my own.

NAME: Vhulenda Mauda……………………………………

SIGNATURE: Mauda………………………………………………
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STUDENT NUMBER: 61831336 …………………………………

MODULE CODE: MRL2601 …………………………………………….

DATE: 12 April 2023………………………………………………