UNIVERSITY EXAMINATIONS

May/June 2024

LLW2601

Individual Labour Law

60 Marks
Duration 4 Hours

First examiner: Mr D RAMMILA

Second examiner: Ms MM MULAUDZI

This paper consists of 11 pages.

Instructions:

INSTRUCTIONS FOR A TAKE-HOME EXAM ON MYEXAMS

PLEASE READ THE FOLLOWING INSTRUCTIONS CAREFULLY BEFORE ANSWERING THE

EXAMINATION QUESTIONS.

1. The examination question paper counts SIXTY (60) marks.

2. It consists of FOUR (4) questions. Answer ALL questions.

3. The duration of the examination on the timetable is 4 hours.

4. In addition to the duration of the examination indicated on the timetable, you are given 30 minutes
to FINALISE the uploading of your exam file. Your exam file must be uploaded via the myExams
platform on 23 MAY 2024 BEFORE 12H30 PM (South African Standard Time). The 30 minutes
is NOT to be used to write your examination.

5. This is an open-book examination. You may consult your prescribed study material during the
examination. (Textbook and Class Slides Only).

6. This examination uses Turnitin.

6.1 Students who have not previously accepted the Turnitin End-User Licencing Agreement (EULA)
must accept the EULA on the myExams page. The EULA can be found where you download the
Examination Question Paper and submit your exam answer file.

6.2 Your exam answer file must be TYPED and converted to a single PDF document with
SELECTABLE TEXT. HAND-WRITTEN or SCANNED documents are NOT ACCEPTED.

6.3 Your exam answer file MUST ONLY BE SUBMITTED on the myExams platform. There is NO
OPTION to submit on the Invigilator App.
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6.4 Do not attach a Declaration of Academic Honesty. You accept a Declaration when you submit your
examination answer file on the myExams platform.

7. This examination is proctored via the Invigilator App. You are required to activate the Invigilator
App by scanning the QR Code below between 07H45 AM and 08h30 AM (South African Standard
Time).

The QR code is below:

7.1 If you experience challenges with the Invigilator App, please send a WhatsApp message to the
technical helpdesk on 073 505 8273. DO NOT CALL THE NUMBER.

DO NOT contact lecturers about Invigilator App-related issues. Lecturers cannot assist with
Invigilator App issues.

7.2 You will have 48 hours from the date of their examination to upload their invigilator results
from the Invigilator App. Failure to do so will result in students deemed not to have utilised the
required invigilation or proctoring tools.

8. The uploading of your exam file on the myExams platform must be finalised within 30 minutes
of the scheduled (timetabled) end of the exam.

8.1 When ready to submit, open the Take-Home (Assignment) assessment again and click on the
Add Submission button.
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8.2. Note the file requirements such as:

a. File size limit.
b. Number of files that can be submitted.
c. File formats allowed.

8.3. Check the acknowledgment checkbox and upload your answers document and then click on
the Save changes button. (This is the only Declaration you require).

8.4. Review your submission information regarding the status and click on your submission file link to
check if it's correct.
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8.5. If you need to resubmit a file, you can click on the Edit Submission button. Do not click on the
Remove submission button. Note: You will need to delete any existing files by clicking on the
file and then on delete.

8.6 Use proper PDF conversion software to create the final file for upload. Free PDF conversion
software is available on the Internet.

8.7 Add your student number and the module code in the file name. That will assist you to select the
correct document to upload during submission.

8.8 You are advised to preview your submission (answer script) to ensure legibility and that the
correct answer script file has been uploaded.
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9. The cover page for your take-home exam must include your name, student number and the module
code.

10. Your submission on the myExams platform on Moodle must be made in the form of one PDF
document. Only the last file uploaded and submitted will be marked.

10.1 The exam answer file that you submit must not be password protected or uploaded as a “read only”
file.

10.2 Your examination answer file will not be marked if:

10.2.1 you send your examination answer file via email.

10.2.2 you submit the incorrect examination answer file. A mark of 0% will be awarded.
10.2.3 you submit your exam answer file on an unofficial examination.
10.2.4 you submit your examination answer file in the incorrect file format.
10.2.5 you submit a password-protected document.
10.2.6 you submit your examination answer file late.
10.2.7 you submit your answer file from a registered student account that is not your own.

10.3 The mark awarded for an illegible examination answer file submission will be your final mark. You
will not be allowed to resubmit after the scheduled closing date and time of the exam.

10.4 Listening to audio (music) and utilising audio-to-text software has been strictly prohibited during
your examination session, unless use of the software is related to a student’s assistive device
which has been declared. Listening to music, utilising such software and/or failing to declare the
software is a transgression of Unisa’s examination rules and the student's marks will be withheld.

11. Your typed answers must ideally adhere with the following requirements:

11.1 The text must be typed in Arial font, size 12 with single line spacing within the paragraph, and double
line spacing after the paragraph.

11.2 The text must be justified.

11.3 All of the pages must be numbered in the right hand corner at the bottom of the page.

11.4 All margins must be 2.5cm, but the left margin must be 3cm.

11.5 South African English and not American English should be used. For example, the correct spelling
is “Labour” and not “Labor”.

11.6 Do not use abbreviations or SMS language.

11.7 All quotes that are two lines long (or less), must form part of the main text, be written in italics, and
be bracketed by quotation marks. Where a quotation is longer than two lines, it must be typed in a
separate paragraph in italics in size 11 font and must be indented by 1 cm. No quotation marks are
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required when the quotations stand alone. Use quotations very sparingly. In this take-home exam,
a maximum of 5% of the text may be quoted.

12. When answering the take-home exam questions, remember that an open-book exam is a test at a
higher level than the usual type of exam, where memory is tested as much as insight. In an open-
book exam, you need not memorise any information. You are expected to prove that you can use
information, rather than merely repeat it. In brief, what is being tested is factual knowledge,
understanding and the correct application thereof, not memory skills. For this reason, you do not
earn marks by merely detailing a list of all the information that you think might be relevant to a
particular question. This gives no indication that you know what statutory or other provisions are
applicable in a specific context. You are expected to identify precisely what information applies, and
then explain why you think so.

12.1 Also, because you have the guide available when answering questions, we do not give marks for
direct quotations from the guide. You are therefore assessed on your level of understanding of the
legal principles by looking at how well you applied the principles to the questions.

12.2 PLEASE DO NOT CUT AND PASTE ANSWERS FROM THE STUDY GUIDE (OR ANY OTHER
SOURCE).

13. The arguments that you make must be logical, well-structured and substantiated by all of the
relevant legal principles. Use the time given wisely.

13.1 Ensure that you give reasons for each answer. Substantiate your answers by referring to ALL of the
relevant authorities, e.g. sections from relevant legislation and/or court cases in the text or in your
footnotes.

13.2 You are required to have read and summarised the prescribed cases yourself. The summaries in
the Study Guide are not sufficient for this exam. When using case law to support your answer,
please include complete references to the relevant cases in your footnotes. This means that you
must not only include the name of the case but also the exact page and section and/or paragraph
where the information can be found. The same applies to articles and books used.

13.3 A number of students lose marks because they do not approach problem-type questions correctly.
When answering such questions, it is important to first clarify for yourself the area of work where
the answer must be sought. Once you have done this, set out the relevant legal principles. Deal
only with those principles that relate to the given facts. Next, apply these principles to the facts. This
is where most of the students lose marks - they set out the law in some detail, but then do not
illustrate how it applies to the factual situation they have been asked to solve. Finally, state your
conclusion.

14. You must complete the online declaration of own work when submitting. DO NOT ATTACH A
DECLARATION.

14.1 By ticking the Honesty Declaration, you confirm that you have read (i) the University’s Policy on
Copyright Infringement and Plagiarism and the Student Disciplinary Code, which are both available
on myUnisa: www.unisa.ac.za/unisarules, and (ii) the information relating to student values and
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plagiarism that is found at https://www.unisa.ac.za/sites/myunisa/default/Study-@-Unisa/Student-

values-and-rules.

14.2 Students suspected of dishonest conduct during the examinations WILL BE SUBJECTED TO
DISCIPLINARY PROCESSES. Students may not communicate with any other person or request
assistance from any other person during their examinations. The use of Telegram, WhatsApp or
any other instant messaging services with any other person (except when asking for technical
assistance via official channels of the SCSC or the Invigilator WhatsApp line) are strictly prohibited.

14.3 Plagiarism is a violation of academic integrity and students who plagiarise, copy from
published works or use Artificial Intelligence Software (eg ChatGPT) will be in violation of
the Policy on Academic Integrity and the Student Disciplinary Code and will be referred to a
disciplinary hearing. Unisa has a zero tolerance for plagiarism and/or any other forms of academic
dishonesty.

14.4 Unless a student is exempted because of disability or incarceration, students who have not utilised
invigilation or proctoring tools will be deemed to have transgressed Unisa’s examination rules and
will have their marks withheld.

PLEASE NOTE:

If you experience challenges with the Invigilator app, please send a WhatsApp message to the technical
helpdesk on 073 505 8273. Do not contact the lecturers.

For all other exam-related challenges, you may contact the SCSC on 080 000 1870 or e-mail
Examenquiries@unisa.ac.za or refer to Get-Help for the list of additional contact numbers.

PLEASE TAKE NOTE OF THE FOLLOWING IMPORTANT INFORMATION:

≈ Your answers must be concise and straight to the point.

≈ Do not attach a DECLARATION OF HONESTY.

≈ Pay attention and adhere to the answer page limit for every question.

≈ You must write in your own words.

≈ Copying and pasting from any source is prohibited.

≈ The use of any AI software is strictly prohibited and will not be tolerated. Disciplinary
action will be taken against any student suspected of using AI.

≈ You are ONLY ALLOWED to use the prescribed textbook and/or provided lessons.
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≈ Whereby a scenario-based question requires you to make reference to legislation and/or

case law, your answer must include the relevant legislation and section, each cited in
full:

SEE THE EXAMPLE BELOW ON CITATION OF CASES AND LEGISLATION:

Sarah’s issue relates to a dismissal for her pregnancy. It particularly concerns a dismissal that
qualifies as an automatically unfair dismissal. In terms of section 187(1)(e) of the Labour
Relations Act 66 of 1995 (LRA), when an employer dismisses an employee for reasons related to
her pregnancy, such a dismissal will be automatically unfair. In other words, the employee is
protected from dismissal if the reason for that dismissal is her pregnancy. In Heath v A&N
Paneelkloppers (2015) 36 ILJ 1301 (LC) (Heath), the Labour Court held that the dismissal of a
pregnant employee who was claimed to be “very emotional” was automatically unfair, since the
actual reason for her dismissal was the employer not wanting to be inconvenienced by a pregnant
employee and her need to go on maternity leave.

It is clear from the above facts that Sarah was not dismissed because of the Jingoist religious
objections of her boss, Raffael, but because of her pregnancy. Raffael had specifically expressed
concern that her request for maternity leave would cause harm to his business since she would be
gone for four months. Evidently, the reason for dismissal was informed by her pregnancy. However,
the LRA under section 187(1)(e) provides that a dismissal that is based on an employee’s
pregnancy is automatically unfair. Since Sarah’s dismissal is actually due her pregnancy, her
dismissal violates section 187(1)(e) of the LRA and is therefore automatically unfair too, as
confirmed by the. Sarah is likely to succeed in her unfair dismissal claim against her employer.
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QUESTION 1
Ms. Eastwood was employed as an administrative assistant at Horizon Enterprises. She claims that
her supervisor, Mr. Oldman, subjected her to unwelcome conduct on multiple occasions throughout
the year 2023 which made her feel uncomfortable. The conduct included remarks about the shape
of her body, her “sexiness” and other unsolicited romantic advances. The inappropriate behaviour
persisted, and in September 2023, she reached out to Ms. Daley, the company’s employee relations
specialist, to report Mr. Oldman’s conduct. Ms. Daley acts on behalf of Horizon Enterprises over all
employee relations matters. Despite her report, Ms. Daley made no attempt to address her
complaints. Instead, Ms. Daley told Ms. Eastwood that she was overreacting, and that Mr. Oldman’s
behaviour was just “boys being boys”. Feeling very uncomfortable and unable to continue working
with Mr. Oldman, Ms. Eastwood tendered her resignation in November 2023.

Ms. Eastwood now seeks legal advice FROM YOU on how to proceed in light of these events.

With reference to legislation and case law, analyse Ms. Eastwood’s legal situation and advise
on any possible remedy she may have against her former employer, Horizon Enterprises.

(20)
NB: You must apply the principles to the facts. You need NOT discuss constructive dismissal.

YOUR ANSWER MUST NOT EXCEED 1.5 PAGES.

[TOTAL FOR QUESTION 1: 20 MARKS]

QUESTION 2
South African labour law protects people who qualify as ‘employees’ as defined in the Labour
Relations Act 66 of 1995. Any other person who performs work for, or on behalf of, another but is
not an employee is an independent contractor.

Define the concept of ‘employee’ and explain the differences between an employee and an
independent contractor.
(12)
YOUR ANSWER MUST NOT EXCEED 1 PAGE.

[TOTAL FOR QUESTION 2: 12 MARKS]

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QUESTION 3
Sello is a database developer at Tech Innovations. His job is to update and maintain (including
troubleshooting) Tech Innovations’ software development system. His contract states that he is an
“independent contractor”. The terms of his contract with Tech Innovations state that Sello will be
responsible for his own tax obligations, will not receive employee benefits like Unemployment
Insurance Fund (UIF) insurance contributions or paid leave, and is expected to use his own tools
and resources to complete his projects.
In practice, Tech Innovations sets Sello’s working hours and requires him to work from the
company’s Midrand office. In addition, the company has also provided Sello with the laptop he
currently uses to do the work. Sello can also not work for other companies and is assigned specific
tasks as part of ongoing projects in addition to his general duties to update and maintain the
company’s software development system. Furthermore, Tech Innovations also subjects Sello to the
same supervisory and performance management processes as other employees in the company.
Sello’s work is essential to the proper functioning of the entire Tech Innovations software
development ecosystem.
Sello is paid weekly remuneration that amounts to an annual sum total above the Basic Conditions
of Employment Act 75 of 1997 earnings threshold as determined by the Minister of Employment and
Labour.

3.1 With reference to the applicable legislation (including relevant Codes of Good Practice),
identify and explain the appropriate prescribed test for assessing whether a person in a
situation such as the above is an employee or an independent contractor.
(8)

YOUR ANSWER MUST NOT EXCEED 1 PAGE.

3.2 With reference to the test identified in your answer to Question 3.1 above, explain whether
Sello is an employee of Tech Innovations or not.
(8)

NB: You must apply the legal principles in your answer to Question 3.1 above to the facts.

YOUR ANSWER MUST NOT EXCEED 1 PAGE.

[TOTAL FOR QUESTION 3: 16 MARKS]

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QUESTION 4
Shanaynay joined SemiCom three months ago as a Junior Process Engineer and was immediately
placed on a four-month probation. Shanaynay graduated from the University of South Africa in 2023.
Early on into her work at SemiCom, she faced numerous hurdles in aligning with the highly
complicated demands and responsibilities of her role. Shanaynay struggled to perform to the
expected standards of SemiCom and was constantly being criticised for her shortcomings by her
immediate supervisors. At no point during her probationary period did Shanaynay receive
constructive criticism or mentorship. Instead, the immediate supervisors constantly and harshly
berated her performance in front of other people and kept telling her to improve or be dismissed.
The work of a Process Engineer is an extremely complex one. It requires potential candidates to
be given at least 12 months of training before becoming adept at it. Indeed, it is impossible for any
new Junior Process Engineer’s ability to perform the job to be properly assessed in less than 12
months.
Four months into her probation, without having received any formal performance appraisals or
actionable feedback, Shanaynay was told that her probation period had expired and that her
appointment would accordingly not be confirmed. Consequently, Shanaynay’s employment was
terminated by SemiCom and she is now without a job.

With reference to legislation, critically examine Shanaynay’s legal situation and explain
whether her period of probation was fair.
(12)

NB: You must apply the legal principles to the facts.

YOUR ANSWER MUST NOT EXCEED 1 PAGE.

[TOTAL FOR QUESTION 4: 12 MARKS]

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