LLAW 221

Second Opportunity Examination Memorandum

Question 1 [2 x 10 = 20]

1.1 B 1.6 A
1.2 B 1.7 C
1.3 B 1.8 D
1.4 D 1.9 C
1.5 A 1.10 B
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Question 2 [20]

2.1 (2)
True, (1 mark)
Section 23 of the Labour Relations Act provides that the collective agreements concluded with a
bargaining council takes precedence over contracts of employment and BCEA (except for core
rights). (1 mark)
2.2 (2)
False, (1 mark)
There is a rebuttable presumption in terms of section 200A of the Labour Relations Act, that is, the onus
of prove rests on the employer to prove that the person is an independent contractor. If the employer
fails to discharge such onus, that person will be deemed to be an employee which ultimately defeat the
ulterior motives of employers to circumvent the protection extended to employees by labour
legislation. (1 mark)
2.3 (2)
False, (1 mark)
It is only the death of the employee that always terminates the contract whereas if the employer dies,
the contract will survive his/her death (in case services are not rendered to him/her personally). (1 mark)
2.4 (2)
False, (1 mark)
Both are employees and are protected by labour laws (section 198A and C of the Labour Relations
Act) (1 mark)

LLAW 221: Paper 1 | Exam 2nd Opp | Full-time 1/5

2.5 (2)
True (1 mark)
Anyone of the following (1 mark):
• Two types of suspension under in s 186(2):
• As a penalty after being found guilty of misconduct
• During the course of a disciplinary investigation into alleged misconduct
• There must be a good reason for suspension and procedure essential for fairness
• Suspension can be unfair when it is disproportionate to the misconduct – i.e. too long
• Suspension unfair when misconduct not properly proven or not serious enough
2.6 (2)
False (1 mark)
Anyone of the following (1 mark)
• Notice has to be given as soon as the employer contemplates to retrench employees
• The notice itself must contain the necessary information to allow the parties to
properly consult and make suggestions e.g. reasons for retrenchment; the number of employees
affected; the selction criteria; severance packages and possibility of future re-employment.
• Notice must be in writing
2.7 (2)
False (1 mark).
Parliament is entitled to enact national legislation to regulate collective bargaining according to section
23(5) of the Constitution. This has removed the duty to compel an employer to bargain – it is a voluntary
action. There is a duty to bargain (in good faith) and not a right to bargain. This duty to bargain is now a
matter of mutual interest a not right. (Anything along these lines = 1 mark)
2.8 (2)
True (1 mark)
The employees through their trade union representatives did not follow the correct procedure entirely.
An employer must be given 48 hours’ notice of a strike; in this instance the strike can only commence
on Saturday morning. (1 mark)
2.9 (2)
False (1 mark)
He can refer the matter to the CCMA in 30 days of the date of his dismissal. (1 mark)
2.10 (2)
False (1 mark)
She works more than 24 hours a month, therefore she is entitled to annual leave. (1 mark)
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Question 3 [20]

3.1 (5)
A contract of employment is an agreement (1 mark) between two parties (1 mark) in terms of which one
of the parties (employee) undertakes to place his or her personal services at the disposal of the other
party (the employer) (1 mark) in exchange for remuneration, (1 mark) and which entitles the employer
to define the employee’s duties and to control the manner in which the employee discharges
them. (1 mark)

LLAW 221: Paper 1 | Exam 2nd Opp | Full-time 2/5

3.2 (8)
EMPLOYEE
Any 4 of these = 4 marks
• Enter and remain in service
• Maintain reasonable efficiency
• Further the employers business interests
• Remain obedient and respectful
• Refrain from misconduct.

EMPLOYER:
• Receive employee into service (Duty to provide work) (1 mark)
• Remunerate employee (1 mark)
• Provide safe place of work (1 mark)
• Duty of fair dealing (1 mark)
3.3 (7)
This will be a fixed term contract (1 mark)
• At the end of the contract period (1 mark)
• Termination by agreement (1 mark)
• Fair dismissal (1 mark)
• resignation (1 mark)
• Termination by insolvency (1 mark)
• Termination upon a breach of contract (1 mark)
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Question 4 [20]

4.1
4.1.1 (10)
• The essence of a fair procedure is that an employee has the right to defend him or
herself. (1 mark)
• Implicit in this right is that the employer must conduct a disciplinary hearing. (1 mark)
• Item 4 of the Code (1 mark) sets out the guidelines for procedural fairness of dismissal
based on misconduct, namely: the disciplinary hearing must be held without unnecessary
delay and the employee is given an opportunity to state a case in response to the
allegations. (1 mark)
• The employee must be told of the allegation(s) in a language he or she understands,
allowed sufficient time to prepare the response, and be given assistance if
desired. (1 mark)
• If the employee is to be dismissed, he or she should be given a reason for the dismissal
and reminded of any rights he or she may have, or any dispute resolution procedure in
terms of the LRA (1 mark)

LLAW 221: Paper 1 | Exam 2nd Opp | Full-time 3/5

 • Note that Item 4(4) (1 mark) lays down the instances that the employer may dispense with
a disciplinary enquiry in “exceptional circumstances” if the employer cannot be reasonably
expected to comply with this requirement, namely in the case of crisis-zone and
waiver. (1 mark)
• Finally, section 188A of the Labour Relations Act 66 of 1995 (1 mark) introduced a new
process known as pre-arbitration procedure instead of a disciplinary enquiry about alleged
misconduct of the employee. (1 mark)
4.1.2 (3)
• Yes (1 mark)
• Any 1 of the following
o Vicarious Liability is the legal liability imposed on employer for the wrongs or crimes
committed by the employee (sometimes an independent contractor or
agent). (1 mark)
o An employer is vicariously liable for wrongs committed by his employees when he
has authorized or ratified them or when the wrong/delict was committed in the course
of the employees’ work. (1 mark)
• Thus, negligent driving by someone employed as a driver is a wrong committed in the
course of his employment. (1 mark)
4.2
4.2.1 What is the name of this type of clause? (1)
Restraint of trade. (1 mark)

4.2.2 What is the purpose of this type of clause? (2)

To protect the business interests of the previous employer against additional competition (1 mark)
and preventing Rebecca from using the trade secrets of her previous employer against him/
her. (1 mark)
4.3 (4)
With direct discrimination, a person is treated differently because of a certain characteristic (1 mark),
for example they are female (1 mark for the example)
Whereas with indirect discrimination, a criteria which appears to be neutral, negatively affects a certain
group disproportionately (1 mark), for example against Muslims or women. (1 mark for the example)
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Question 5 [20]

5.1 (1)
Section 18 (½ mark) everyone has the right to freedom of association. (½ mark)
5.2 (1)
Section 4 of the LRA (½ mark)– Every employee has the right to (a) participate in forming a trade union
or federation of trade unions; and (b) to join a trade union subject to the constitution (of the trade
union). (½ mark)

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5.3
5.3.1 (10)
There are 5 organisational rights in sections 12-16 of the LRA that are available to trade unions,
they enable unions to function within an employer’s workplace.
Note to marker: 1 mark for the correct provision, and 1 mark for the correct wording of the
provision = 10 marks
(a) Access to the workplace (section 12 of the Act)
(b) Deduction of trade union subscription or levies (section 13 of the Act)
(c) Trade union representatives (section 14 of the Act)
(d) Leave for office bearers (section 15 of the Act)
(e) Disclosure of information (section 16).
5.3.2 (5)
• They can be acquired through a collective agreement or a bargaining council. (1 mark)
• Section 21 requires a union to be representative in order to enforce organizational rights. (1 mark)
• Section 12, 13 and 15 organizational rights require a trade union to be sufficiently representative
(1 mark), there is no number as to what is sufficiently representative (equally no definition in the
LRA), normally a Commissioner will decide this, or a union can enter into a collective agreement
with an employer on this point. (1 mark)
• Section 14 and 16 rights are available to a majority union, have a representation of
50%+1. (1 mark)
5.4 (2)
Our Textiles employs 100 employees: 60 employees are members of TUU, 35 are members of BTU and
the remaining 5 employees are not affiliated with any trade union. For this purpose, TUU is the majority
trade union of Our Textile and therefore sufficiently representative. (2 marks)

TOTAL: 100

LLAW 221: Paper 1 | Exam 2nd Opp | Full-time 5/5