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Nkamogeleng

Bame
62329723

LLW2601

QUESTION 01

1.1

● To render services to employer


● To work competently and diligently
● To obey lawful and reasonable instructions
● To serve the employer's interest and act in good faith

1.2

QUESTION 02

2.1.1 Overtime

Lisa can get a Maximum of 10 hours per week which may be increased to a maximum of 15
hours a week by a collective agreement. She can work overtime only by agreement, her
overtime has to be paid one-and-a-half times her normal pay or have time-off and an agreement
to work overtime may not be for more than a total of 12 hours.

2.1.2 Sick leave

Lisa may get 6 weeks paid leave every 3 year cycled worked. If absence from work for 2 or
more consecutive days or more than 2 occasion in an 8 week period, employer may request a
medical certificate. The certificate may be issued by a medical doctor or a person who is
registered with a professional council. A leave cycle is calculated as number of days an
employee would normally work during a 6 week cycle. If Lisa works five days a week, she would
work 30 days in 6 weeks, which would entitle her to 30 days sick leave in three years.

2.1.3 Regular night work allowance

Lisa must be given an allowance or a reduction in hours of work, and be provided with transport
between the employee's place of residence and the workplace. Night work is work that is
performed after 18h00 and before 6h00 the next day.

2.2
Lisa is entitled to four consecutive months' maternity leave, which may commence at any time
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 the Lisa's health or her unborn child. Lisa may not
work for six weeks after the birth of her child. If she 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 she must notify the employer in writing of the dates of the leave she intends to take.This is
unpaid leave. BCEA sets the minimum but the parties can agree to more favorable terms, e.g.
paid maternity leave. If she is not paid she may claim UIF.

2.3

● The control test


● The organization test
● The dominant impression test
● The economic capacity test
● The reality test

QUESTION 03

3.1

Termination as a result of insolvency of the employer.

A person or company can voluntarily apply for sequestration or liquidation or an applica-tion


can be brought by a creditor. The principles below relate to the effect of compulsory liquidation
or sequestration on the employment contract. Upon sequestration of the employer, the contract
of employment is sus-pended for a period of 45 days. During this period the employee does not
have to render services to the employer and the employee will not receive any

3.2

Unfair conduct by the employer relating to the promotion, demotion, probation or the
training of an employee or relating to the provision of benefits to an employee.
In this case it was unfair to demotion on Matshepo. Demotion can occur where an employee is
transferred to a lower level, receives less remuneration, loses benefits or experiences a loss in
status.

Question 04
Unfair discrimination.

A dismissal is automatically unfair if based on unfair discrimination against an employee, directly


or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or
social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political
opinion, culture, language, marital status or family responsibility. The only two reasons why a
dismissal on an arbitrary ground could be justified would be where it is done for reasons of an
inherent requirement of the particular job, or age if the employee has reached the normal or
agreed to retirement age for persons employed in that capacity.The case of Allpass v Mooikloof
Estates (Pty) Ltd t/a Mooikloof Equestrian Centre 66 provides an example of an automatically
unfair dismissal based on unfair discrimination. Here, the employee when requested by the
employer to disclose personal particulars a few days after starting the job, revealed that he had
a number of illnesses (including being HIV positive) and allergies (including being allergic to
penicillin). The employer dismissed and removed the employee from the premises. The
employer’s justification for his actions was that the employee had ‘misrepresented’ his state of
health during the interview. Two issues arose, namely, whether the employee was capable of
per-forming his duties and, if so, whether his dismissal was based on misconduct or his HIV
status.The employee claimed, firstly, that he was automatically unfairly dis-missed in terms of
the LRA due to his HIV status. Secondly, he had not made any misrepresentations during his
interview since he had a right to privacy and was, therefore, not obliged to disclose his HIV
status during the interview.Moreover, the employee argued that by removing him from the
premises, his dignity was impaired. DISMISSAL AnD AUTOMATICALLy UnFAIR DISMISSAL
189the employee has reached the normal or agreed-to retirement age for persons employed in
that capacity.The case of Allpass v Mooikloof Estates (Pty) Ltd t/a Mooikloof Equestrian Centre
66 provides an example of an automatically unfair dismissal based on unfair discrimination.
Here, the employee when requested by the employer to disclose personal particulars a few
days after starting the job, revealed that he had a number of illnesses (including being HIV
positive) and allergies (including being allergic to penicillin). The employer dismissed and
removed the employee from the premises. The employer’s justification for his actions was that
the employee had ‘misrepresented’ his state of health during the interview. Two issues arose,
namely, whether the employee was capable of per-forming his duties and, if so, whether his
dismissal was based on misconduct or his HIV status.The employee claimed, firstly, that he was
automatically unfairly dismissed in terms of the LRA due to his HIV status. Secondly, he had not
made any misrepresentations during his interview since he had a right to privacy and was,
therefore, not obliged to disclose his HIV status during the interview. Moreover, the employee
argued that by removing him from the premises, his dignity was impaired. The employer argued
that the employee was severely ill and would not be able to do his work as stableyard manager,
trainer and riding instructor. The evidence, however, showed that the employee’s HIV infection
was under control and that he was physically fit to do the job.The court found that the
employer’s opinion that the employee was ill was based on a general stereotyping of all people
with HIV. This affected the employee’s dignity and resulted in the unfair condemnation of the
employee to ‘economic death’.The employer further argued that the ability to inject horses with
peni-cillin was an ‘inherent requirement of the job,’ and that the employee was unable to do this
task as a result if his allergy. The court held this to be a ‘thin veil’ to disguise the real reason for
the dismissal, namely, the employee’s HIV status. It was found that the employee was
automatically unfairly dismissed.

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