TOPIC 1

Question 1

Give a brief overview of the 3 prescribed cases

Answer 1

Pretorius and Another v Transport Pension Fund and Others (subsidiarity)
Old Mutual Ltd and others v Moyo & another (use of contractual remedy instead of labor legislation; relationship between contract law and legislation; contractual remedies
Baloyi v Public Protector and Others(continued recognition of contractual remedies despite labour legislation)

Question 2

What is labour law

Answer 2

Branch of law that relates to the regulation of employment relationships

Question 3

What does the individual dimension refer to

Answer 3

Employer and individual employee

Question 4

What does the collective dimension refer to

Answer 4

Employer organisations and trade unions

Question 5

Why is labour law important for the individual employee

Answer 5

self fulfilment, survival and access to societal possesses like education

Question 6

Why is labour law important for the employers

Answer 6

So that they have smooth and continued production of their services(no interruptions)

Question 7

Why is labour law important for the society

Answer 7

Economic development, growth, equality and justice

Question 8

What are the 3 fundamental challenges concerning labour law

Answer 8

-Conflict between employers and employees (different expectations)
-Power deferential and conflict is exasperated by this
-Traditional common law regulation (law of contract)

Question 9

Elaborate on the traditional common law regulation (law of contract) which is a fundamental challenge concerning labour law

Answer 9

Some issues concerning the traditional common law regulation include: no bargaining power, termination on notice which creates insecurity because if there is no breach of contract the employee has no option of recourse, collective concerns are not recognised, ordinary civil courts do not recognise the labour relations dynamic

Question 10

What is the main aim of labour law

Answer 10

To enforce fairness into the individual employment relationship

Question 11

What are the 5 fairness mechanisms legislation uses to enforce fairness onto the employment relationship

Answer 11

1. Legislation: directly and indirectly
2. Protection against unfair dismissal (LRA)
3. Protection against unfair labour practices (LRA)
4. Protection against unfair discrimination (Employment Equity Act)
5. Tailor made fairness dispute resolution institutions (LRA)

Question 12

Elaborate briefly on each of the 5 fairness mechanisms

Answer 12

1. Legislation: ensures fair terms and conditions of employment
   Directly: Basic Conditions of employments Act (BCEA) which gives the minimum an employer must give the employee, National Minimum Wages Act (NMWA)-cant go below this.
   Indirectly: Promotion of collective bargaining(LRA), freedom of association recognised which is protected by the LRA, as well as trade union rights and the right to strike (Constitution), collective agreement takes precedent over individual contract, the LRA also provides organisational rights to trade unions: trade unions bargains with employer or become entitled to disclose information
2. Protection against unfair dismissal (LRA): Dismissal must be in line with the contract but must also be fair- every employee has the right to not be unfairly dismissed and even a lawful dismissal can be unfair. There must be a good reason and procedural fairness. If an employee resigns because the employer made employment intolerable it is regarded as unfair dismissal.
3. Protection against unfair labour practices (EEA): s23-everyone has right to fair labour practises. S186(2) of LRA lists the unfair labour practises
4. Protection against unfair discrimination (EEA): Prohibits unfair discrimination along with s9 of the Con.
5. Taylor made fairness dispute resolution institutions(LRA): It must be quick and efficient and makes a distinction between disputes of right and disputes of interest. Disputes of right is where the employee already has such a right and enforces it and disputes of interest is where there is no existing rights but employee wants to create a new right.

Question 13

Describe the process of collective bargaining through trade unions

Answer 13

Collective labour law allows for these processes: the trade union goes to the employer and makes demands, then go into process of collective bargaining.
A collective agreement is also a more important source of the terms and conditions of employment than the individual contract of employment. (S 23(3) of LRA)

Question 14

Give an example of dispute of interest and dispute of right

Answer 14

Dispute of right: bargaining councils, CCMA
Dispute of interest: collective bargaining

Question 15

Name 5 sources of labour law

Answer 15

-ILO(International Labour Organisation)
-Constitution
-Legislation
-Collective agreements
-Contract

Question 16

What are important rights in the Constitution with relation to labour law

Answer 16

S(9)- Equality
S(23)- Labour relations
S(33)- Fair administrative action. This is a broad right to fair labour practises and collective labour law rights like freedom of association- to participate in trade union, strike etc.

Question 17

The Constitution has a direct and an indirect influence. Elaborate

Answer 17

Direct influence: Where there is direct reliance on a constitutional right.
Indirect influence: Common law is applied. If legislation doesn’t adequately give effect to the right common law is developed.

Question 18

What is the relationship of the Constitution with legislation

Answer 18

Legislation interprets and often limits constitutional rights.

Question 19

Explain the principle of subsidiarity where legislation justifiably limits rights

Answer 19

Subsidiarity is when legislation gives effect to a right contained in the BOR, a party may not rely on a right in the BOR unless they challenge the constitutionality of legislation. They have to then find a remedy in subordinate legislation. Pretorius stated that where the Constitution does not require legislation to be enacted it is possible to rely directly on the con without showing that applicable legislation is deficient.

Question 20

When will disputes rely on principles in legislation

Answer 20

Until the constitutionality thereof is challenged. Employment Equity Act (EEA) gives effect to s9 and LRA gives effect to s23.

Question 21

When is the common law developed with relation to the Constitution

Answer 21

Common law is developed in light of the Con when legislation does not adequately protect a right.
In Murray case: SCA said that in light of the Con there is a common law duty of fair dealing on every employer- means there is a common law right to fairness in contrast with a lawful approach= if employer does something unfair it can bring forth an unfairness case ito breach of contract or fairness remedy can be brought from labour legislation.

Question 22

Why are there so many CC cases

Answer 22

In the Harwin UCT case, the CC accepted that when the dispute is about interpretation or application of legislation giving effect to a Con right, then a constitutional matter is raised.

Question 23

Give the facts, issue, ratio(courts reasoning) and outcome of the Pretorius case (Pretorius and another v Transport Pension Fund and others)

Answer 23

Facts:
-Group of pensioners who previously worked for Transnet filed a claim against the Transnet pension fund
-Claim based on a promise made in 1989 that they would continue to receive the same pension benefits after Transnet became a commercial entity
-They wanted to enforce this claim in 3 possible ways:
1. As a contract
2. As an enforceable state promise
3. As an unfair labour practice under the Con
The court heard the 3 objections made to these claims:
1st was that the contract claim was vague and embarrassing
2nd and 3rd was that the claims didn’t provide a valid legal basis and were flawed in law
-The High Court agreed to the objections and the claims were dismissed
-The pensioners then appealed to the CC.
Issue: Can pensioners rely on Con right to fair labour practices even if they are no longer employees? And can they bypass legislation with the Con?
Ratio(Courts reasoning):
-Court considered whether pensioners needed to prove that they were still in an employer-employee relationship in order to claim fair labour practices.
-Court recognised that even people who are not in formal employment must have protection under S23(1) of the Con.
-The respondents argued that pensioners should rely on existing legislation like LRA instead of Con.
-The court viewed the case as complex and that the legal position was uncertain so the court decided that the claim regarding unfair labour practices should go to trial.
Outcome: The CC allowed the appeal and the unfair labour practice claim could go to trial.

Question 24

Give the facts, issue, ratio (courts reasoning) and outcome of the Moyo case (Old Mutual Ltd & others v Moyo & another)

Answer 24

Facts:
-Peter Moyo was the Ceo of Old Mutual, earning R35,5 M in 2018.
-He was also the shareholder and director of another company NMT, which owed Old Mutual R65,9 M
-NMT received a payment from an external company but did not use it to pay Old Mutual, they just declared an ordinary dividend from which Moyo received R28M
-As a result of this Old Mutual suspended Moyo and later terminated his employment, giving him 6 month notice per his contract
-Moyo wanted his job back and applied for an urgent interdict
Issue:
-Old Mutual argued that according to the LRA they had a fair reason to terminate his employment without notice but they chose to follow the contract and terminated his employment with 6 months’ notice and payed him for that period
-He argued that he wasn’t given a hearing before his dismissal which was unfair
-Questioned whether the concept of fairness needed to be considered
-Moyo argues that Old Mutual didn’t follow the correct disciplinary procedures according to the contract
-Question whether specific performance he sought should be granted
Ratio (courts reasoning):
-Moyo decided to seek a contractual remedy rather than claiming unfair dismissal under the LRA, he avoided relying on rights in the LRA.
-Moyo did not establish a specific legal basis for fairness under common law
-Court fond that fairness is not an inherent right under employment contracts unless specifically stated, and he didn’t successfully argue that this was the case
-Court noted that specific performance (to be reinstated) is not typically granted in cases of unfair dismissal
-Could usually only claim damages
-Court said that forcing an employer to keep an employee they no longer tust is not advisable, the lack of trust made this unrealistic
-Moyo failed to show that he had a realistic chance to be reinstated
Outcome:
The court found that the lower court who granted Moyo an interim interdict for reinstatement made an error, so his request to be reinstated was denied.

Question 25

Give the facts, issue, ratio (courts reasoning) and outcome of the Baloyi case (Baloyi v Public Protector and Others)

Answer 25

Facts:
-Baloyi was Chief Operating Officer at the office of the Public Protector on a 5 year fixed contract which included a 6 month probation period (trial period)
-After the probation period ended Moyo was asked to submit representations regarding her performance
-She then received a letter stating that her employment would not be confirmed and her contract will be terminated, the reason being she is not suitable for the role of COO.
-She challenged the termination to the High Court claiming that it was a breach of contract
Ratio (courts reasoning):
-High Court dismissed her application claiming they did not have jurisdiction over the dispute and it should be handled by the Labour Court under the LRA.
-She then appealed to the CC.
-Court said that jurisdiction should be determined based on applicants pleadings not the likeliness of success
-She chose to make a breach of contract claim and not a claim on unfair dismissal under the LRA which was also an option
-Court said that contractual rights exist independently of the LRA, dispute doesn’t fall exclusively under labour law if it’s related to employment.
-High court also has authority to hear contractual disputes.
Outcome:
-CC found that High Court made an error in dismissing her case on the grounds that it was purely a labour dispute
-Appeal was upheld with costs and the case was sent back to the High Court for a new trial

Question 26

What was the significance of the Moyo case

Answer 26

Its the first time the CC recognised that employees can choose whether or not they want to pursue a claim based on breach of contract or under labour law
-Established High Court has jurisdiction over contractual disputes involving employment contracts.

Question 27

Labour law is largely legislative in nature but contract is still important, why?

Answer 27

-Contract makes you an employee for the purpose of legislation
-It is an important source of terms and conditions
-employee can also retain the choice to challenge employer conduct based on common law (breach of contract) or legislation (unfair labour practices)

Question 28

In what ways can an employee choose to approach a dispute

Answer 28

1. Labour legislation
2. Claim in terms of contractual rights (labour legislation or breach of contract)

Question 29

What plays a role when choosing approach:

Answer 29

1. Making a strategic choice
2. Contract of employment can only be relied on when there is a breach of contract which requires a right to be contained in the contract
3. Ito legislation may only be able to challenge dismissal if unfair in legislation
4. Prescription period plays a role which is the time wherein the claim must be made: in unfair dismissal the prescription period is 30 days but in a breach of contract claim there is more time.

Question 30

What is meant by “terms and conditions of employment”?

Answer 30

-What is your job description, pay, benefits, leaves, times, shifts
-It is derived from various sources: terms agreed upon by parties, common law implied terms, a statute, or collective agreement
-Sources will apply depending on the given employment relationship like the type of employee and the nature of the work

Question 31

What are the sources of the terms and conditions and their interactions

Answer 31

1. Contract (common law): express terms, terms implied by common law, terms of individual employment contract: CAN VARY BY MEANS OF A COLLECTIVE AGREEMENT CONCLUDED BETWEEN TRADE UNION AND EMPLOYER, collective agreement is more important than the individual employment agreement
2. Legislation: provides a “floor of rights” under NMWA and BCEA like hours, rest periods, leave etc
   -Imposes a limitation on freedom of contract

Question 32

What are the interactions between common law, legislation and collective bargaining in setting terms and conditions

Answer 32

-Bargaining is a concern of legislation but not common law
-Bargaining power can be of no consequence to common law

Question 33

Essentialia (key elements) of an employment contract

Answer 33

1. Rendering of personal services
2. Payment of remuneration
3. Element of control on the part of the employer