ELRM2624 Test 2 Revision Class 3 Sep 2024

Question

THESE QUESTIONS ARE MERELY TO ACQUINT YOU WITH THE PRACTICAL APPLICATION AND TO GET AN IDEA HOW THEORETICAL QUESTIONS CAN BE ASKED. YOU STILL NEED TO STUDY ALL THE WORK IN UNIT 3 & 4
Question 1

Mr. John who is a supervisor at ABC Traders received a report from the security guards that when they checked the load on an outgoing delivery truck, they had discovered more pallets of cans than the number of specified on the invoice. The truck had been loaded by the workers in the despatch department, from where the driver had proceeded to the gate.

Mr. John immediately called in the driver and confronted him with the evidence. Warning him that this was a very serious matter, without any further information he instructed the driver to make himself available for a disciplinary hearing the following morning 9am in the boardroom. This left the driver confused as to what he did wrong. Due to time pressures Mr. John informed the truck driver that only he is the only one allowed at the hearing. With that Mr. John went off to report the incident to his superior, the production manager, who was to chair the hearing. Mr. John provided him with all the details of the case.

The next day the hearing commenced with Mr. John’s allegation that the driver had intended to take the pallets and sell them privately. The driver responded that he knew nothing about the pallets and that they must have been placed there by mistake. Nonetheless, he was informed by the chairperson that, even if this were so, he was still guilty because it was his (the driver’s) duty to count the pallets, and to ensure that the correct number, in terms of the invoice, were sent out.

The hearing did not last long because, according to both Mr. John and the chairperson, it was cut and dried case and the driver did not know how to respond to the allegations made. The driver was found guilty and because the misappropriation of property was listed as a dismissible offence in the disciplinary code, he was summarily dismissed. In Mr. John’s words, “discipline had won the day”. When the driver indicated that English is not his home language and could not understand the technical terms used during the disciplinary hearing, the chairperson informed him that the decision was already made.

1.1 There are certain requirements that needs to be met for a disciplinary hearing to be considered fair. List the requirements which was not adhered to within this case scenario (9)
1.2 The charge of misappropriation of property as a misconduct in the above case scenario is wrong. Identify (1 mark) and discuss (6 marks) the correct type of misconduct the truck driver should have been charged with.
1.3 List the elements of how substantive fairness is evaluated as indicated in the Code of Good Practice: Dismissal (6)
1.4 Apart from dismissing the employee, other forms of discipline could have been considered such as warnings. Considering the facts of the matter, name and explain the type of warning that would have been appropriate in this case scenario? (3)
QUESTION 2
Read the below contract of employment and answer the questions that follow:
ABC Traders
Tell: 021 679 7769
Cape Town
12 January 2018
Dear Mr. Sam James

RE: APPOINTMENT IN POSITION AS SALES SUPERVISOR
We have the please in offering you the above-mentioned position at our company starting 1 January 2023.
The commencing salary will be calculated per annum.
You will be expected to work overtime as and when required.
Our company is subject to a bargaining council agreement and all conditions stipulated in that agreement pertain.
Please note that you will be expected to acquaint yourself with the company rules and to obey these at all times.
We look forward to working with you and to a mutually beneficial relationship.
Yours faithfully
Director of Sales: John Jenkens

2.1 Regardless of the contents of a contract, common law outlines basic duties afforded to employers and employees when entering into an employment relationship. List the duties at common law of employers (5). List the duties at common law of employees (4).
2.2 List any 3 information the above contract of employment lacks as required by the Basic Conditions of Employment Act 75 of 1997 (3)
2.3 It was established after signing the contract that Sam James works a five-day week: 9 hours per
day, 07:00am-16:00pm Sam is asked to work until 18:00pm today. Sam’s normal wage per hour is R30. Calculate how much Sam will be paid for overtime TODAY ONLY
2.4 Sam worked 40 hours in overtime for the month of January. Two (2) of the overtime hours occurred during public holidays hours which was not part of his regular normal working day calculate how much overtime Sam can expect to be paid for the month of January.
2.5 There are various tests the courts have used to distinguish between an employer and independent contractor. Explain the factors present in the reality test. (7)
QUESTION 3

3.1 Chapter 4 of the Labour Relations Act outlines instances when procedures does not have to be followed to attain a protected strike. Name these three instances:
3.2 Name 5 responsibilities/functions of the CCMA as outlined in the Labour Relations Act
3.3 In the Employment Equity Act, what is meant with a designated employer? (3)
3.4 Explain the provisions outlined in the Employment Equity Act regarding psychometric testing. (5)
File

Answer 1

I'll provide you with the answers to the questions based on the provided case scenario and legal concepts.

QUESTION 1

1.1 Requirements Not Adhered To in the Disciplinary Hearing (9)

1. Right to Representation: The driver was not allowed to have a representative or someone to support him during the hearing, which is a critical aspect for a fair process.

2. Notice of Hearing: The driver was not provided sufficient notice about the charges or details surrounding the hearing, leaving him unprepared to defend himself.

3. Openness and Transparency: The driver did not understand the technical language used in the hearing, which affected his ability to respond to the allegations effectively.

4. Opportunity to Present a Defense: The driver was not given a proper opportunity to present his side of the story or to explain the circumstances.

5. Independence of the Chairperson: The chairperson's prior knowledge of the case may have biased the hearing, compromising impartial judgment.

6. Recording of the Hearing: There was no evidence indicated that minutes or a transcript of the hearing were taken for record-keeping.

7. Proper Investigation Prior to Hearing: No proper investigation was conducted to ascertain the facts before the hearing was set.

8. Right to Appeal: The driver was not informed of any right to appeal the decision made at the hearing.

9. Proportionality of the Charge: The charge may not have aligned with the gravity of the alleged offense, as it assumed intention without clear evidence of wrongdoing.

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1.2 Correct Type of Misconduct (1 mark, Discussion 6 marks)

• Correct Misconduct Charge: The driver should have been charged with "negligence" or "failure to follow procedures."

• Discussion:

  1. Negligence Definition: Negligence refers to the failure to take proper care in doing something, which in this case pertains to the driver's duty to check the loaded pallets.
  2. Duty of Care: The driver has a responsibility (duty of care) to count and verify the goods loaded onto the truck against the invoice.
  3. Context of the Incident: The presence of extra pallets constitutes a failure to follow proper procedure rather than misappropriation since there was no evidence of intent to steal.
  4. Burden of Proof: Unlike misappropriation, negligence can be more easily evidenced from actions taken (or not taken) by the driver in overseeing the loading process.
  5. Consequences of Negligence: If found guilty of negligence, appropriate disciplinary action like a warning or suspension might have sufficed instead of immediate dismissal.
  6. Impact on Relationships: Charged with negligence allows the company to initiate improvement processes and training for adherence to procedures rather than severing the employment relationship.

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1.3 Elements of Substantive Fairness (6)

1. Valid and Fair Reason for Dismissal: There must be a genuine reason that justifies the dismissal.
2. Investigation Before Dismissal: An appropriate investigation must be conducted before reaching a decision to dismiss.
3. Employee’s Version Considered: The employee must be allowed to present their side of the story.
4. Consistent Application of Rules: Similar cases should be treated in a consistent manner with respect to disciplinary actions.
5. Gradation of Disciplinary Action: Employers must consider lesser forms of discipline before resorting to dismissal.
6. Legitimate Process: The dismissal must result from a transparent and legitimate procedure, respecting the principles of fairness.

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1.4 Appropriate Warning (3)

• Type of Warning: Final written warning

• Explanation: Given the circumstances:

  1. Nature of Offense: The incident was likely a result of oversight rather than malice or intent to defraud.
  2. Opportunity for Improvement: A final written warning would provide the driver an opportunity to improve his adherence to protocols.
  3. Severity of Situation: A warning fosters a disciplinary pathway rather than severance, keeping the relationship intact while reinforcing the seriousness of stringent compliance requirements.

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QUESTION 2

2.1 Duties at Common Law

• Employer Duties (5):

  1. Provide Work: Ensure that there is work available for the employee.
  2. Payment of Salary: Pay the agreed wage in a timely manner.
  3. Safe Working Environment: Offer a safe place and condition of work.
  4. Supervision and Support: Provide reasonable supervision and support the employee’s job role.
  5. Adherence to Employment Laws: Abide by all applicable laws in the employment relationship.

• Employee Duties (4):

  1. Perform Work Diligently: Carry out the work as required in a competent manner.
  2. Adhere to Company Policies: Follow the company's rules and procedures.
  3. Act in Good Faith: Act in the employer's interest and not disclose confidential information.
  4. Report Issues: Inform the employer about issues that may affect the workplace environment or other employees.

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2.2 Missing Information from Contract (3)

1. Job Description: Detailed explanation of job responsibilities and performance expectations.
2. Salary Structure: Specifics on remuneration such as paydays, commission structures, and bonuses.
3. Notice Period: Information on terms of termination and notice period required by both parties.

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2.3 Overtime Payment Calculation (3 points)

• Normal Hours: 8 hours (from 07:00 to 16:00)
• Overtime Hours Worked Today: 2 hours (from 16:00 to 18:00)
• Normal Hourly Wage: R30
• Overtime Rate: R30 x 1.5 = R45

Payment Calculation:

• Total Overtime Payment: 2 hours x R45 = R90

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2.4 Overtime Payment for January (5)

Regular Overtime Hours: 40 hours

• Regular Pay Rate: R30

1. Normal Overtime Hours: 38 hours x R45 = R1710
2. Public Holiday Overtime: 2 hours at public holiday rate (R30 x 2 x 2) = R120

Total Overtime for January:

• Total: R1710 + R120 = R1830

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2.5 Reality Test Factors (7)

1. Control: Assessment of the degree of control exerted by the employer over the worker's performance.
2. Integration: Whether the worker’s services are integrated into the business operations or if they are just an independent service.
3. Risk and Profit: Whether the worker undertakes commercial risk and has the potential to make a profit or incur a loss.
4. Tools and Equipment: Who provides the tools or equipment necessary for the job?
5. Time of Work: Whether the worker has set hours or determines their own schedule.
6. Nature of Engagement: The nature of the worker's contractual arrangement, whether it is permanent or project-based.
7. Independence: The level of autonomy the worker has in performing their job responsibilities.

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QUESTION 3

3.1 Instances Not Necessitating Procedures for Protected Strike (3)

1. Lack of Bargaining: Where the employer refuses to negotiate with the employees.
2. Immediate Danger to Health or Safety: For a situation posing an immediate threat to health or safety.
3. No Recourse to Bargaining: If the employer does not comply with a previous agreement regarding bargaining.

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3.2 Responsibilities/Functions of the CCMA (5)

1. Mediation: Facilitate mediation between parties in disputes.
2. Arbitration: Conduct arbitration proceedings to resolve disputes.
3. Dispute Resolution: Offer dispute resolution services for collective and individual labor disputes.
4. Training and Education: Provide training and education on labor law and dispute resolution.
5. Registration of Trade Unions: Maintain registers for the trade unions and employer organizations.

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3.3 Designated Employer Definition (3)

• A designated employer refers to:
  1. Size Criteria: Employers with a certain number of employees as defined by the Employment Equity Act.
  2. Sectoral Requirements: Employers in sectors where provisions apply to employment equity goals and affirmative action.
  3. Obligations: Such employers must comply with the report and plan requirements outlined in the Act.

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3.4 Provisions on Psychometric Testing (5)

1. Fairness: Tests must be fair, equitable, and designed to not unfairly discriminate against any group of candidates.
2. Validity: Psychometric tests must measure aptitude or potential accurately.
3. Reliability: Tests should produce consistent results over time and across different conditions.
4. Purpose Limitation: The purpose of the testing must be clear and relevant to the specific job requirements.
5. Informed Consent: Candidates must be informed about the nature of testing and provide consent before partaking in such assessments.

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Feel free to ask for any further clarifications or assistance!