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)
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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.
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Notice of Hearing: The driver was not provided sufficient notice about the charges or details surrounding the hearing, leaving him unprepared to defend himself.
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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.
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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.
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Independence of the Chairperson: The chairperson's prior knowledge of the case may have biased the hearing, compromising impartial judgment.
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Recording of the Hearing: There was no evidence indicated that minutes or a transcript of the hearing were taken for record-keeping.
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Proper Investigation Prior to Hearing: No proper investigation was conducted to ascertain the facts before the hearing was set.
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Right to Appeal: The driver was not informed of any right to appeal the decision made at the hearing.
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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.
1.2 Correct Type of Misconduct (1 mark, Discussion 6 marks)
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Correct Misconduct Charge: The driver should have been charged with "negligence" or "failure to follow procedures."
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Discussion:
- 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.
- Duty of Care: The driver has a responsibility (duty of care) to count and verify the goods loaded onto the truck against the invoice.
- 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.
- 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.
- Consequences of Negligence: If found guilty of negligence, appropriate disciplinary action like a warning or suspension might have sufficed instead of immediate dismissal.
- 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.
1.3 Elements of Substantive Fairness (6)
- Valid and Fair Reason for Dismissal: There must be a genuine reason that justifies the dismissal.
- Investigation Before Dismissal: An appropriate investigation must be conducted before reaching a decision to dismiss.
- Employee’s Version Considered: The employee must be allowed to present their side of the story.
- Consistent Application of Rules: Similar cases should be treated in a consistent manner with respect to disciplinary actions.
- Gradation of Disciplinary Action: Employers must consider lesser forms of discipline before resorting to dismissal.
- Legitimate Process: The dismissal must result from a transparent and legitimate procedure, respecting the principles of fairness.
1.4 Appropriate Warning (3)
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Type of Warning: Final written warning
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Explanation: Given the circumstances:
- Nature of Offense: The incident was likely a result of oversight rather than malice or intent to defraud.
- Opportunity for Improvement: A final written warning would provide the driver an opportunity to improve his adherence to protocols.
- Severity of Situation: A warning fosters a disciplinary pathway rather than severance, keeping the relationship intact while reinforcing the seriousness of stringent compliance requirements.
QUESTION 2
2.1 Duties at Common Law
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Employer Duties (5):
- Provide Work: Ensure that there is work available for the employee.
- Payment of Salary: Pay the agreed wage in a timely manner.
- Safe Working Environment: Offer a safe place and condition of work.
- Supervision and Support: Provide reasonable supervision and support the employee’s job role.
- Adherence to Employment Laws: Abide by all applicable laws in the employment relationship.
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Employee Duties (4):
- Perform Work Diligently: Carry out the work as required in a competent manner.
- Adhere to Company Policies: Follow the company's rules and procedures.
- Act in Good Faith: Act in the employer's interest and not disclose confidential information.
- Report Issues: Inform the employer about issues that may affect the workplace environment or other employees.
2.2 Missing Information from Contract (3)
- Job Description: Detailed explanation of job responsibilities and performance expectations.
- Salary Structure: Specifics on remuneration such as paydays, commission structures, and bonuses.
- Notice Period: Information on terms of termination and notice period required by both parties.
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
2.4 Overtime Payment for January (5)
Regular Overtime Hours: 40 hours
- Regular Pay Rate: R30
- Normal Overtime Hours: 38 hours x R45 = R1710
- Public Holiday Overtime: 2 hours at public holiday rate (R30 x 2 x 2) = R120
Total Overtime for January:
- Total: R1710 + R120 = R1830
2.5 Reality Test Factors (7)
- Control: Assessment of the degree of control exerted by the employer over the worker's performance.
- Integration: Whether the worker’s services are integrated into the business operations or if they are just an independent service.
- Risk and Profit: Whether the worker undertakes commercial risk and has the potential to make a profit or incur a loss.
- Tools and Equipment: Who provides the tools or equipment necessary for the job?
- Time of Work: Whether the worker has set hours or determines their own schedule.
- Nature of Engagement: The nature of the worker's contractual arrangement, whether it is permanent or project-based.
- Independence: The level of autonomy the worker has in performing their job responsibilities.
QUESTION 3
3.1 Instances Not Necessitating Procedures for Protected Strike (3)
- Lack of Bargaining: Where the employer refuses to negotiate with the employees.
- Immediate Danger to Health or Safety: For a situation posing an immediate threat to health or safety.
- No Recourse to Bargaining: If the employer does not comply with a previous agreement regarding bargaining.
3.2 Responsibilities/Functions of the CCMA (5)
- Mediation: Facilitate mediation between parties in disputes.
- Arbitration: Conduct arbitration proceedings to resolve disputes.
- Dispute Resolution: Offer dispute resolution services for collective and individual labor disputes.
- Training and Education: Provide training and education on labor law and dispute resolution.
- Registration of Trade Unions: Maintain registers for the trade unions and employer organizations.
3.3 Designated Employer Definition (3)
- A designated employer refers to:
- Size Criteria: Employers with a certain number of employees as defined by the Employment Equity Act.
- Sectoral Requirements: Employers in sectors where provisions apply to employment equity goals and affirmative action.
- Obligations: Such employers must comply with the report and plan requirements outlined in the Act.
3.4 Provisions on Psychometric Testing (5)
- Fairness: Tests must be fair, equitable, and designed to not unfairly discriminate against any group of candidates.
- Validity: Psychometric tests must measure aptitude or potential accurately.
- Reliability: Tests should produce consistent results over time and across different conditions.
- Purpose Limitation: The purpose of the testing must be clear and relevant to the specific job requirements.
- Informed Consent: Candidates must be informed about the nature of testing and provide consent before partaking in such assessments.
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