Multiple-choice questions:

Chapter 12

Labour Law in the WorkplaceBy the end of this chapter you should be able to do the following: Demonstrate that you are familiar with the role of labour legislation in the work environment;

Describe the role of a manager in dealing with legislation relating to labour;

Know when to seek advice on matters relating to labour legislation.

Multiple-choice questionsPlease read the questions carefully as they are intended to test/illicit understanding of the material. The answers will not be found in a specific area in the chapter but will require an understanding of all the material.

1. Identify the incorrect statement. In substantive fairness:

(a) The employer has to establish that the employee broke a rule.

(b) There is an obligation on the employer to ensure that all the rules are communicated to the employees.(c) The employer has to prove that the employee was aware of the rule.(d) The employer must have followed its disciplinary code.(e) The disciplinary code must be fair and not too strict.2. Identify the incorrect statement. To promote industrial discipline:

(a) The aim should not be to punish the employee but to correct behaviour.(b) Termination should only happen if the employment relationship has broken down irretrievably.(c) Disciplinary action cannot prevent poor discipline and should not be used to do that.(d) It should maximise productivity and minimises losses.(e) It should promote a functional and peaceful workforce.3. Identify the incorrect statement. In applying discipline:

(a) The discipline must be in proportion to the offence.(b) The employer must be consistent in its decisions and avoid using its discretion.(c) If discipline other than dismissal will achieve the same purpose as dismissal, the employer should take the alternative.(d) The employer must consider extenuating circumstances to impose a lesser penalty than dismissal.(e) Examples of factors that determine extenuating circumstances include length of service, disciplinary record (if clean) and personal circumstances.4. Identify the incorrect statement. In procedural fairness:

(a) The act requires a formal enquiry into any disciplinary case

(b) When instituting disciplinary action against a trade union representative or employee who is an office-bearer of a trade union, the union must be informed and consulted first

(c) The employee must be made aware of the charges against him/her

(d) The employee must be given sufficient time to prepare

(e) It is good practice to establish during a hearing whether the employee was informed of his/her rights

5. Identify the incorrect statement. In procedural fairness:

(a) The employee must be given the opportunity to state his/her case.(b) The employer presents its case by presenting it or by calling witnesses.(c) The employee must submit his/her own evidence to disprove the evidence given by the witness of the employer and may not question the employers witnesses.(d) Employees are entitled to internal assistance (fellow employee or trade union) but not from external parties such as a lawyer.(e) The presiding manager in a disciplinary case should be acceptable as unbiased to both parties.

6. Identify the incorrect statement. In procedural fairness:

(a) The first stage of a hearing should determine whether the employee was guilty of the allege misconduct.

(b) During the second stage of the hearing, it should be determined what disciplinary action is needed.(c) If the employee offers an excuse why he/she committed the offence, the presiding manager must take into account and reduce the disciplinary action.(d) The presiding manager must give reasons for his/her decisions.(e) At the end of the hearing the presiding manager should ask the employee if the hearing was fair and complaint should be investigated.7. Identify the correct statement.

(a) Disciplinary hearings should happen in all cases.(b) A hearing should be conducted in spite of the employee waving his/her rights after being made aware of the rights.(c) Warnings are alternative forms of discipline which are not serious enough to warrant discipline.

(d) Warnings should be kept as proof of a poor record.(e) Warnings should be issued after a hearing has been conducted.8. Identify the incorrect statement:

(a) Constructive dismissal happens when the employer makes continued employment intolerable for the employee.(b) The employee must prove that he/she was dismissed.(c) The employee must prove that the dismissal was constructive.(d) The employee must prove that the dismissal was unfair in the circumstances.(e) Not dismissing an employee for the right reason may be a form of constructive dismissal.

9. Identify the incorrect statement:

(a) The employer may dismiss an employee during the agreed sick leave period for physical incapacity

(b) If an employee will be absent for an unreasonably long period the employer may consider alternative measures short of dismissal

(c) The employee must be offered the opportunity during the investigation to state his/her case in response to the charges of incapacity to perform work

(d) In the case where alcoholism and drug abuse causes incapacity, counselling and rehabilitation may be appropriate steps for the employer to consider

(e) There is an onerous duty on the employer to accommodate employees who became incapacitated during work-related activities

10. Identify the incorrect statement

(a) Performance related unsatisfactory work happens where the employee is trying to perform but the standard of performance is unsatisfactory.(b) Poor performance warrants disciplinary action as it is a form of misconduct.(c) Unsatisfactorily work due to a lack of skill, an emotional problem or an inherent inability requires an investigation into the capacity of the employee.(d) If you are not sure whether behaviour is blameless unsatisfactory performance or misconduct, treat it as the latter.(e) Before the employer can dismiss the employee for blameless unsatisfactorily work, the employer must have taken steps (normally counseling), to improve the employees performance.11. Identify the incorrect statement

(a) Demotion is fair if it is done as a measure short of dismissal.(b) If the employee consented to a lowering of remuneration during a demotion, lowering the package will not be regarded as an unfair labour practice.(c) The employer should allow fellow employees or actively encourage fellow employees to assist an employee who is not able to fulfill his/her duties.(d) Demotion should form part of a procedure associated with blameless unsatisfactory work performance.(e) Unsatisfactory performance disguised as retrenchment is an unfair labour practice.12. Identify the incorrect statement

(a) Retrenchment is implemented for the purpose of economic survival or to increase profit.(b) The duty to consult with employees or their representatives becomes imperative once the employer contemplates the need for retrenchment.(c) Retrenchment is a managerial prerogative and the employer is the soul judge of the relevancy of the decision.(d) The guidelines to consult are set out in section 189A of the LRA.(e) Retrenchments should always be minimised if practical solutions exist.

Read the following scenario and answer questions 13 to 17 based on the scenario

13. What statement describes the above situation best?

(a) The employer acted within its rights.(b) The employer must pay Mr. A. Plus the notice stipulated in the employment contract.(c) Performance improvement procedures should be introduced before an employee is pronounced a poor performer.(d) None of the above.(e) All of the above

14. Which statement is incorrect?

(a) Mr. A. Plus should submit a medical certificate for his absence

(b) Mr. A. Plus is not required to pay the company compensation for giving short notice

(c) The employer must prove that it did not dismiss Mr. A. Plus constructively

(d) Prior to the performance feedback, Mr. A. Plus was not given appropriate feedback on his performance

(e) Mr. A. Chiever has high performance standards

15. Which statement is true?

(a) Because of the contractual agreement between the company and Mr. A Plus, Mr. Plus must seek relief from the civil court.(b) The employer do not have to pay Mr. A. Pluss outstanding leave because he did not give contractual notice.(c) Mr. A. Chiever agreed performance objectives which were unacceptable to Mr. Plus.(d) The employer must prove that Mr. A. Plus was aware of what was expected, that he was given opportunity to achieve the performance standards and that he in fact did not meet the requirements.(e) The employer must institute disciplinary action against Mr. A. Plus (even in his absence).

16. What would a criminal offence be in the above scenario?

(a) Not to conduct a disciplinary hearing.(b) Not to implement a performance improvement plan.(c) To reduce annual leave to 10 days.(d) Mr. A. Plus is criminally liable for giving short notice.(e) Visiting a stress clinic although the benefit is not covered by medical aid.17. What is untrue?

(a) The employer must identify the correct procedure to dismiss an employee, if the wrong procedure is followed, the dismissal will be automatically unfair.(b) The employer could dismiss Mr. A. Plus for absconding because stress clinic treatment is not covered by medical aid.(c) Application for constructive dismissal is lodged in the CCMA.(d) From the above, it cannot be determined whether the employer made life intolerable for Mr. A. Plus.(e) The employment contract has nothing to do with a claim of constructive dismissal.18. Which of the statements below is not an automatically unfair dismissal?

(a) Dismissal of a female employee because she is pregnant.(b) Dismissal based on arbitrary grounds such as race or gender.(c) Dismissal for unsubstantiated reasons.(d) A and B.(e) B and C.19. Which measure below is not an affirmative action step?

(a) An analysis of the stumbling blocks that aversively affect the appointment of previously disadvantaged individuals into all levels within the organization.(b) Consult with employees.

(c) Prepare and submit an employment equity plan.(d) Report on employment equity to the Director General.(e) Justify the non-appointment of white males as a step to promote affirmative action.20. A dismissal should only occur once the following has been done. Identify the wrong answer?

(a) Dismissal for misconduct only happens if the employee is undisciplined or badly behaved

(b) Dismissal is a measure of last resort

(c) Dismissal should always have a fair reason

(d) Apportioning blame to the employee is not applicable to dismissal but only for incapacity

(e) A fair procedure

TRUE OR FALSE QUESTIONS

Please indicate whether the questions are true of false?

1.Common law applies to all labour law cases

T/F

2.The BECA applies only if collective agreements do not exist

T/F

3. Employers are protected if they use affirmative action as a

reason to exclude a White person from a job opportunity

T/F

4. Self regulation of employers and employees is possible in terms

of the LRA

T/F

5. An employer may be criminally charged if they do not adhere to

the BCEA stipulations

T/F

6. An employee is entitled to 15 work days annual leave per

annum inclusive of public holidays

T/F

7. During the duration of an employment contract, employees may

be paid in lieu of leave

T/F

8. Employers within a certain sector are able to fund registered

learnerships from the SETA

T/F

9. Skills development levies are deducted from the payroll and paid

to the Receiver of Revenue

T/F

10. The employer and employee contributes equally (50/50) to the

UIF

T/F

11. The employer must complete the claims documents in the case

of an occupational injury

T/F

12. Employers are protected from civil claims if they comply with the

OIDA

T/F

13. Employers contribute to the Compensation fund and claim

against it in the case of injuries in the workplace. The fund

therefore protects the employer from any losses caused by

injuries on duty

T/F

14. The employer or union/employees may approach the Labour

court to declare a strike or lockout protected

T/F

15. The CCMA must make a ruling about the fairness of

retrenchment

T/F

16. A clause in an executives employment contract that deals with

his 25 days annual leave should be heard in the CCMA

T/F

17. A clause dealing with an executives employment contract

dealing with the protection of intellectual property rights will be

heard in the CCMA

T/F

18. An employee with a contract to be paid 3 x normal salary for

overtime may only approach the civil court if the employer only

pays out 2 x normal salary

T/F

19. The payment in question 18 is also a criminal offence

T/F

20. The employer may discriminate based on the inherent requirements

of the job

T/F

Case Studies

Case Study 1

Read the case study below and do the assignment.

Assignment

1. What alleged situation is described above?

2. Describe the procedure that you will follow, if any?

a. Do a benchmark of at least two companys procedures to deal with the above situation and recommend a procedure for your company.

b. Who has the burden of proof in these situations?

c. Describe the different legal remedies available in the above scenario?

3. Given the facts at face value, what decision will you make in respect of Mr. Randal Wild and Sue Exy.Case study 2

Read the case study below and do the assignment.

Assignment

1. Do a benchmark study of at least two companies on retrenchment procedures and recommend a procedure to follow? The procedure should provide for:

a. Consultation about the intention to retrench;

b. Selection criteria;

c. New structures;

d. Steps to mitigate the effect of the retrenchment;

e. The selection process;

f. Communication.

2. What advice will you give the top management?

3. What will you consult the unions about?

Case study 3

Read the case study below and do the assignment.

Assignment

1. Consult the Code of Good practice in the LRA, obtain two policies from reputable employers and determine a strategy how to deal with the situation in general.

2. What decision will you make in respect of Ms Van der Boom?

3. What decision will you make in terms of Rusty?

4. Will you lay criminal charges?

5. What will you do about the rest of the employees?

Case study 4

Read the case study below and do the assignment.

Assignment

1. Research the relevant sections in the EEA. Obtain opinions from experienced IR consultants and decide whether Mr. White has a case.

2. Decide how you will deal with the situation.

3. What remedies will Mr. White have, if any?

4. What are the rights of the lady appointed in the job?

The name Sue Exy seems vaguely familiar. As you read the letter your memory comes back. She was the employee your colleague Randal, another department manager, told you about. He mentioned that he is increasing the performance standards and that she became a victim of the process.

As you read the letter your glasses start to fog up from the steamy content. Miss. Exy described her short relationship with your colleague Randal Wild in a very candid way with little left for the imagination. She confessed that after a month of the rollercoaster relationship, she turned to her husband and in a moment of guilt she pored her heart out. Nave Exy felt sorry for his wife and they decided to work to restore their marriage.

During a romantic supper, Sue breaks the news to Randal who refuses to accept the fact. Sue sticks to her commitments to her husband and rejected all further attention from Randal.

In her letter she stated that Randal started to call her in to discuss her (work) performance. He accused her of poor and unsatisfactory performance and soon started to implement a performance improvement programme. This was a complete surprise to Sue who felt that her performance had improved since she had devoted her full attention to her work. When she was dismissed for blameless poor performance she knew it had everything to do with her ending the relationship with Randal.

The Abundance Group (AG) acquired the major share in the Ailing Contact Centre Group (ACCG). There are considerable synergies and current staff complement is estimated to reduce from the 2000 (AG-1500 and ACCG-500) to 1600. There is currently a full duplication of the managerial structures and only about 100 contact centre agents from the ACCG will be needed to serve the new customer base of AG.

You are called in and in a confidential discussion you are informed that you were identified, as the only surviving manager from ACCG and your survival is dependent on the success of the project to integrate the two businesses.

Ms Van der Boom developed the reputation of being unstable after tea breaks. Her case came under your attention when she insulted a client. After investigation it appears that she was a cannabis addict who practices her habit at work. Of more concern was the discovery that she obtained the cannabis from Rusty, a paraplegic Rastafarian employee who sells it to other employees as well. Rusty was very cooperative during the investigation and explains that he had no religious objections to use it and that cannabis cleanses the soul; something the uptight managers should discover for themselves. After all, working in a call centre is stressful with little compensation to show for it. As a paraplegic he also has special needs, which are not sufficiently provided for by the employer.

Mr. White is a Caucasian male with a tint of grey on his temples. He lodged a grievance because in his opinion he is better qualified for the position of supervisor, where you recently appointed a young, inexperienced Black lady with a pleasant demeanor, who has an easy rapport with the younger employees. She does not know the work processes well, neither is her product knowledge good. However, she has exceptionally good relationships with the employees who seem to follow her leadership.

The specifications for the job as set out in the internal advertisement specifies that product knowledge and system knowledge were essential and that managing people would be part of the job. It did not specify any preference to previously disadvanced individuals.

Mr. A. Plus was appointed on an employment contract that deviates from the BCEA conditions in terms of annual leave, probation and termination conditions. A dispute about Mr. As performance arose. While Mr. A. Plus thought he was an A performer, he learned that his manager, Mr. A. Chiever rated him a D-performer, something for which the company rules require the introduction of performance improvement procedures. After a week of depression treatment in a stress clinic, Mr. A. Plus summarily resigned and immediately introduced action for constructive dismissal