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TOPIC: LABOUR LAW QUESTIONS
#2386
LABOUR LAW QUESTIONS 4 Years ago Karma: 2
HI Guys

I need your assistance, especially from those that have already done labour law.

Assume that Employer X establishes a pension fund in its workplace and taht all employees of X are compelled to contribute to this fund. X contributes teh equivalent percentage than the individual employees to the fund. The contracts of employment of the employees stipulate that all permanent full-time employees must contribute 7.5% of their salaries, adn that all permanent part-time employees must contribute 5%. teh part time employees are unhappy with this state of affairs. Dethermine whether or not there is any direct discrimination in this set of facts. In indeed there is, is it fair or unfair in your opinion.

What is therelevant dispute route for this dispute?

Assume that your client (part time employee) is a member of a registered trade union. Will this trade union be entitled to disclosure of informationwith regard to the dispute?
If so, to what information will it be entitled to?

Discuss the remedies that an employee has for a substantially unfair dismissal

Discuss the remedies that an employee has for a procedurally unfair dismissal

Whats Section 187?

Thanks!
Mmatlou
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#2387
Re:LABOUR LAW QUESTIONS 4 Years ago Karma: 2
Here is Section 187 for you... it woud be Section 187 of the Labour Relations Act...

As for the rest...you'll find it in your textbook - Essential Labour Law.

Information that should be disclosed - Chapter 14. Organisational Rights

Sustantive fairness of dismissals - 115 of your textbook

Procedurally fair dismissals - pg 125 of your textbook


Definately not gonna do all the thinking for you but have nudged you in the right direction.



187.   Automatically unfair dismissals.—(1)  A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 549 or, if the reason for the dismissal is—
(a) that the employee participated in or supported, or indicated an intention to participate in or support, a strike or protest action that complies with the provisions of Chapter IV;50
(b) that the employee refused, or indicated an intention to refuse, to do any work normally done by an employee who at the time was taking part in a strike that complies with the provisions of Chapter IV or was locked out, unless that work is necessary to prevent an actual danger to life, personal safety or health;
(c) to compel the employee to accept a demand in respect of any matter of mutual interest between the employer and employee;
(d) that the employee took action, or indicated an intention to take action, against the employer by—
(i) exercising any right conferred by this Act; or
(ii) participating in any proceedings in terms of this Act;
(e) the employee’s pregnancy, intended pregnancy, or any reason related to her pregnancy;
( f ) that the employer unfairly discriminated 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;
(g) a transfer, or a reason related to a transfer, contemplated in section 197 or 197A; or
[Para. (g) added by s. 42 of Act No. 12 of 2002.]
(h) a contravention of the Protected Disclosures Act, 2000, by the employer, on account of an employee having made a protected disclosure defined in that Act.
[Para. (h) added by s. 42 of Act No. 12 of 2002.]
(2)  Despite subsection (1) ( f )—
(a) a dismissal may be fair if the reason for dismissal is based on an inherent requirement of the particular job;
(b) a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.
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#2391
Re:LABOUR LAW QUESTIONS 4 Years ago Karma: 6
You need to keep in mind that these employees have not been dismissed; therefore you need to look at an unfair labour practice and why it is substantially and procedurally unfair.

I can tell you now that this case will not go far. I've been in the corporate industry for 6 years and the CCMA has allowed "discrimination" in certain instances concerning part time or contract employees. The union would need to distinguish this because different rules apply. If these part-time employees have a contract with a labour broker then the actual company does not have to offer them a pension.
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#2446
Re:LABOUR LAW QUESTIONS 4 Years ago Karma: 191
Hi

My tuppence worth.

Discrimination can only give rise to a legal issue when it is "unfair". Discrimination per se is not and never has been illegal

If an employer can justify why he has discriminated, then he is on safe ground.

If the employer uses the argument that 5% of a part-time salary equates proportionally to a 7.5% of a full time salary - he is very safe - discrimination of any kind falls out the window - never mind an "unfair" discrimination.

Cheers

Amanda
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