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MRL3702/201/2022
Tutorial Letter 201/2022 LABOUR LAW
MRL3702
Department of Mercantile Law IMPORTANT INFORMATION: This tutorial letter contains important information about the
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MRL3702/20 1 CONTENT S 1. 2.
FEEDBACK ON ASSIGNMENT 01 REMINDER TO SUBMIT ASSIGNMENT 02
PLEASE NOTE:
The Labour Relations Act of 1995 is referred to throughout as the ‘LRA’. The Constitution of the Republic of South Africa, 1996 is referred to throughout as ‘the Constitution’. 1.
FEEDBACK ON ASSIGNMENT 01
QUESTION
Study the case of Mthembu and others / NCT Durban Wood Chips [2019] 4 BALR 369 (CCMA); (2019) 28 CCMA 8.37.3 and write a two-page legal opinion about the case. Your legal opinion must have the following:
Summary of facts The issue(s) in dispute Order of the court, and The legal importance of the case. [Including relevant referencing]
(2) (1) (1) (6)
[20]
ANSWER: (a)
Summary of facts
After a disciplinary hearing, the employer (NCT Durban Woods Chips), dismissed a number of employees from employment following the urinary test conducted during working hours which turned positive to the use of a drug (cannabis). The applicants claimed that they did not smoke the drug during working hours. It is common cause that the employer had in place a zero-tolerance policy against drug or alcohol use and all employees were aware of the same. The employer’s policy stance on alcohol and drug use is informed by the dangerous nature of its business operations which include the use of large machines and extremely dangerous vehicles which requires one to be sober [par 2]. The employees challenged the fairness of their dismissal at the CCMA. (b)
The issue(s) in dispute
Whether the dismissal of employees was substantively fair [par 1 & 63] (c)
Order of the court
The CCMA found the dismissal of employees to be substantively fair [par 88 & 89]. (d)
The legal importance of the case:
The CCMA decision confirms and provides a practical sense to the following –
section 23 read with section 24(a) of the Constitution (the right to fair labour practice and the right to an environment that is not harmful to one’s health or wellbeing];
2
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MRL3702/20 1
the employees’ common law duty to exercise their duties with utmost care and diligence; and their right to a safe and healthy working environment;
the employer’s common law duty to ensure a safe and healthy working environment [section 8 of theOccupational Health and Safety Act];
the employer’s power to discipline (the employees are duty bound to follow theemployment policies for their own and others benefit (safety); failing which theemployer may invoke its power to discipline).
the importance of Schedule 8: Item 7 of theCode of Good Practice: Dismissal in thedetermination of thesubstantive fairness of a dismissal: o o
whether or not theemployee contravened a rule or standard regulating conduct in, or of relevance to, theworkplace; and if a rule or standard was contravened, whether or not? the rule was a valid or reasonable rule or standard; the employee was aware, or could reasonably be expected to have been aware, of the rule or standard; the rule or standard has been consistently applied by theemployer; and dismissal was an appropriate sanction for thecontravention of therule or standard.
in determining thefairness of a dismissal, regard will always be given to thefacts of each case, thelevel of risk; etc. [par 85]. For instance, thefollowing were considered in thepresent case: o
that, theprohibition was not only on theuse of drugs or alcohol while at work but also theuse at a private place if theeffects or results will also be felt or manifested at theworkplace [par 84];
o
that, showing remorse may have a mitigating effect on thenature of thesanction that will be meted out for any contravention [par 86-87]
The CCMA took cognisance of theConstitutional Court decisions of Prince v Minister of Justice and Constitutional Development and others, Rubin v National Director of Public Prosecutions and others; Acton and others v National Director of Public Prosecutions and others (4153/2012) [2017] ZAWCHC 30; [2017] 2 All SA 864 (WCC); 2017 (4) SA 299 (WCC) (31 March 2017) [par 69] Your opinion should be able to capture theabove principles and of course, your view on thejudgment [whether you agree or disagree, why and support to your view with relevant legal authority].
TOTAL: [10] 2. would REMINDER TO SUBMIT 02 for assignment 02 is nearing and We like to remind you ASSIGNMNET that the due date you should make sure that you do not miss it . Please note that the marks you obtain for both assignments will contribute 20% towards your year mark. Also note that you have to obtain a subminimum of 40% in the examination in order for your year mark to be considered. We wish you every success in your studies and trust that you will find the module useful. Your lecturers Unisa
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