Labour Law

SECTION A [40 Marks] Read the scenario below and answer ALL the questions that follow.

Quinton is a recent IT graduate from Pretoria Tech University. A relatively big corporation based in Sandton has contacted him requesting his services. Quinton jumps at the opportunity to get some work experience while figuring out whether to proceed with school and do masters program. Quinton is told that he is going to be needed from "time to time" and he is flexible to work out his own work schedule. He is told that there is a company vehicle available for him to use to commute to work and that his relocation fee will also be paid. The manager of the company tells Quinton that he should invoice the company monthly for services rendered. They agree on an hourly fee. After a few months, he realizes that he does not receive a pay slip and no employee deductions are made on his salary. Most of his work is on a "need basis" so his salary fluctuates. Quinton is worried that the situation he finds himself in is not too clear. He learns that you are currently studying Labor Law and approaches you for advise on whether he is an independent contractor or an employee of the company.

Answer ALL the questions in this section.

QUESTION 1 (20 Marks) Distinguish between an employee and an independent contractor, then advise Quinton whether the law would recognize him as an employee or an independent contractor.

QUESTION 2 (20 Marks) Compare and contrast the factors that are considered when determining whether one is an employee or an independent contractor as set out in Smit v Workmens' Compensation Commissioner 1979 (1) SA 51 (A) with those set out in section 83A of the Basic Conditions of Employment Act. Make reference to the scenario to enhance your answer.

SECTION B

QUESTION 3 [20 Marks]

A contract of employment gives rise to corresponding duties for both the employer and the employee. Discuss in detail what each of these duties entail.

QUESTION 4 [20 Marks] Distinguish between fair discrimination and unfair discrimination in terms of the Employment Equity Act. In your answer, provide an explanation of the burden of proof which must be discharged in allegations of unfair discrimination.

QUESTION 5 [20 Marks] Analyse and discuss the various ways in which a contract of employment may be terminated.