The applicant was employed as a fleld Engineer at PMK Electrical suppliers.On 25 October 2000 she was found guilty at a disciplinary enquiry of unauthorized absence.She had gone to see her Doctor due to pregnancy complications between 27 September and 02 October, without submitting a medical certificate and was given a final written warning.This was her first misconduct.Prior to the disciplinary hearing she was also absent on 23 and 24,and ascribed this to the need to prepare for her hearing.On 30 October she was found guilty of insubordination,the employer requested her to go for a site visit at the graveyard but she refused due to her pregnancy also indicating that her customer and religion do not allow her to be in risky areas like graveyard.Later that day she requested the employer to provide her with a written contract of employment as she had been in the current employment for a period of 4 years without a contract,but with full benefits.The employer refused and she was given a further final written warning and a suspension. On 8 November 2000 she was charged with unauthorized absence on both 23 and 24 October,and after the disciplinary enquiry and appeal she was dismissed. She referred a dispute to the CCMA.

The arbitrating commissioner was asked to consider the appropriateness of the final warning issues on 20 September and the procedural and substantive fairness of the dismissal.

The commissioner considered the evidence of both parties and made reference to the guidelines contained in article 7 of the code of good practice:Dismissal was fair in term of para (a)(b)(i)(iii) of that guideline.However,the employee challenged the appropriateness of dismissal as a sanction for breaching the employer's ruler relating to unauthorized absence. In particular,she challenged the fairness of the current warning against her on the basis of discrimination due to pregnancy,which the employer had relied on in dismissing her.The commissioner found that an employee may only raise the fairness of previous warning at a subsequent hearing if he or she had challenged the fairness of warning at the time,assuming that she knew of that right of challenged or appeal.In the present case the employee knew of the procedure for appealing against written warning and it was highly probable that she did not challenge the earlier warning. The commissioner accordingly found that she was barred from reopening issues.

The commissioner the considered whether the employer was entitled to take into consideration the disciplinary history of an employee,where that South Africa jurisprudence provides that an employer is entitled to take into consideration previous disciplinary measures,including expire warning as they relate to the same offence.

Finally,the commissioner concluded that the employee cannot use pregnancy as an excuse for absenteeism,he also concluded that the principle of natural justice had been sabstantive and procedurally fair.

Question 1

You are a Human Resources Manager at the company and the above dismissed employee,approaches you for advice as she want to refer the matter to the labour court.

a.Advise the client in detail with regard to the effect of discrimination based on pregnancy. Refer to (section 187(e)of the LRA motivate your answer with the reasons for these legal effects and relevant case law;

b.critically discuss the requirement for valid contract and develop a contract of employment for the employee/your client

c.Analyze and qualify the requirement of strike and unprotected strike

d.Lastly in your own word analyze and scrutinize the above case and the ruling by commissioner.Advise the employee if the matter can be referred to the labour court on not .Refer to the framework of the Labour Relation Act.NB!!!REFERENCE USING HARVARD METHOD.