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LRP812S - Labour Relations Practice - 2nd OPP - JUN 2023 |
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nAm I Bl A un IVERSITY
OF SCIEnCE Ano TECHnOLOGY
FACULTY OF COMMERCE, HUMAN SCIENCESAND EDUCATION
DEPARTMENT OF GOVERNANCE AND MANAGEMENT SCIENCES
QUALIFICATION: BACHELOR OF EMPLOYMENT AND LABOUR RELATIONS HONOURS
QUALIFICATION CODE: 08BILR
LEVEL: 8
COURSE CODE: LRP812S
SESSION: JULY 2023
COURSE NAME: LABOUR RELATIONS PRACTICE
PAPER: THEORY
DURATION: 3 HOURS
MARKS: 100
SECOND OPPORTUNITY/SUPPLEMENTARY EXAMINATION QUESTION PAPER
EXAMINER(S) Mr Elias Kandjinga
Mr Ohms Kayama
MODERATOR:
1. Answer ALL the questions.
INSTRUCTIONS
2. You are expected to apply your subject knowledge to the questions.
3. Write clearly and neatly.
4. Number your answers clearly.
1. Pen
2. Ruler
PERMISSIBLE MATERIALS
THIS QUESTION PAPER CONSISTS OF 6 PAGES (Including this front page)
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Section A (Answer all questions)
[60 marks]
Question 1
Read the following Labour Court appeal judgement and answer all the following
questions.
LEWISSTORESNAMIBIA (PTY) LTDT/A BESTHOME & ELECTRICVS CAROLLAKAVENDJII
This is an appeal against the arbitration award delivered by arbitrator Kleofas Geingob on
24 September 2021 under case number CROU49/20.
The respondent was subjected to a disciplinary hearing on 28 July 2020 and dismissed.
Respondent was employed as an Assistant Regional Controller by appellant and it was
discovered that client refunds were processed over a period of time. These transactions
were done contrary to prescribed policies and respondent authorised these transactions.
According to appellant these transactions are fraudulent. The respondent referred the
dispute to the office of the Labour Commissioner and the arbitrator found that the
respondent was dismissed unfairly both substantively and procedurally. The arbitrator
ordered respondent's reinstatement as well as a payment of N$ 400,000, being 16
months' salary. Appellant appeals this result and raises three points in limine as well as
twelve grounds of appeal on the merits.
Having read the papers and heard the submissions by Mr Rukoro on behalf of appellant
and Mr lkanga on behalf of respondent, I am satisfied that the arbitrator erred on various
counts. The question of the substantive unfairness of the dismissal should be revisited
since respondent was in a responsible, trusted position and she clearly authorized client
refunds that were not in terms of the appellant's policies. A strong argument can be made
that it was dishonest. If established, it would in my view justify dismissal. The procedural
fairness of the disciplinary proceedings should also be revisited. The telephonic testimony
of the witness should be addressed. It appears the respondent accepted this procedure.
Nevertheless, it may not be enough for a respondent to accept a procedure to render it
fair. The further aspect which is of concern is that the chair of the disciplinary proceedings
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was also a witness. Finally, even if it is determined that the disciplinary proceedings were
procedurally tainted it does not necessarily justify a reinstatement. The respondent was
in a position of trust and if it is established that trust was breached, reinstatement does
not necessarily follow.
In the premises, the appeal is upheld and the matter is referred back for another
arbitration before a different arbitrator.
It is ordered that:
1. The appeal is granted and the arbitration award by Mr Kleofas Geingob dated 24
September 2021 is hereby set aside;
2. The matter is referred back for arbitration before a different arbitrator; and
3. No order as to costs.
The matter is removed from the roll: Case regarded as Finalised.
Source: : Lewis Stores Namibia (Pty) Ltd t/a Best Home & Electric v Carolla Kavendjii {HC-MD-LAB-APP-AAA-2021/00073) [2022]
NALCMD 12 {16 March 2022)
1.1. Having read the case above, briefly summarise sequential turn of events that
led to the conclusion of the above case in the Labour Court.
[10]
1.2. In your view, why did the applicant approach the Ministry of Labour, Industrial
Relations and Employment Creation and thereafter why did the
appellant/complainant approach the Labour Court?
[10]
1.3. Differentiate between mediation, conciliation, arbitration and identify the
types of disputes that can be resolved through each one of them.
[10]
1.4. The final judgement is that this case will start over again with a different
arbitrator. Assume you are the new Arbitrator assigned to adjudicate the case,
digest, and discuss pertinent issues that you will consider ensuring a fair and
representative outcome for both parties.
[10]
1.5. At the office of the Labour Commissioner the arbitrator established that the
respondent was dismissed unfairly both substantively and procedurally. With the
aid of the case, explain in general what this statement suggest in practice.
[10]
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1.6. In relation to the case, explain the legal remedies for unfair dismissal both at
company level and the state.
[8]
1.7. Identify and justify the type of dismissal evident in the above case.
[2)
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Section B (Answer all questions)
Question 1
[40 marks]
2.1. Distinguish between the positive and negative approach to discipline.
[6]
2.2. Differentiate between economic strike and a grievance strike
[4]
2.3. Read the scenario below and then answer the questions that follow.
Assault at Wonderful Fried Chicken (WFC}
Liam was employed by WFC (Wonderful Fried Chicken), a take-away restaurant, on
25 March 2015 as a cook. On 13 August 2015, the manager requested Liam to stand
in for another employee on Sunday. {In Liam's employment contract it was clearly
stated that employees could be requested to work overtime if the manager
requires them to and that they would be paid 1.5 times their normal wage on a
Sunday, because WFC was open seven days a week and Sundays were considered
normal working days.) Liam turned his back to the manager and started to speak
in Tswana to another employee. From the tone of his voice, the manager gathered
that Liam strongly objected to the request. When the manager asked Liam and his
co-worker what the problem was, Liam threw the manager down on the floor and
kicked him, causing him to suffer broken ribs and bruising his arm and face. Liam
then left the premises without permission in the middle of his shift. He returned
to work the next day.
Source: Ne/. et al {2020}
2.3.1. If Liam's manager dismissed him on the spot the next morning when he
returned to work, would that be fair? Why or why not? Answer this question by
briefly discussing the requirements stipulated by the Namibian Labour Act, Act
11 of 2007 regarding the steps/procedures that should be taken before an
employee can be dismissed.
[15]
2.4. In a short summary, how did the Labour Relations Practice (LRP812S) as a
course shape your understanding of the employment relationship in
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''
contemporary organisations? Do you foresee applying what you have learned
thus far, how? Here, you are required to express your understanding in your own
words and not listing topics or themes appearing in your prescribed course
materials. Also, please note that this question is twofold, the latter requiring
you to relate theory to practice.
[15]
End of Paper!
Good Luck!
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