APL4802 OCT_NOV EXAMINATION

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North West University - Potchefstroom *

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Nov 24, 2024

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APL4802 EXAM OCT/NOV 2023 PAGE 1 OF 8 UNIVERSITY EXAMINATIONS October/November 2023 APL4802 Applied Labour Law for Forensic Auditors 100 Marks Duration: 24 Hours First examiner: Ms M Mulaudzi Second examiner: Dr W Germishuys-Burchell This paper consists of 8 pages. INSTRUCTIONS FOR A PORTFOLIO OR TAKE-HOME EXAM ON MYEXAMS PLEASE READ THE FOLLOWING INSTRUCTIONS CAREFULLY BEFORE ANSWERING THE EXAMINATION QUESTIONS. 1. The examination question paper counts 100 marks. 2. It consists of FIVE (5) questions. Answer ALL of the questions. 3. The duration of the examination is 24 hours . Your answers must be submitted via the myExams platform on 01 November 2023 on or before 08:00 am (South African Standard Time). 4. This is an open-book examination . You may consult your prescribed study material during the examination. 5. This examination is not proctored via the Invigilator App. 6. SUBMISSION OF YOUR EXAMINATION ANSWER FILE Your answer to this portfolio or take-home examination must be submitted online on the myUnisa platform. 6.1 Access myUnisa at https://mymodules.dtls.unisa.ac.za and login using your student number and myUnisa password. 6.2 Go to your specific examination site through the site tabs on the horizontal toolbar. 6.3 Once the site has loaded, select Assessment 3 from the activities menu.

APL4802 EXAM OCT/NOV 2023 PAGE 2 OF 8 6.4 Submit your examination answer file on myUnisa. You are allowed to attach ONE PDF file. Tip : You may click Remove to remove the attachment if you selected the wrong file. Tip: Select the honour pledge . Students MUST tick the honour pledge before submission if it appears on the screen. A student will not be able to submit the assessment if he/she did not tick the honour pledge. When you are ready and satisfied that you have uploaded the correct answer file, click the Submit button to complete your assessment submission. Tip: If you are not yet ready to submit, you may click Preview to preview the submission, or Save Draft to save your submission and submit it later. Click Cancel to exit the assessment without saving or submitting. You are advised to preview your submission to ensure that it is legible and that the correct answer file has been uploaded. Time permitting, you will be allowed to resubmit your exam file twice. 7. The cover page to your take-home exam must include your name, student number and the module code. 8. It is preferred that your portfolio is typed. However, handwritten submissions will also be accepted. If the portfolio is typed, the maximum length is NINE (9) pages (which excludes the cover page and the bibliography). If the portfolio is handwritten, the maximum length is TWELVE (12) pages (which excludes the cover page and the bibliography). 9. Whether your answers are typed or handwritten, your submission on the myUnisa platform must be made in the form of one PDF document. 9.1 The exam answer file that you submit must not be password protected or uploaded as a “read only” file. 9.2 Your examination answer file will not be marked if: 9.2.1 you send your examination answer file via email. 9.2.2 you submit the incorrect examination answer file. 9.2.3 you submit your exam answer file on an unofficial examination platform (including the invigilator cellphone application). 9.2.4 you submit your examination answer file in the incorrect file format. 9.2.5 you submit a password-protected document. 9.2.6 you submit your examination answer file late. 9.3 The mark awarded for an incomplete examination answer file submission will be your final mark. You will not be allowed to resubmit after the scheduled closing date and time of the exam.

APL4802 EXAM OCT/NOV 2023 PAGE 3 OF 8 9.4 The mark awarded for an illegible examination answer file submission will be your final mark. You will not be allowed to resubmit after the scheduled closing date and time of the exam. 10. If your answers are typed, ensure that the following requirements are adhered to. Items 10.3-10.6 applies to written assignments as well. 10.1 The text must be typed in Arial font, size 12 with single line spacing within the paragraph, and double line spacing after the paragraph. 10.2 The text must be justified. 10.3 All of the pages must be numbered in the right-hand corner at the bottom of the page. 10.4 All margins must be 2.5cm, but the left margin must be 3cm. 10.5 South African English and not American English should be used. For example, the correct spelling is “Labour” and not “Labor”. 10.6 Do not use abbreviations or SMS language. 10.7 All quotes that are two lines long (or less), must form part of the main text, be written in italics, and be bracketed by quotation marks. Where a quotation is longer than two lines, it must be typed in a separate paragraph in italics in size 11 font and must be indented by 1 cm. No quotation marks are required when the quotations stand alone. Use quotations very sparingly. In this take-home exam, a maximum of 5% of the text may be quoted. 11. When answering the take-home exam questions, remember that an open-book exam is a test at a higher level than the usual type of exam, where memory is tested as much as insight. In an open-book exam, you need not memorise any information. You are expected to prove that you can use information, rather than merely repeat it. In brief, what is being tested is factual knowledge, understanding and the correct application thereof, not memory skills. For this reason, you do not earn marks by merely detailing a list of all the information that you think might be relevant to a particular question. This gives no indication that you know what statutory or other provisions are applicable in a specific context. You are expected to identify precisely what information applies, and then explain why you think so. 11.1 Also, because you have your prescribed study material and tutorial letters available when answering questions, we do not give marks for direct quotations from these sources. You are therefore assessed on your level of understanding of the legal principles by looking at how well you applied the principles to the questions. 11.2 PLEASE DO NOT CUT AND PASTE ANSWERS FROM PRESCRIBED STUDY MATERIAL (OR ANY OTHER SOURCE). 12. The arguments that you make must be logical, well-structured and substantiated by all of the relevant legal principles. You are given 24 hours (not 2 hours) to complete the take-home exam. Use the time given wisely. 12.1 Ensure that you give reasons for each answer. Substantiate your answers by referring to ALL of the relevant authorities, e.g. sections from relevant legislation and/or court cases in the text or in your footnotes.

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APL4802 EXAM OCT/NOV 2023 PAGE 4 OF 8 12.2 You are required to have read and summarised the prescribed cases and journal articles yourself. The summaries in the tutorial letters are not sufficient for this exam. When using case law to support your answer, please include complete references to the relevant cases in your footnotes. This means that you must not only include the name of the case but also the exact page and section and/or paragraph where the information can be found. The same applies to articles and books used. 12.3 A number of students lose marks because they do not approach problem-type questions correctly. When answering such questions, it is important to first clarify for yourself the area of work where the answer must be sought. Once you have done this, set out the relevant legal principles. Deal only with those principles that relate to the given facts. Next, apply these principles to the facts. This is where most of the students lose marks - they set out the law in some detail, but then do not illustrate how it applies to the factual situation they have been asked to solve. Finally, state your conclusion. 13. By ticking the Honour Pledge, you confirm that you have read (i) the University’s Policy on Copyright Infringement and Plagiarism and the Student Disciplinary Code , which are both available on myUnisa: www.unisa.ac.za/unisarules , and (ii) the information relating to student values and plagiarism that is found at https://www.unisa.ac.za/sites/myunisa/default/Study-@-Unisa/Student-values-and- rules . 13.1 Students suspected of dishonest conduct during the examination will be subjected to disciplinary processes. UNISA has a zero tolerance for plagiarism and/or any other forms of academic dishonesty. PLEASE NOTE: If you experience technical problems of any kind on the day(s) of the examination (including network or load-shedding challenges) and your examination answers are not submitted by the cut-off time, please apply online for an aegrotat exam within 3 days of the examination session. Include supporting documentation with your application. Students experiencing technical challenges may contact the SCSC on 080 000 1870 or email Examenquiries@unisa.ac.za or refer to Get-Help for the list of additional contact numbers.

APL4802 EXAM OCT/NOV 2023 PAGE 5 OF 8 QUESTION 1 Section 252A of the Criminal Procedure Act 51 of 1977 allows law enforcement officers or their agents to use traps or to engage in undercover operations in order to prevent, detect or investigate the commission of an offence. Since the coming into force of section 252A, South African courts have developed a rich jurisprudence on the issue of traps and undercover operations. There has been an inconsistent trend on the part of the Labour Court, the Commission for Conciliation, Mediation and Arbitration and bargaining councils, in assessing the admissibility of evidence obtained through entrapment or undercover operations in employment matters on the basis of section 252A. Discuss why section 252A of the Criminal Procedure Act is problematic when applying it in employment matters. (15) [TOTAL FOR QUESTION 1: 15 MARKS] QUESTION 2 Manny is a professional chef employed by Incredible India, a restaurant that specialises in Indian cuisine. Manny works under the direct supervision of the Executive Chef, Jarad, who comes from India. Jarad imports all the secret ingredients that he uses in his secret traditional family recipes directly from his trusted suppliers in India. Over the four years that Manny has been employed by Incredible India he has learnt a lot from Jarad. During the past year the employer (who is also the restaurant owner), Mr Owner, has found himself in financial difficulty. To save the restaurant Mr Owner has decided to retrench only one employee, Manny. Mr Owner tells you that he has already made up his mind to dismiss Manny. He also tells you that, should the dismissal be challenged, he is worried that his decision to retrench might be second- guessed as not being “the best decision under the circumstances” and asks you for advice on this issue. 2.1 In light of the above facts and with reference to the relevant authority, advise Mr Owner about the exact requirements that he should follow to ensure both the substantive and procedural fairness of Manny’s dismissal. (10)

APL4802 EXAM OCT/NOV 2023 PAGE 6 OF 8 Mr Owner tells you that because Incredible India uses secret recipes and secret ingredients, all employees who have access to the kitchen are required to sign an agreement that contains the following clause: “The employee herewith agrees that, for two years after termination of employment with Incredible India, he/she will not accept employment with any competitor of the employer or open a business in competition with the employer within a 200 km radius of the premises of the employer.” Manny’s employment contract which he signed with Incredible India also contains this clause. 2.2 Taking into account (and explaining) the purpose of the above clause, advise Mr Owner on whether he will be able to enforce this clause against Manny, should Manny, after his dismissal, take up employment with the Italian restaurant next-door. (15) [TOTAL FOR QUESTION 2: 25 MARKS] QUESTION 3 Lefa is employed as a Junior Accountant at the Tshwane Municipality. Lefa suspects that his direct line manager, Tshepo is accepting bribes from other government officials in exchange for tender contracts. Lefa reports this to the Head of Department. Two months later, after no further investigation was put into the matter, Lefa approached a local newspaper with this information. A few weeks later a story on the allegation that the Tshwane Municipality is accepting bribes from government officials in exchange for tender contracts, appears in the local newspaper. Shortly after the said article appeared in the newspaper, Lefa is transferred to Rustenburg. However, Lefa refuses to be transferred. Tshepo bullies and threatens to dismiss Lefa if he does not accept the transfer. With reference to the relevant legislation and case law, discuss the remedies available to Lefa in this case. (20) . [TOTAL FOR QUESTION 3: 20 MARKS]

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APL4802 EXAM OCT/NOV 2023 PAGE 7 OF 8 QUESTION 4 Kholofelo is a 28-year-old Black African female. She is employed by MMM, where she is a Senior Audit Manager. Kholofelo has 6 years’ work experience and has spent all those years as an employee of MMM. She manages a team of 10 auditors whose work involves auditing the financial records of the firm’s banking clients. In March 2021, Kholofelo discovered that her White female colleague, Michelle, who is also 28 years old, receives a salary that is 25% higher than her own (Kholofelo’s) salary. Kholofelo sought to resolve the matter internally, however, her attempts proved fruitless, and she then referred the matter to the CCMA for conciliation. At the CCMA, conciliation failed and the matter was then referred to the Labour Court. In her court papers, Kholofelo alleges that she has been unfairly discriminated against on the listed ground of race. She avers that she is a victim of unfair discrimination because she, as a black employee, is doing the same work as Michelle, but, Michelle as a white employee, receives a salary that is 25% higher than her own. Kholofelo further avers that the work that she is doing at MMM is substantially the same as the work that her colleague is doing, because Michelle is also a Senior Audit Manager. Michelle also oversees a team of 10 auditors on the insurance side of the firm’s audit work. Like Kholofelo , she has 6 years’ work experience and has spent her whole career at MMM. According to an expert witness called by Kholofelo to testify before the Labour Court, the difference between insurance and banking audits is superficial at best. Nevertheless, the Labour Court found that Kholofelo had “failed to establish a prima facie case of unfair discrimination on the listed ground of race” and her claim was dismissed. Kholofelo has now lodged an appeal with the Labour Appeal Court. With reference to the relevant legal authorities (applicable case law and legislation), advise Kholofelo on her prospects of success. Your answer must include the following: ➢ The legal basis for Kholofelo ’s claim. ➢ The requirements for proving “work that is the same or substantially the same”. ➢ An explanation of whether a claimant relying on a ground such as race is required to establish a prima facie case of unfair discrimination. ➢ Comment on Kholofelo ’s prospects of success with her claim. (15) [TOTAL FOR QUESTION 4: 15 MARKS]

APL4802 EXAM OCT/NOV 2023 PAGE 8 OF 8 QUESTION 5 Sandy has been employed by AAA Advertising for four years. Her first fixed-term contract ran from 1 January – 31 December 2019. Thereafter AAA renewed her contract (yearly) for three more consecutive years. During October 2022, the employer approaches Sandy and tells her that her employment will terminate on 31 December 2022 which is the date on which her current fixed-term contract expires. Sandy tells you that in view of the repeated previous renewals, she had a reasonable expectation of renewal. Sandy believes that the reason for the non-renewal of her fixed-term contract is the fact that, the employer, at the end of September 2022 found out about her pregnancy and that the employer did not condone her falling pregnant out of wedlock. Sandy also tells you that she was earning R 241 110.59 per year. 5.1 In light of the above facts and with reference to the relevant authority (legislation and case law) advise Sandy fully about the different causes of action, the steps that she should take, the onus of proof and about all of the possible remedies that she might have. (20) 5.2 Would your answer to question 5.1 above be any different if Sandy told you that she was earning below the earnings threshold referred to in the Basic Conditions of Employment Act 75 of 1997 (‘BCEA)? (5) . [TOTAL FOR QUESTION 5: 25 MARKS] TOTAL FOR THE PAPER: 100 MARKS © UNISA 2023