FORMATIVE ASSESSMENT 1

[100 Marks]

Read the case study below and answer ALL questions

Makelotsomoney (Pty) Ltd, a small company in the retail sector with a few stores in the rural areas of the Western Cape, upgraded its technology in its stores a few months ago because it wanted to achieve greater efficiency. Joe, the chief shop steward of the Retail Workers Union (which has been recognized for collective bargaining purposes for a few years) and Frank, an active union member, both based at the companys main store in Paarl, have been employed by the company for many years as packers and general labourers. Both are quite ambitious and, although it was not their job to operate computer terminals, they slowly taught themselves how to do this in the store as they were keen to improve their skills and educational level. They did so well that after a few months they had mastered the computer in the store and were performing the jobs of computer operators by voluntarily helping out as and when needed, as the company was short- staffed. They felt they should receive some recognition and perhaps some additional remuneration for their efforts and willingness to learn.

Joe approached the store supervisor and asked that the company regrade him and Frank upwards as he maintained that they were now performing work of a higher grade. The stores supervisor, having been able to rely on Joe and Franks skills, had not himself mastered the terminal. He feared Joe and Frank were trying to supersede him. He did nothing.

Joe and Frank then approached the factory manager and demanded that he immediately regrade them upwards as they were now performing the job of computer operators. He said that he would consider their demand and come back to them. He was willing to recognize their efforts but was worried about the cost of doing this.

He then spoke to the companys general manager. His attitude was that recognition might have been due to Frank and Joe, but job grading was a management prerogative. He feared that if they talked to Joe, as a senior shop steward, about job grading, this would set a dangerous precedent and would constitute a victory for the union in its pursuit of greater workplace control. He believed that the demand was a union-inspired attempt to dictate to management. Although the factory manager wanted to discuss the matter with the workers in order to find a satisfactory outcome, the general manager decided that it would be best not to respond to Joe and Frank because any response would constitute a concession to negotiate about a management prerogative.

Joe and Frank eventually decided that if the company was not prepared to regrade them, then they would stop using the computer and revert to the manual method they had used in the past. On the first day of their refusal they received an oral warning for failing to use the computer and they were instructed by their supervisor that they should use the computer in future.

Joe and Frank were convinced that they were entitled not to use the computer and were determined to pressurize the company into giving them the recognition they demanded. They knew that the company needed their computer skills and they believed that if they withheld them, the company would be forced to submit. They therefore continued with their refusal. The company then gave them a written warning for failing to obey a reasonable instruction, as it hoped this would persuade Joe and Frank to resume use of the computer.

When they continued with their refusal, they were given a final written warning for insubordination. On the following day they had a major altercation with their supervisor when he instructed them to use the computer. They informed him that they were sick and tired of being messed around by the company and that the company could do what it liked but they would not use the computers until they were upgraded.

Joe and Frank were summoned to a disciplinary inquiry and after a full hearing were dismissed for insubordination.

The workers at the company were incensed at the dismissal of the chief shop steward and were convinced that the real reason for the dismissal was that the company wanted to get rid of the union. They therefore stopped work and demanded Joe and Franks reinstatement. The company informed them that their stoppage was unprocedural and illegal, and that they would not talk to them until they returned to work. The workers did not heed managements request and began singing and marching in the car park. Its non-union workers approached the company. They demanded safe custody out of the company premises and warned the company that they expected the company to take firm action against what they called the workers illegal mass action. They were frightened and felt that the company was always giving in to the union.

The workers continued with their strike the following day. The companys lawyers suggested that they resolve the dispute by going to court for an injunction ordering the striking workers to return to work. The company gave the workers an ultimatum to return to work. When they did not heed the ultimatum, they were dismissed. The companys attorneys advised the company that they were fully entitled to dismiss illegal strikers and that they would win any action brought by the workers in the Labour Court.

The union was anxious not to lose its membership at the company. It approached the company, and suggested that the strikers be reinstated. The company refused, and the union then suggested that the case of Joe and Frank be taken to an independent arbitrator for determination.

When the company refused, the union launched a consumer boycott against the company with the support of various sympathetic, political and church organizations. Although the strike and boycott caused the company significant harm, it felt morally obliged to stand its ground against the union and its supporters because it believed that their real intention was either to destroy it or take it over.

The workers, on the other hand, believed that the company was determined to rid itself of the union. They felt that Joe and Franks original demand was reasonable and that they had to fight to the bitter end for their jobs (Nel,PS, Kirsten, M; Swanepoel,BJ; Erasmus,BJ; & Jordaan,B, 2016, South African Employment Relations).

Source: Sullivan, L & Whitear-Nel, N. 2000, Labour Law Principles: Labour Law Educational Publications

Answer ALL the questions in this section.

Question 1 (20 Marks)

Identify and discuss the mechanisms that are available to deal with Joe and Franks grievances. Suggest what the company could have been done to prevent the grievance from deteriorating to the extent that it has?

Question 2 (20 Marks)

Critically discuss whether the company was justified in instituting disciplinary measures against the shop steward and Frank for their refusal to continue operating the computer.

Question 3 (20 Marks)

Advise whether the dismissals of Joe, Frank and other union members were for fair reasons? Substantiate your response.

Question 4 (20 Marks)

Differentiate between protected and unprotected strikes and discuss the procedure that should be followed for a strike to be protected at Makelotsomoney (Pty) Ltd, in terms of the Labour Relations Act.

Question 5 (20 Marks)

Once a trade union has a sufficient number of members in a particular workplace, it may approach the employer to gain recognition and apply for organisational rights. Identify and explain what these rights entail. In your response, differentiate clearly between the different categories of representativity and explain how a trade unions level of representation may impact on its organisational rights.