Jtc Written Assignment

Instructions 1. Answer two questions, one from A and one from B. 2. Papers must be word processed with 1 and ½ spacing. 3. Maximum length of each answer is 7 pages. 4. Papers due on 29 June at the office of the JTC no later than 4 pm. 5. Late papers will not be accepted except on good cause shown, as set forth in an affidavit, together with supporting documents.

A. Choose one:

1. Frederick Schneider was the factory manager of Comfy Mattress Company. His employment was terminated in accordance with a company disciplinary rule that provides as follows:

An employee who is absent from work without prior permission is expected to contact his or her supervisor on the first day of absence, and if the absence is longer than two days, to inform the supervisor of the intended date of return and to contact the company weekly until returning to work, if the date of return has been set.

An employee who is absent from work for more than thirty calendar days without permission will be deemed to have resigned from employment. Provided, however, that the employee may be reinstated to employment on good cause shown, after a hearing upon return.

Schneider had been granted permission to take a three-day leave, but he stayed away from work for forty calendar days. He informs you that he had travelled to a remote area of Zambia with his wife to consult a traditional healer and had stayed on for a potentially life-saving treatment of a rare medical condition. He said that he would like to have contacted the company, but no means of telecommunication or post was available. When he presented himself for work, he learned that, pursuant to the above-mentioned rule, he was deemed to have resigned from employment, and his former position had already been filled. After a hearing, the termination of his employment was confirmed.

Mr. Schneider has consulted you for advice and representation.

Prepare the following:

1. Referral to arbitration; 2. Memo to the client: a) explaining the nature of arbitration in terms of the Labour Act and the applicable procedures; b) discussing the issues in the case and the prospects for success; and c) advising as to what must be done to prepare for the hearing. 3. Application for legal representation at the arbitration hearing.

2. Prepare a draft appeal to the Labour Court from one of the two arbitration awards that you have been provided with in hard copy (Award of Arbitrator Angula in Selma Namwithi and Miller Suppliers (Pty) Ltd or Mwanga-Bebi in Abraham Malan v LLB Biofules Namibia (Pty) Ltd), together with a supporting legal memorandum to your client(the employer) explain and evaluating the merits of the appeal.

B. Choose one:

3. Okahandja Butchery (OB) processes a variety of meat products for sale in South Africa and Namiba. It has a collective agreement with the Namibia Food and Allied Workers Union (NAFAU), which it recognised in 1999 as the exclusive representative of all of the company’s employees, excluding management. A new wage agreement was concluded between the parties in May after a protracted strike. The company ‘s Board of Directors is of the opinion that the cost of wages is now too high, especially since many of the employees have worked for the company for more than 15 years and are earning wages well above the entry levels. OB has therefore decided to reorganize its production department, which currently employs 250 factory workers, and to subcontract its distribution and delivery operation, which employs 15 drivers and 20 warehouse employees. On 1 July, OB will send the following notice to NAFAU:

Secretary General Namibia Food and Allied Workers Union

Notice of redundancy

This is to inform you that the Board of Directors of Okahandja Butchery has decided to reorganize the company’s operation in order to conduct business in the most efficient and cost-effective manner. The reorganisation will consist of the following:

1. Closure of the distribution and delivery department; 2. Restructuring of the production department. The restructured department will employ 175 employees. As a result of the above measures, the company will terminate the employment of all employees in the distribution and delivery and production departments on 1 September 2009. Positions in the reorganized production department will be advertised in due course, and affected employees are free to apply for them. OB recognizes its obligation under Section 34 of the Labour Act, 2007 to negotiate with NAFAU concerning the terminations. We therefore propose that a meeting take place for that purpose on 3 July at 10 am in the company’s boardroom. Kindly contact the Office of the Industrial Relations Manager to confirm your availability for the meeting. NAFAU has approached you for advice. The union’s representative informs you that the OB shop steward heard a rumour that OB has invited OB’s General Manager to register a company that will render distribution and deliver services to OB pursuant to a 10-year contract that will provide, among other things, for the lease of OB’s trucks and warehouse to the new company. Prepare a memo for NAFAU covering the following: 1. The rights of the affected employees and the procedures available to NAFAU in terms of the Labour Act to address the current situation; 2. The information that NAFAU should request from the company; 3. Questions that NAFAU could ask the company; 4. Possible subjects for negotiation; 5. Analysis of the legality of the company’s action, and possible actions to be taken on behalf of the employees.

4. Medicentre, a chain of 4 private hospitals, recognized Namibia Health Workers Union (NAHWU) as the exclusive bargaining agent of its 750 employees in 1996. The parties have a collective agreement that stipulates the wages and benefits applicable to each category of employees in the hospitals, and provides a procedure for the discussion of grievances and the resolution of disputes through arbitration. The agreement also provides that Medicentre shall recognize NAHWU as the exclusive bargaining agent of its employees as long as the union represents 50% plus one of the bargaining unit employees. For the past year, Medicentre nurses have been expressing dissatisfaction with NAHWU, and they formed a new union, the Namibia Nurses Union (NANU). This week, NANU sent a request to Medicentre for recognition as the exclusive bargaining agent of its 250 nurses. NANU claims to represent a majority of the nurses. Medicentre has approached you for advice and representation. Medicentre’s MD has informed you that he would like to recognize NANU, if it would be legal to do so. Prepare a memo explaining to Medicentre: a.

the procedures that must be followed in respect of the NANU request;

b.

Your views as to the substantive issues, including the appropriateness of the bargaining unit and questions of majority status,

c. Options available to Medicentre; d. Your recommendation(s) as to Medicentre’s course of action.

Assume that Medicentre, after discussions with NAHWU, decided to refuse NANU’s request for recognition on the ground that it does not represent a majority of employees in an appropriate bargaining unit, and that NANU referred the dispute to the Labour Commissioner.

Prepare an application for Medicentre to be represented by a legal practitioner at the arbitration.