Insubordination in the workplace
- Authors: Chadd, Kevin Mark
- Date: 1999
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3668 , http://hdl.handle.net/10962/d1003183 , Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Description: This thesis traces the development of insubordination in the employment relationship. The essence of the relationship is that the employee, by contracting out his or her productive capacity, occupies a subordinate position. The primary aim is to locate and define the nature of subordination and to investigate how the breach of this position would justify dismissal as interpreted and applied by the courts. This is achieved by investigating dismissal for insubordination under the common law contract of employment, the unfair labour practice jurisdiction and the 1995 Labour Relations Act. Initially the obligation of the employee to be subordinate, an essential term of the contract of employment, is located and defined by using the tests of Control, Organisation and Dominant Impression, which theoretically indicate the true nature of insubordination. Insubordination under the common law is equated with disobedience to the lawful and reasonable instructions of the employer which were given in good faith and fell squarely within the contractual relationship. Insubordination under the unfair labour practice jurisdiction was equated with a challenge to the authority of the employer of which disobedience was a manifestation of such intention. Instructions given by the employer under the unfair labour practice jurisdiction had to be lawful, reasonable and fair. What was fair depended on the surrounding circumstances of the dismissal and a wilful and unreasonable refusal of the employee to obey the valid instructions of the employer justified dismissal Under the 1995 Labour Relations Act it is submitted that insubordination will be dealt with in essentially the same manner as under the previous jurisdiction, subject to the Act's objectives and purposes. The disobedience of the employee is to be tolerated if that employee is attempting to achieve the Act's objectives, and any dismissal as a result of the disobedience could be unfair, because the employer's conduct fiustrates the purpose of the Act. Therefore, the contractual right of the employer to expect subordination from the employee may have been whittled away to such an extent over time that it seems superficial to regard subordination as an essential term of the contract of employment.
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- Date Issued: 1999
The domestic worker some considerations for law reform
- Authors: Meintjes-van der Walt, Lirieka
- Date: 1993
- Subjects: Household employees -- Law and legislation -- South Africa , Black people -- Employment -- South Africa , Women -- Employment -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3683 , http://hdl.handle.net/10962/d1003198 , Household employees -- Law and legislation -- South Africa , Black people -- Employment -- South Africa , Women -- Employment -- South Africa
- Description: This thesis examines ways in which domestic workers in South Africa could be included within the scope of existing industrial legislation. At present the legal position of a work force of 862 000 is regulated by the common law contract of service. Socio-economic factors form the background of this investigation,which first sets out to determine whether the common-law contract of employment is capable of equitably regulating the employment relationship. The fallacy of the assumption that individuals agree on the terms of exchange in the employment contract on the basis of juridical equality, and the tenuous nature of the common-law employment relationship in the case of domestic workers are revealed. In the absence of any current statutory minima the employment contract is used to deprive domestic workers of what little protection they enjoy at common law. The two ways in which the individual employee's conditions of service can be protected from terms favouring the stronger of the two contracting parties are discussed. These are collective bargaining and statutory regulation. Difficulties experienced by domestic workers in respect of collective bargaining, whether they be included under the Labour Relations Act or not, are indicated. Proposals for including domestic workers under the Basic Conditions of Employment Act are evaluated in the light of legislation in the United States of America, Zimbabwe, Swaziland and Namibia. Ways of minimum-wage fixing are investigated, and it is concluded that the provisions of the Wage Act could be adapted for domestic workers. The 'unfair labour practice'concept is examined and the implications of its application for the domestic labour sector evaluated. It is recommended that the concept 'fairness' in the Labour Relations Act should apply to domestic workers, but that a code of practice be drafted to provide conceptions of 'fairness' as guidelines for employment behaviour. It is suggested that the parties refer disputes to mediation before being granted access to a Small Labour Court established for this purpose. In conclusion a draft code of practice is presented, as a basis for negotiation at a forum representative of the major actors in the domestic labour arena.
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- Date Issued: 1993