Large scale retrenchments: an overview of Section 189 A
- Authors: Ah Shene, Lee-Anne Dorothy
- Date: 2012
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Retrenchments
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10237 , http://hdl.handle.net/10948/d1012042 , Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Retrenchments
- Description: This treatise sets out and evaluates recent developments in the area of large-scale retrenchments in South Africa. Dismissals are considered to be a source of great controversy, but more so large scale retrenchments. It was with this in mind that the various role players sought an amendment in 2002 so as to address the concerns by both employers and employees. The applicable legislation, namely section 189A of the Labour Relations Act 66 of 1995, was enacted to ensure the smooth operation of this genre of retrenchments. In this treatise, section 189A will be evaluated. Section 189A stipulates what procedure should be utilized, for dismissals necessitated by operational requirements. The inclusion of this provision was an attempt to address the concerns of both employers and employees. Chapter 1 provides us with an overview with regard to why change with regard to retrenchment legislation was necessary. In Chapter 2 the definition of operational requirements will be unpacked as well as what definition the courts have attached to the term "operational requirements‟, and more importantly the issue relating to substantive fairness. Chapter 3 examines when the applicable provision is triggered, whether or not an employer can stagger retrenchments, the facilitation process, and the regulations pertaining to facilitations. The facilitation process itself and the consultation aspect of the facilitation process are recounted. The meaning of „consultation‟ is evaluated, and it should be noted that section 189 and section 189A are interrelated when topics of consultation are considered. Chapter 4 addresses the instance when no facilitator is appointed and the mechanisms of section 189A(7) and (8); further discussions relating to subsection 13, and 19 will furthermore be evaluated with reference to case law. Chapter 5 sets out the various viewpoints on whether or not section 189A has been successful, and the chapter questions the effectiveness of the provision to provide a realistic view of large-scale retrenchments and whether the enactment thereof was an effective mechanism protecting the rights of employees faced with possible unemployment. The implementation of the training lay off system will be looked at and the statistics of the CCMA will be used as a measure to determine the effectiveness of section 189A. Chapter 6 concludes the thesis, by highlighting lessons learnt from case law for both employees and employers.
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- Date Issued: 2012
Termination of employment contract by operation of law in the education sector: the constitutionality and validity of the deeming provisions
- Authors: Mpati, Lungisa
- Date: 2012
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor contract -- South Africa , Unfair labor practices -- South Africa , Educational law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10200 , http://hdl.handle.net/10948/1600 , Employees -- Dismissal of -- Law and legislation -- South Africa , Labor contract -- South Africa , Unfair labor practices -- South Africa , Educational law and legislation -- South Africa
- Description: Fundamental to any contract of employment is the obligation that rests on an employee not to be absent from work without justification. Under the common law, if an employee did that, the employer would be entitled to dismiss him or her on notice. The International Labour Organization Convention (ILO) 158 of 1982 provides that the employer must have a reason for a dismissal and sets out broad categories or reasons for dismissals . Section 23 of the Constitution of the Republic of South Africa, 1996(Act 108 of 1998) provides that “Everyone has the right to fair labour practices”. Section 33 of the Constitution provides that “Everyone has the right to administrative action that is lawful, reasonable and procedurally fair. The Promotion of Administrative Justice Act 3 of 2000 (PAJA) is designed to give effect to just administrative action. Section 1 and 3 of the Labour Relations Act,1995(Act 66 of 1995)(LRA) require compliance with Article 7 and 8 of the ILO Convention 158 of 1982, when the employment of a worker has been terminated by his or her employer. The LRA protects employees against unfair dismissal. In the Department of Education, Section 14(1)(a) of the Employment of Educators Act, 1998 provides for the discharge of an educator in the event that he or she absents himself or herself from work for a period exceeding 14 consecutive days without the permission of the employer. A similar provision, Section 17(5)(a)(i) of the Public Service Act, 1994 provides for the discharge of an officer other than an educator who absents himself or herself from his or her official duties without the permission of the Head of Department for a period exceeding one calendar month. Section 14(2) of the Employment of Educators Act, 1998 and 17(5)(b) of the Public Service Act,1994 afford an employee who has been deemed discharged to show good cause why he or she should be reinstated. Against this background, the critical legal question is the constitutionality of the deeming provisions. The study will examine the validity of these provisions in relation to the ILO Conventions, Constitution, LRA and PAJA.
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- Date Issued: 2012