The review of a disciplinary finding or sanction in terms of section 158(1)(h) of the labour relations act 66 of 1995
- Authors: August, Joshua Cliff
- Date: 2024-12
- Subjects: Labor discipline , Labor laws and legislation -- South Africa , South Africa.-- Labour Relations Act, 1995
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/68670 , vital:77080
- Description: When an employer subjects an employee to a formal disciplinary process, the employer appoints a presiding officer to whom it cedes either wholly or partly its decision-making powers. Wholly in that the presiding officer would render a finding and impose a sanction. Partly, in that the presiding officer would render a finding and only provide the employer with a recommendation on sanction, which the employer would either accept or reject. The State in its capacity as employer has been afforded the ability to utilise section 158(1)(h) of the Labour Relations Act, 1995 (LRA) to review the decisions of presiding officers appointed over internal disciplinary proceedings. Despite the wording of section 158(1)(h), the courts have restricted its use by employees employed by the State. The courts have held that a State employee would have to utilise the ordinary dispute resolution pathways made available in the LRA to challenge the decisions the State takes in its capacity as an employer. When exercising the prerogative to discipline, all employers, including the State, must primarily comply with the substantive and procedural requirements outlined in Schedule 8 of the LRA. Notwithstanding the primary measure of fairness, the employer’s decision to discipline and dismiss would also be pitched and measured against its adopted internal disciplinary code and procedure document. It has been questioned in a Labour Court judgement whether the State should continue to be afforded the benefit of the section 158(1)(h) review. The Labour Court judgement ventures into the consequences the use of section 158(1)(h) would have on the unfair dismissal dispute resolution pathway afforded by the LRA and proposed that it would be ideal for the State to utilise alternatives when attempting to alter the sanction or finding of its internal presiding officers. The alternatives proposed include the internal review of findings or sanctions, the unilateral substitution of sanctions, increasing sanctions on appeal and the practice of subjecting the employee to a second hearing. Applying the alternatives to the current circumstances and collective bargaining agreements applicable in the public service, the State would not be able to utilise the alternatives, save for subjecting the employee to a second hearing in exceptional circumstances. In all other instances, including convening an internal review, increasing a sanction during an appeal, or unilaterally substituting the sanction would conflict with the prevailing internal disciplinary code and procedure in the public service. In as much as the Labour Court judgment attempts to put into perspective the consequences the use of section 158(1)(h) would have on the subsequent dispute resolution pathways, the State should not be unduly bound by irrational findings or sanctions imposed by presiding officers appointed to preside over its internal disciplinary hearings. , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2024
- Full Text:
- Date Issued: 2024-12
- Authors: August, Joshua Cliff
- Date: 2024-12
- Subjects: Labor discipline , Labor laws and legislation -- South Africa , South Africa.-- Labour Relations Act, 1995
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/68670 , vital:77080
- Description: When an employer subjects an employee to a formal disciplinary process, the employer appoints a presiding officer to whom it cedes either wholly or partly its decision-making powers. Wholly in that the presiding officer would render a finding and impose a sanction. Partly, in that the presiding officer would render a finding and only provide the employer with a recommendation on sanction, which the employer would either accept or reject. The State in its capacity as employer has been afforded the ability to utilise section 158(1)(h) of the Labour Relations Act, 1995 (LRA) to review the decisions of presiding officers appointed over internal disciplinary proceedings. Despite the wording of section 158(1)(h), the courts have restricted its use by employees employed by the State. The courts have held that a State employee would have to utilise the ordinary dispute resolution pathways made available in the LRA to challenge the decisions the State takes in its capacity as an employer. When exercising the prerogative to discipline, all employers, including the State, must primarily comply with the substantive and procedural requirements outlined in Schedule 8 of the LRA. Notwithstanding the primary measure of fairness, the employer’s decision to discipline and dismiss would also be pitched and measured against its adopted internal disciplinary code and procedure document. It has been questioned in a Labour Court judgement whether the State should continue to be afforded the benefit of the section 158(1)(h) review. The Labour Court judgement ventures into the consequences the use of section 158(1)(h) would have on the unfair dismissal dispute resolution pathway afforded by the LRA and proposed that it would be ideal for the State to utilise alternatives when attempting to alter the sanction or finding of its internal presiding officers. The alternatives proposed include the internal review of findings or sanctions, the unilateral substitution of sanctions, increasing sanctions on appeal and the practice of subjecting the employee to a second hearing. Applying the alternatives to the current circumstances and collective bargaining agreements applicable in the public service, the State would not be able to utilise the alternatives, save for subjecting the employee to a second hearing in exceptional circumstances. In all other instances, including convening an internal review, increasing a sanction during an appeal, or unilaterally substituting the sanction would conflict with the prevailing internal disciplinary code and procedure in the public service. In as much as the Labour Court judgment attempts to put into perspective the consequences the use of section 158(1)(h) would have on the subsequent dispute resolution pathways, the State should not be unduly bound by irrational findings or sanctions imposed by presiding officers appointed to preside over its internal disciplinary hearings. , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2024
- Full Text:
- Date Issued: 2024-12
Substantive equality and the individual right to affirmative action
- Authors: Bothma, Deon
- Date: 2025-04
- Subjects: Affirmative action programs -- South Africa , Labor laws and legislation -- South Africa , Equality -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/72063 , vital:79182
- Description: The value of- and right to equality is important in all democracies. Equality discourse is particularly important in South Africa considering its unequal colonial and apartheid past. For centuries, certain categories of people have been excluded from fully participating in the economy and in social life while others benefitted substantially. The advent of democracy has called for a new constitutional order and the rule of law with a human rights focus underpinned by the values of non-racialism, freedom, and equality. Dismantling the architecture of oppression would not be possible without placing positive duties on the state and private individuals to redistribute economic and other opportunities from which those previously disadvantaged by unfair discrimination had been excluded. The right to equality is a contested concept, and the holistic understanding and application of formal and substantive notions of equality are often misunderstood and misapplied in the courts, business, political debates, and academia. This treatise focuses on the constitutional right to equality, with a specific focus on affirmative action measures and their application in the labour market and employment relations. The conventional notion of equality in the form of formal equality, that is not to be discriminated against, seems to be a stumbling block to the achievement of equality, since it often neglects the duty to provide in the form of substantive equality and positive measures. The Employment Equity Act, which has been enacted to give effect to the constitutional right to equality, distinctly provides provisions regulating the prohibition against unfair discrimination and the promotion of positive measures through affirmative action provisions. Affirmative action provisions in the Employment Equity Act have been a contentious matter among all races, men and women, and people with disabilities who contend for work opportunities in a labour market plagued by high levels of unemployment. Equality jurisprudence has been developing since the advent of democracy under a constitutional order and the subsequent promulgation of the Labour Relations Act and the Employment Equity Act. However, the body of case law has not been consistently developed and has resulted in more divergence in debates around equality provisions in various pieces of legislation. The divergent approaches to equality adjudication have necessitated a critical review of the equality provisions in the Bill of Rights and national employment legislation, and furthermore, an evaluation and critique of the application of relevant legislative provisions. Finally, to contribute to the existing body of literature, recommendations will be advanced for consideration by courts and other bodies empowered to decide disputes involving unfair discrimination and affirmative action. , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2025
- Full Text:
- Date Issued: 2025-04
- Authors: Bothma, Deon
- Date: 2025-04
- Subjects: Affirmative action programs -- South Africa , Labor laws and legislation -- South Africa , Equality -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/72063 , vital:79182
- Description: The value of- and right to equality is important in all democracies. Equality discourse is particularly important in South Africa considering its unequal colonial and apartheid past. For centuries, certain categories of people have been excluded from fully participating in the economy and in social life while others benefitted substantially. The advent of democracy has called for a new constitutional order and the rule of law with a human rights focus underpinned by the values of non-racialism, freedom, and equality. Dismantling the architecture of oppression would not be possible without placing positive duties on the state and private individuals to redistribute economic and other opportunities from which those previously disadvantaged by unfair discrimination had been excluded. The right to equality is a contested concept, and the holistic understanding and application of formal and substantive notions of equality are often misunderstood and misapplied in the courts, business, political debates, and academia. This treatise focuses on the constitutional right to equality, with a specific focus on affirmative action measures and their application in the labour market and employment relations. The conventional notion of equality in the form of formal equality, that is not to be discriminated against, seems to be a stumbling block to the achievement of equality, since it often neglects the duty to provide in the form of substantive equality and positive measures. The Employment Equity Act, which has been enacted to give effect to the constitutional right to equality, distinctly provides provisions regulating the prohibition against unfair discrimination and the promotion of positive measures through affirmative action provisions. Affirmative action provisions in the Employment Equity Act have been a contentious matter among all races, men and women, and people with disabilities who contend for work opportunities in a labour market plagued by high levels of unemployment. Equality jurisprudence has been developing since the advent of democracy under a constitutional order and the subsequent promulgation of the Labour Relations Act and the Employment Equity Act. However, the body of case law has not been consistently developed and has resulted in more divergence in debates around equality provisions in various pieces of legislation. The divergent approaches to equality adjudication have necessitated a critical review of the equality provisions in the Bill of Rights and national employment legislation, and furthermore, an evaluation and critique of the application of relevant legislative provisions. Finally, to contribute to the existing body of literature, recommendations will be advanced for consideration by courts and other bodies empowered to decide disputes involving unfair discrimination and affirmative action. , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2025
- Full Text:
- Date Issued: 2025-04
Ammendments to the labour law relations act 66 of 1995 to addressing violent and intractable strikes
- Authors: Gavu, Siphelele
- Date: 2024-12
- Subjects: Labor laws and legislation -- South Africa , Strikes and lockouts -- Law and legislation -- South Africa , Labor disputes -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/68692 , vital:77082
- Description: The main research question for this treatise is to determine whether the South African legal framework provides effective regulations in curbing violent and intractable strikes. To answer the research question, the research explored the evolution of the right to strike in South Africa, analysing its socio-economic impact and the transition from a repressive regime to a democratic one. The study assessed international, regional, and national legal frameworks, focusing on the right to strike and its regulation. Amendments to the LRA, including introducing rules for picketing, mandatory secret ballots for strikes, and advisory arbitration for dysfunctional strikes, were evaluated. The findings indicate that while these amendments represent a significant step in addressing the issues of violent strikes in an employment context, their effectiveness is limited. Persistent challenges include the frequent disregard by trade unions and their members for legal measures. This reflects the deeper socio- economic and political issues. The study suggests that the effectiveness of these legislative changes is hindered by ongoing social and economic inequalities, highlighting the need for broader socio-political solutions beyond legislative amendments. This comprehensive analysis explains the complexities surrounding strike actions in South Africa and the balance between upholding labour rights and maintaining workplace discipline and order. , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2024
- Full Text:
- Date Issued: 2024-12
Ammendments to the labour law relations act 66 of 1995 to addressing violent and intractable strikes
- Authors: Gavu, Siphelele
- Date: 2024-12
- Subjects: Labor laws and legislation -- South Africa , Strikes and lockouts -- Law and legislation -- South Africa , Labor disputes -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/68692 , vital:77082
- Description: The main research question for this treatise is to determine whether the South African legal framework provides effective regulations in curbing violent and intractable strikes. To answer the research question, the research explored the evolution of the right to strike in South Africa, analysing its socio-economic impact and the transition from a repressive regime to a democratic one. The study assessed international, regional, and national legal frameworks, focusing on the right to strike and its regulation. Amendments to the LRA, including introducing rules for picketing, mandatory secret ballots for strikes, and advisory arbitration for dysfunctional strikes, were evaluated. The findings indicate that while these amendments represent a significant step in addressing the issues of violent strikes in an employment context, their effectiveness is limited. Persistent challenges include the frequent disregard by trade unions and their members for legal measures. This reflects the deeper socio- economic and political issues. The study suggests that the effectiveness of these legislative changes is hindered by ongoing social and economic inequalities, highlighting the need for broader socio-political solutions beyond legislative amendments. This comprehensive analysis explains the complexities surrounding strike actions in South Africa and the balance between upholding labour rights and maintaining workplace discipline and order. , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2024
- Full Text:
- Date Issued: 2024-12
The application of section 197 of the labour relations act 66 of 1995 on termination of service-level agreements
- Mthembu-Luthuli, Nomzamo Vuyiswa
- Authors: Mthembu-Luthuli, Nomzamo Vuyiswa
- Date: 2025-04
- Subjects: Employees -- Dismissal of -- South Africa , Labor laws and legislation -- South Africa , Labor disputes -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/72168 , vital:79194
- Description: Striking a balance between the rights of employees to fair labour practices, the primary objective of the Labour Relations Act1 to advance economic development which essentially entails ensuring job security versus employers’ rights to fair labour practices has caused a significant hurdle in the employment and industrial law arena. In an endeavour to bridge this gap, section 197 of the LRA was legislated to ensure the job security of the employees during the transfer of businesses by one employer to another, whilst also ensuring smooth transfer and stability of businesses during such transfers. Section 197 of the LRA suggests that employees are automatically transferred to a new employer in the event of a business being transferred as a going concern in accordance with section 197 of the LRA.2 1 66 , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2025
- Full Text:
- Date Issued: 2025-04
- Authors: Mthembu-Luthuli, Nomzamo Vuyiswa
- Date: 2025-04
- Subjects: Employees -- Dismissal of -- South Africa , Labor laws and legislation -- South Africa , Labor disputes -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/72168 , vital:79194
- Description: Striking a balance between the rights of employees to fair labour practices, the primary objective of the Labour Relations Act1 to advance economic development which essentially entails ensuring job security versus employers’ rights to fair labour practices has caused a significant hurdle in the employment and industrial law arena. In an endeavour to bridge this gap, section 197 of the LRA was legislated to ensure the job security of the employees during the transfer of businesses by one employer to another, whilst also ensuring smooth transfer and stability of businesses during such transfers. Section 197 of the LRA suggests that employees are automatically transferred to a new employer in the event of a business being transferred as a going concern in accordance with section 197 of the LRA.2 1 66 , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2025
- Full Text:
- Date Issued: 2025-04
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