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South African labour law and conflict resolution: towards a theoretical critique

  • Authors: Jooste, Nico
  • Date: 2016
  • Subjects: Labor disputes -- South Africa , Conflict management -- South Africa , Mediation -- South Africa , Labor laws and legislation -- South Africa
  • Language: English
  • Type: Thesis , Masters , MPhil
  • Identifier: http://hdl.handle.net/10948/7417 , vital:21357
  • Description: The intention of this treatise is to reflect on the concept, as well as on the theory, of conflict resolution and to investigate whether the mechanisms of true conflict resolution are afforded within the structures and instruments provided for by the South African Labour Relations Act (66 of 1995). The Act aims to give effect to one of its primary purpose of advancing labour peace by attempting to promote the effective resolution of labour disputes through a very sophisticated system of dispute resolution. What is of great significance is that The Commission for Conciliation, Mediation and Arbitration (CCMA) has been experiencing an increasingly high rate of disputes referred to it since its inception in 1996. In my review I established that the dispute resolution system is a construction of rules and statutes which concentrates on rights, rather than on conflict management. However, rights only imperfectly reflect basic human needs, which continue to dominate human behaviour mechanisms that indeed facilitate processes and guidelines of resolving labour disputes, but fail to acknowledge and make provision for the resolution of a latent or manifest conflict. The instruments afforded by the Labour Relations Act (66 of 1995) fail to explore and entertain the needs most relevant and significant to the perception of social conflicts such as security, identity, personal development and recognition as suggested by conflict theorists and scholars. It also fails to acknowledge that parties to a dispute undergo psychological changes that could flow over to community changes and group dynamics as the parties become polarised and become more contentious as the conflict escalates. My review gave more substance to my original assumption that the current South African labour dispute resolution system does not harmonize itself with its own objective of promoting true labour peace.
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  • Date Issued: 2016

Workplace discipline in the public education sector

  • Authors: Loliwe, Fezeka Sister
  • Date: 2014
  • Subjects: Labor laws and legislation -- South Africa , Labor discipline -- South Africa , Dispute resolution (Law) -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:10290 , http://hdl.handle.net/10948/d1020091
  • Description: Discipline is crucial in the provision of quality public service work. This is because most citizens are serviced through the public service work. Adhering to rules and orders, exercise of self control and the ability to put needs of others over one’s own needs are fundamental aspects of discipline. Every workplace has its own pieces of legislation that are used as a guide on expected conduct as well as a tool to deal with failure to adhere to the outlined pieces of legislation governing the conduct in the workplace. There are institutions in place that deal with the crafting of the pieces of legislation which clearly outline the manner in which both the employer and employee should conduct themselves as well as rights of both parties as they interact in the employment relationship. The existing pieces of legislation as well as their implementation and relevance in this era needs to be closely scrutinised and critique with proposals within the prescripts of legislation is necessary as some pieces of legislation seem to be conclusive, thereby undermining procedures followed when dealing with cases of misconduct. In any disciplinary process, the sanction should be in line with the process as it has unfolded and not be influenced by how a piece of legislation is crafted. The Public Service Act, Employment of Educators’ Act and the Labour Relations Act 66 of 1995 are key statutes in dealing with discipline in public education. Sanctions for misconduct are dependent on the gravity of the misconduct. In order to discipline educators, sections 17 and 18 of the Employment of Educators Act are used as guides on processes and procedures to be followed.
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  • Date Issued: 2014

Substantive equality and proof of employment discrimination

  • Authors: Loyson, Madeleine
  • Date: 2009
  • Subjects: Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:10208 , http://hdl.handle.net/10948/1059 , Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
  • Description: This dissertation is a journey through the legislative changes and case law in order to analyse and evaluate the changing nature of South African jurisprudence in respect of the notions of equality, discrimination and affirmative action and the manner in which these issues are proved and dealt with in our courts. It focuses firstly on the emergence of the post-Wiehahn labour laws and the developing jurisprudence concerning discrimination in South Africa towards the end of a long period of isolation from the international world. It witnesses the growing cognizance which was taken of international guidelines and their slow and gradual incorporation into our jurisprudence before the institution of the new democratic government, in the days when the country was still firmly in the grip of a regime which prided itself on its discriminatory laws. It also deals in some depth with the new laws enacted after the first democratic government was installed, especially in so far as the Constitution was concerned. The first clutch of cases dealing with discrimination which were delivered by the Constitutional Court and their effects on decisions of the labour courts thereafter, are dealt with in great detail, indicating how important those judgments were and still are ten years later. A special chapter is devoted to the Harksen case, still a leading authority on how to deal with allegations of unfair discrimination. Having traversed several of the judgments of the labour courts after Harksen, several observations are made in the conclusion of the study which, it is hoped, summarize the major areas of concern in respect of the task of testing claims of unfair discrimination arising in our Courts.
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  • Date Issued: 2009

Regulation of minimum wages and minimum conditions of employment in the citrus industry in the Gamtoos river valley

  • Authors: Colesky, Rienette
  • Date: 2019
  • Subjects: Labor laws and legislation -- South Africa , South Africa -- Basic Conditions of Employment Act, 1997 Minimum wage -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/38002 , vital:34279
  • Description: Labour legislation has been reformed to protect and to promote the right of employers and employees after 1994. It has been many years since the introduction of these acts and although there is a continuous process of refining these acts the most important matter is whether these acts have a real impact on the employment for which it was intended. The focus of this study is to particularly look at agricultural labour and to examine the effect the introduction of minimum wages and minimum conditions of employment had on agricultural labour in the Gamtoos River Valley. It was found that there is great compliance to labour legislation. Third party certifications that influence the accessibility of overseas markets enhance compliance. Labour comprises a large pool of atypical workers who serves the need for flexibility in the industry. Due to the temporary nature of these workers, decent work is not achieved. A smaller core group of skilled workers is employed on a permanent basis. Employers invest in these employees. The nature of the workforce limits union activities and no labour is outsourced in the Valley.
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  • Date Issued: 2019

The consequences of unlawful and prohibited contracts of employment in labour law

  • Authors: Salim, Raya Said
  • Date: 2009
  • Subjects: Contracts for work and labor -- South Africa , Labor contract -- South Africa , Labor laws and legislation -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:10222 , http://hdl.handle.net/10948/1041 , Contracts for work and labor -- South Africa , Labor contract -- South Africa , Labor laws and legislation -- South Africa
  • Description: The purpose of having labour laws in South Africa is to regulate employment contracts and the relationship between the employer and the employee. Once a legally binding contract comes into being the Labour Relations Act of 1995 automatically applies alongside the Basic Conditions of Employment Act and various other labour legislations. Common law rules play a vital role in the formation of an employment contract. For an ordinary contract to have legal effect, four basic requirements need to be met. Briefly, parties to the contract must have reached consensus, parties’ performance of their obligations must be possible, the conclusion and objectives of the contract must be lawful and that both parties to the contract must have the necessary capacity to conclude the contract. Once these requirements have been met one is said to have concluded a valid contract. Nevertheless for the purposes of this study, we focus specifically on the employment contract. Aside from the general common law requirements for a valid contract, for an employment contract to be recognised and protected by labour legislations, it is important to distinguish an employee from an independent contractor since only the former enjoys legal remedies afforded by labour law. Common law contractual rights and duties automatically apply once an employment relationship is established in addition to the rights and duties specified in the contract itself. Common law rules regarding morality plays a major role in our modern day societies, as shall be discussed the workforce has not been left untouched by this important principle. Morality greatly influences a society’s view concerning acceptable and unacceptable behaviour or practices. It goes without saying that a contract should not be contrary to the moral views of the society in which the parties find themselves in. A contract can be complying with all the statutory requirements for a valid employment contract; however it may at the same time be tainted with illegality as the object of performance is considered immoral in the society such as an employment contract to perform prostitution. Conversely, another scenario may involve a party to an employment contract who is a child below the age of 15 years old; the contract is invalid as it contravenes section 43 of the Basic Conditions of Employment Act. Despite clear statutory prohibitions this practice may be perfectly acceptable in the eyes and minds of the society. The purpose of this study is to evaluate prohibited and unlawful contracts of employments, how the law (both common law and statutory law) treats such contracts in the sense that; whether they are protected or not and to what extent these laws have been developed to influence modern attitudes concerning such contracts. One stark example is illustrated through case law where the court had to determine the validity of an employment contract concluded between an employer and an illegal immigrant.
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  • Date Issued: 2009

Non-standard employment in terms of the labour relations act

  • Authors: Tatchell, Veronique
  • Date: 2020
  • Subjects: Labor laws and legislation -- South Africa , South Africa -- Labour Relations Act, 1995 , Flexible work arrangements -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/49027 , vital:41594
  • Description: Historically, employers utilised non-standard or atypical forms of employment in order to avoid statutory obligations in respect of these employees, and in turn justify differential treatment of said employees.1 As a result, non-standard employees were not on the same footing as their permanent counterparts. They were not remunerated on the same level, were not privy to advancement and training opportunities, and did not enjoy a sense of job security due to the ease at which their employment could be terminated, rendering them a vulnerable class of workers.2 There was pandemonium in the employment sphere of society due to the abusive practices faced by employees employed in terms of Temporary Employment Services, this was accompanied by a call to ban labour broking. The legislature, while acknowledging the important role that this form of employment plays in the labour market and broader economy, opted for increased regulation of this and other types of non-standard employment; instead of an outright ban. As a result thereof, the Labour Relations Act3 was amended by the Labour Relations Amendment Act,4 with a view of improving the regulation and protection of employees engaged in these forms of non-standard or atypical employment. This study seeks to determine whether the amendments have achieved the purpose of enhancing the job security of these employees.
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  • Date Issued: 2020

The unfair labour practice relating to benefits

  • Authors: Timothy, Andrea Francis
  • Date: 2015
  • Subjects: Unfair labor practices -- South Africa , Employee fringe benefits -- South Africa , Labor laws and legislation -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:10259 , http://hdl.handle.net/10948/d1021157
  • Description: The meaning of the term “benefits” in the context of unfair labour practice jurisprudence, having previously been unsettled for more than a decade, has now been settled by the Labour Appeal Court in the Apollo.1 Prior to Apollo,2 our courts have struggled to adopt a stance to maintain the distinction between disputes of rights and disputes of interest as separate compartments. The prevalent view at that stage was that, in order for an employee to lodge a dispute at the CCMA or Bargaining Council the employee would have to show that he or she had a right to the benefit that arises by virtue of contract, statute or collective agreement, failing which the CCMA or a Bargaining Council would not have the jurisdiction to determine the dispute, in which case it may constitute a dispute of interest and the employee will have to embark on an industrial action to secure a benefit. Apollo3 endorsed a previous decision of the Labour Court,4 i.e. by placing “benefits” into the following two categories: (1) Where the dispute is about a demand by employees concerning their benefits, it can be settled by way of industrial action. (2) Where the dispute concerns the fairness of the employer's conduct, it must be settled by way of adjudication or arbitration. As a result of the above categorisation, the CCMA or Bargaining Council may adjudicate a dispute relating to benefits where there is a pre-existing benefit and the employer refuses to comply with its obligation towards the employer in that regard. It may also adjudicate disputes relating to the provision of a car allowance (i.e. where the employer retains the discretion to grant or withhold the allowance) and disputes relating to the provision of bonuses (i.e. where the employer retains the discretion to grant or withhold the bonus). In this treatise, I set out the history and development of the legislation in relation to the concept of “benefits” (in the context of unfair labour practice) so as to understand how our Labour Appeal Court has now come to settle the issues above.
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  • Date Issued: 2015

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 legal protection of temporary employees

  • Authors: Gillespie, Neil
  • Date: 2013
  • Subjects: Employee rights -- South Africa , Labor laws and legislation -- South Africa , Labor contract -- South Africa , Industrial relations -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:10287 , http://hdl.handle.net/10948/d1019793
  • Description: This paper is divided into two distinct sections. The first being an analysis of the legal protection of temporary employees as things currently stand. It deals with the various labour laws that currently regulate temporary employment as well as the temporary employment contract and the common-law. The second section summarises and analyses the provisions of the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill as they apply to fixed-term employees. Temporary employees are protected by the general protection extended to all employees in terms of section 23(1) of the Constitution of the Republic of South Africa, 1996, guaranteeing all employees the “right to fair labour practice”. The Labour Relations Act has as one of its main objectives to give effect to and regulate the fundamental rights contained in the Constitution. Thus the Labour Relations Act must not only give effect to constitutional rights but it must also ensure that it in no way unreasonably or unjustly denies or limits constitutional rights. Temporary employees have a number of labour laws protecting their interests. Where the provisions of the Basic Conditions of Employment Act, a Bargaining Council Agreement or a Sectoral Determination do not apply the employee will rely on the terms of the fixed-term employment contract and thereafter the common law for protection. The only protection offered to temporary employees contained in the Labour Relations Act is in section 186(1)(b), where a dismissal is defined to include the non-renewal of temporary contracts of employment where there is a reasonable expectation of renewal on the same or similar terms. This provision has proved to be highly controversial in that it does not expressly cater for temporary employees who harbour reasonable expectations of indefinite employment. An analysis is made of the most important cases relating to section 186(1)(b). The second section unpacks and critically analyses the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill which have been long in the offing and when they are finally enacted, will bring with them sweeping changes for atypical employment . The amendments will drastically change the way employers make use of fixed-term employees as well as the way in which Temporary Employment Services may conduct business if they are in fact able to keep working at all. There is very little literature of substance written about the Labour Relations Amendment Bill as it applies to atypical employment. The fact that the proposed amendments have changed so many times over such a long period of time might have deterred many writers from investing time and effort in attempts to analyse and summarise the amendments. Articles posted on the internet are in the main short and have very little content. No books were found with any discussion that pertains to the amendments. The amendments divide employees involved in atypical employment into two different categories. These categories consist of employees earning above the threshold in terms of section 6(3) of the Basic Conditions of Employment Act and those earning below this threshold. All fixed-term employees may rely on the provisions of section 186 of the Labour Relations Act. Employees earning below the threshold are considered to be the most vulnerable and have been afforded additional protections in terms of sections 198(A), (B) and (C). Issues surrounding Temporary Employment Services and fixed-term employees have been very divisive and have been the topics of heated debate at all levels of Industrial Relations for a long time. Discussions regarding the use of the services of Temporary Employment Services can be highly emotive, with Temporary Employment Services being accused of committing wideThis paper is divided into two distinct sections. The first being an analysis of the legal protection of temporary employees as things currently stand. It deals with the various labour laws that currently regulate temporary employment as well as the temporary employment contract and the common-law. The second section summarises and analyses the provisions of the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill as they apply to fixed-term employees. Temporary employees are protected by the general protection extended to all employees in terms of section 23(1) of the Constitution of the Republic of South Africa, 1996, guaranteeing all employees the “right to fair labour practice”. The Labour Relations Act has as one of its main objectives to give effect to and regulate the fundamental rights contained in the Constitution. Thus the Labour Relations Act must not only give effect to constitutional rights but it must also ensure that it in no way unreasonably or unjustly denies or limits constitutional rights. Temporary employees have a number of labour laws protecting their interests. Where the provisions of the Basic Conditions of Employment Act, a Bargaining Council Agreement or a Sectoral Determination do not apply the employee will rely on the terms of the fixed-term employment contract and thereafter the common law for protection. The only protection offered to temporary employees contained in the Labour Relations Act is in section 186(1)(b), where a dismissal is defined to include the non-renewal of temporary contracts of employment where there is a reasonable expectation of renewal on the same or similar terms. This provision has proved to be highly controversial in that it does not expressly cater for temporary employees who harbour reasonable expectations of indefinite employment. An analysis is made of the most important cases relating to section 186(1)(b). The second section unpacks and critically analyses the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill which have been long in the offing and when they are finally enacted, will bring with them sweeping changes for atypical employment . The amendments will drastically change the way employers make use of fixed-term employees as well as the way in which Temporary Employment Services may conduct business if they are in fact able to keep working at all. There is very little literature of substance written about the Labour Relations Amendment Bill as it applies to atypical employment. The fact that the proposed amendments have changed so many times over such a long period of time might have deterred many writers from investing time and effort in attempts to analyse and summarise the amendments. Articles posted on the internet are in the main short and have very little content. No books were found with any discussion that pertains to the amendments. The amendments divide employees involved in atypical employment into two different categories. These categories consist of employees earning above the threshold in terms of section 6(3) of the Basic Conditions of Employment Act and those earning below this threshold. All fixed-term employees may rely on the provisions of section 186 of the Labour Relations Act. Employees earning below the threshold are considered to be the most vulnerable and have been afforded additional protections in terms of sections 198(A), (B) and (C).
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  • Date Issued: 2013

Substantive fairness in dismissals based on operational requirements

  • Authors: Hokwana, Tina
  • Date: 2018
  • Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor discipline -- Law and legislation -- South Africa Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: http://hdl.handle.net/10948/30331 , vital:30931
  • Description: This treatise interrogates the concept of substantive fairness in dismissals based on operational requirements and commences with the background and rationale to the study. It intends to achieve by virtue of specific research questions identified in the first chapter. The second chapter focuses on a discussion defining the term operational requirements and the circumstances in which employers have sought to justify dismissals based on operational requirements together with the courts’ interpretation of the term. Following an in-depth look at the South African courts’ interpretation of operational requirements, the third chapter analyses the jurisprudential development of the law of substantive fairness and assesses how the courts have applied statutory provisions relevant to operational requirement dismissals. The third chapter is then followed by a discussion on the aspects relating to selection criteria as pronounced by South African labour-law jurisprudence and deals specifically with the concept of LIFO and the employment universe. The fourth chapter also raises the various forms of fair and objective selection criteria, as well as the concept of bumping in light of the Employment Equity Act. The final chapter concludes that the primary areas requiring reform relate to the test for substantive fairness that does not include a proportionality analysis to weigh up the competing interests of the employer and the employees. The treatise further concludes with recommendations in dealing with dismissals based on operational requirements.
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  • Date Issued: 2018

Legal representation at internal disciplinary enquiries: the CCMA and bargaining councils

  • Authors: Webb, Brandon
  • Date: 2015
  • Subjects: Right to counsel -- South Africa , Dispute resolution (Law) -- South Africa , Labor laws and legislation -- South Africa , South Africa -- Commission for Conciliation, Mediation, and Arbitration
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:10299 , http://hdl.handle.net/10948/d1021066
  • Description: The right to legal representation at internal disciplinary hearings and arbitration proceedings at the Commission for Conciliation, Mediation and Arbitration (CCMA), and bargaining councils, where the reason for dismissal relates to misconduct or incapacity is a topic that is raised continuously and often debated. Despite no amendments to labour legislation pertaining to the issue at hand there was however a recent Supreme Court of Appeal judgment. This judgment alters one’s view and clarifies the uncertainties that were created around Rule 25 of the CCMA rules, it also brings a different perspective to the matter, but it will however continue to ignite significant interest. There is no automatic right to legal representation at disciplinary hearings, at the CCMA, and at bargaining councils where disputes involve conduct or capacity and this is the very reason why it is a contentious matter for all parties to grapple with. The dismissal of an employee for misconduct may not be significant to the employer, but the employee’s job is his major asset, and losing his employment is a serious matter to contend with. Lawyers are said to make the process legalistic and expensive, and are blamed for causing delays in the proceedings due to their unavailability and the approach that they adopt. Allowing legal representation places individual employees and small businesses on the back foot because of the costs. Section 23(1) of the Constitution of the Republic of South Africa, Act 108 of 1996, provides everyone with the right to fair labour practices, and section 185 of the Labour Relations Act 66 of 1995 gives effect to this right and specifies, amongst others, that an employee has the right not to be unfairly dismissed. At internal disciplinary hearings, the Labour Relations Act 66 of 1995 is silent as to what the employee’s rights are with regards to legal representation and the general rule is that legal representation is not permitted, unless the employer’s disciplinary code and procedure or the employee’s contract allows for it, but usually an employee may only be represented by a fellow employee or trade union representative, but not by a legal representative. In MEC: Department of Finance, Economic Affairs and Tourism, Northern Province v Mahumani, the Supreme Court of Appeal held that there exists no right in terms of the common law to legal representation in tribunals other than in courts of law. However, both the common law and PAJA concede that in certain situations it may be unfair to deny a party legal representation. Currently the position in South Africa is that an employee facing disciplinary proceedings can put forward a request for legal representation and the chairperson of the disciplinary hearing will have the discretion to allow or refuse the request. In Hamata v Chairperson, Peninsula Technikon Internal Disciplinary Committee, the Supreme Court of Appeal found that the South African law does not recognise an absolute right to legal representation in fora other than courts of law, and a constitutional right to legal representation only arises in respect of criminal matters.
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  • Date Issued: 2015

The application of the hearsay rule in labour law proceedings

  • Authors: Hanekom, Jurgens Philip
  • Date: 2003
  • Subjects: Labor courts -- South Africa , Evidence, Hearsay -- South Africa , Evidence (Law) -- South Africa , Labor laws and legislation -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:11053 , http://hdl.handle.net/10948/300 , Labor courts -- South Africa , Evidence, Hearsay -- South Africa , Evidence (Law) -- South Africa , Labor laws and legislation -- South Africa
  • Description: To know your law and not to understand it is like a legal barbarian lost in the battlefield of legal theory. A proper and thorough understanding of the law of evidence and hearsay evidence in particular, is of paramount importance not only for lawyers but also for persons who regard themselves as labour law experts. It takes a great deal of experience before a lawyer truly becomes confident with the law of evidence and its application. The only way one becomes good at it is firstly to know the law. (Where does it come from and why is it there?) Then one must get to understand it by looking at examples and apply it in practice. Only then will a person gain practical experience. The aim of this treatise is not to try and educate experienced lawyers. This article is aimed at those that need some motivation to pursue their journey in the labour law process. Remember we all assume that lawyers know and understand their subject until they proof the contrary. In this work I shall try to highlight the importance of the law of evidence in labour law proceedings. Firstly the meaning of the law of evidence and hearsay evidence is considered. Further emphasis will be on the approach and application of the law of evidence, and in particular the hearsay rule, in labour law proceedings.
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  • Date Issued: 2003

Constructive dismissal in labour law

  • Authors: Van Loggerenberg, Johannes Jurgens
  • Date: 2003
  • Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:11054 , http://hdl.handle.net/10948/301 , Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa
  • Description: The history of constructive dismissals in South Africa imitated from the English law in 1986, when an employee successfully challenged the employer on this particular concept after an incident relating a forced resignation. From the literature it is clear that constructive dismissal, as we know it today, originated from our English counterparts. Being a relatively new concept, the South African labour laws caught on at a rapid pace. The leading case on which the South African authors leaned towards was the English case of Woods v WM Car Services (Peterborough). In South Africa constructive dismissals were given statutory force in unfair dismissal law and is defined as the coerced or forced termination of a contract of employment resultant in from the conduct of the employer. There are many forms in which constructive dismissals would postulate that could justify an employee to lay claim to constructive dismissal. Examples thereof are the amendment of the contract of employment, rude language and sexual harassment. It is eminent that certain elements should be present before an employee would have reasonable prospects of succeeding with such a claim. Constructive dismissal comes into the equation when an employer behaves in such a manner that eventually and ultimately leads to the employee, being the receiving party, in the employment relationship, to terminate the employment contract. This termination must be the direct result of the conduct of the employer that irreparably frustrated the relationship and made it impossible for the employee to remain in the service of the employer in question. It appears that the courts have taken a firm stance on coerced or forced resignation, in its various forms tantamount to breach of contact, that any sufficiently unreasonable conduct by an employer may justify that the employee to terminate services and lay claim to the fact that he had been constructively dismissed. It needs to be mentioned that the fact that the mere fact that the employer acted in an unreasonable manner would not suffice and it is up to the employee to prove how the conduct of the employer justified the employee to leave and claim that the employer’s conduct resulted in a material or fundamental beach of the employment contract. In dealing with the contingency of the concept of constructive dismissals it has been expressly provided for in numerous systems of labour law. As is seen herein, a constructive dismissal consists in the termination of the employment contract by reason of the employee’s rather than the employer’s own immediate act. The act of the employee is precipitated by earlier conduct on the part of the employer, which conduct may or may not be justified. Various authors and academics endeavoured to defined constructive dismissal and all had the same or at least some of the elements present, to justify constructive dismissal. The most glaring element being the termination of employment as a result of the any conduct that is tantamount to a breach going to the root of the relationship by the employer, that frustrated the relationship between the employer and the employee and rendered it irreparable. The employee resigns or repudiates the employment contract as a result of the employer normally not leaving the employee any other option but to resign. This can also be termed as coerced or forced resignations and are commonly better known as “constructive dismissal”. The employee is deemed to have been dismissed, even though it is the employee who terminated the employment contract. The most important element to mention is the employee terminated the employment contract, ie resigned yet this is regarded as a dismissal, it is however for the employee to first lay a claim at the proper authority and the employee must prove his / her allegation before it can be a constructive dismissal. As will become clear, that the onus of proof is on the employee to show that the termination of employment resulted from the conduct of the employer. Equally true as in all cases of constructive dismissal, including cases of sexual harassment, being a ground for constructive dismissal, the employee must prove that to remain in service would have been unbearable and intolerable. Sexual harassment is one of the most difficult forms of constructive dismissals, in many cases there are no witnesses and the employee either “suffers in silence or opt to place her dignity at stake to prove her case. It seems as though the test is to determine if the employer’s conduct evinced a deliberate and oppressive intention to have the employment terminated and left the employee with only one option that of resignation to protect her interests. Employees have a right to seek statutory relief and needs to be protected. If a coerced or forced resignation had taken place irrespective whether the employee resigned or not. It is against this back drop that constructive dismissals was given legality and are now recognized as one of the four forms of dismissals in terms of the Act.
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  • Date Issued: 2003

The perceptions of educators, in the Queenstown education district, of the labour dispute resolution system

  • Authors: Rataza, Themba Theophilus
  • Subjects: Labor disputes -- South Africa -- Queenstown , Labor laws and legislation -- South Africa
  • Language: English
  • Type: Thesis , Masters , MA
  • Identifier: vital:9434 , http://hdl.handle.net/10948/d1020542
  • Description: The objective of this study is to conduct a survey concerning the perceptions of educators in the Queenstown education district of the labour dispute resolution system. The education department is one of the biggest departments in the Eastern Cape’s Provincial Administration system. The likelihood of disputes is high when there are many employees. The focus of the study therefore is on how educators perceive the role of the department in terms of ensuring that labour disputes with the department are resolved efficiently and speedily. The advent of a democratic dispensation resulted in the ushering in of progressive labour legislation such as Labour Relations Act 55 of 1995. The objective of this Act is to facilitate economic development, social justice, labour peace and democratization of the workplace. In other words this Act gave birth to the manner in which labour disputes should be resolved. The study was carried out not only to explore the perceptions of educators but also with a view to making recommendations on the findings in order to help contribute towards labour peace and productivity in the workplace. The attitudes of one hundred and forty-one educators were surveyed via questionnaires and six educators who have had labour disputes with the department were interviewed. The key findings of the study revealed that both the educators who were surveyed and those interviewed lack confidence in the effectiveness of the labour dispute procedures in the district; they perceive the system as being inaccessible to them; time taken to resolve disputes is too lengthy; the system lacks necessary independence from the department of education or government and the department is seen as not adhering to its own policies and legislation. Hence there are many disputes and there is a great need for more awareness and for improved training in handling labour dispute resolution systems for district officials and educators. The study recommends more awareness and training sessions for both district officials responsible for labour relations and educators at large. It also calls for an increasingly proactive role by teacher unions in partnership with the department of education to avoid labour disputes. Although the findings cannot be generalized toother districts of the province, they do however highlight critical areas in labour dispute resolution where attention can be paid and focus made in order to ensure labour peace in the workplace for improved productivity and effective teaching and learning.
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The impact of the Administrative Adjudication of Road Traffic Offences Act on the employment relationship

  • Authors: Van der Walt, Johann
  • Date: 2009
  • Subjects: Traffic violations -- South Africa , Labor laws and legislation -- South Africa , Administrative procedure -- South Africa , Employees -- Dismissal of -- Law and legislation -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:10224 , http://hdl.handle.net/10948/1038 , Traffic violations -- South Africa , Labor laws and legislation -- South Africa , Administrative procedure -- South Africa , Employees -- Dismissal of -- Law and legislation -- South Africa
  • Description: The focus of this dissertation is the impact that the Administrative Adjudication of Road Traffic Offences Act 45 of 1998 (AARTO) will have on the employment relationship between employers and employees. AARTO was promulgated in order to, amongst other things; assist with the streamlining of the traffic offence administration and the collection of payable fines for traffic infringements. Very little has been written with regard to the implications of AARTO on the employment relationship. The purpose of this dissertation is to unpack the mechanics of AARTO, and further to provide the writer’s view on its impact, problems and possible solutions, of the employment relationship within the South African Labour law framework. The writer will attempt to reconcile the Labour Relations Act and AARTO insofar as it impacts on the employment relationship, more especially the termination thereof. Writer will set out the provisions of AARTO and the sections pertaining to the allocation of demerit points on an individual driver’s licence. Unfortunately for the sake of completeness the writer will deal with the majority of sections in AARTO to provide a better understanding of the mechanisms envisaged by the Act to bring about the demerit points. It is writer’s view that dealing with the allocation of demerit points in vacuum will not provide the reader with a clear understanding of the impact of AARTO on labour relations. With regards to the actual implications that AARTO will have on the employment relationship writer has taken it upon himself to provide a categorization of employees in the broad sense and thereafter to discuss the impact of AARTO on the different categories of employees. More over the writer will examine the different categories of dismissal specifically misconduct, incapacity and operational requirements as well as the impact and applicability of AARTO thereon. vi The writer will also attempt to deal with peripheral issues that arise as a spinoff or AARTO insofar as employment relationships are concerned.
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  • Date Issued: 2009

An analysis of the proposed amendments to the Labour Relations Act and other employment legislation

  • Authors: Moodaley, Antonio
  • Date: 2014
  • Subjects: Labor laws and legislation -- South Africa , South Africa -- Labour Relations Act 1995
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:10301 , http://hdl.handle.net/10948/d1021117
  • Description: South Africa’s Labour Laws should undergo drastic changes in 2014 when new amendments take effect. The bills amend the Labour Relations Act 66 of 1995 (LRA), Basic Conditions of Employment Act 75 of 1997 (BCEA) and the Employment Equity Act 55 of 1998 (EEA). These amendments originate from the increasing “casualisation” of work prevalent in the South African Labour market and aim to address the phenomenon of labour broking, the continuous renewal of fixed-term contracts and unfair discrimination regarding wages amongst others. The legislature effected additional amendments to these Acts to align them with new developments, to improve the functioning of the Commission for Conciliation, Mediation and Arbitration (CCMA) and to fulfil South Africa’s obligation as a member of the International Labour Organisation (ILO). 1 In addition, the amendments attempt to clarify the wording of the Labour Relations Act (LRA) to elucidate numerous significant judicial interpretations of various provisions of the current Act as well as to close what some believe to be loopholes in current legislation. There are differing views on the possible effects the amendments could have on the country; some believe that it will damage business while others believe it will affect job creation. 3 According to Bosch, the amendments allow employers flexibility without depriving employees of rights properly due to them. 4 The researcher emphasises topical issues such as the need for temporary employment services, entitlement to organisational rights and the abuse of fixed-term contracts and further discusses, to a lesser extent and focusing on discrimination, the Basic Conditions of Employment Act5 (BCEA) and the Employment Equity Act6 (EEA).
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  • Date Issued: 2014

The labour law consequences of a transfer of a business

  • Authors: Abader, Mogamad Shahied
  • Date: 2003
  • Subjects: Labor laws and legislation -- South Africa , Business enterprises -- Registration and transfer -- South Africa , Labor contract -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:11057 , http://hdl.handle.net/10948/306 , Labor laws and legislation -- South Africa , Business enterprises -- Registration and transfer -- South Africa , Labor contract -- South Africa
  • Description: The burden that South African labour law has to bear in relation to the economy is very heavy by international standards. In most industrially developed countries, the economy is strong enough either to provide jobs for most work-seekers or, failing that, an adequate social security system for households without breadwinners in place. In most developing countries with high unemployment rates, the labour law system makes only perfunctory effort to reach out to those facing economic marginalisation. South Africa, essentially a developing country, is not like that. The legal system is strong, works off a firm human rights base, and sets out to grapple with the issues. That is how it should be, but it comes at a price – an oftengraphic exposure of the limits of the law in a stressed society. Businesses operate for profit and survival according to the unsentimental ways of the market, and employees back in a bid to save jobs, lifestyles and livelihoods. The stakeholders use power when they have it, and make claims on the law when they don’t. The legislation and the case law reflect, add to and, to a degree, shape the complexities of these contests, and no more so than in the area of business restructuring.1 The new South Africa has quickly become the destination for foreign investment. The weakness of the rand against the dollar, pound, euro and with the “cost to sell and produce” being so low against these currencies, players on the corporate stage constantly change their make-up and composition. The larger engulfs the smaller, one company buys shares in another, or buys it out entirely, or all or part of its assets, and others are liquidated. In all these situations, employees in South Africa may find themselves with new bosses on the morning after. Under common law employees in this situation were deemed to have been discharged by the former employer, whether or not they have been offered positions in the transformed structure. If they did not want to work under it, they could not be forced to do so. That was because an employment contract was deemed in law to be one of a personal nature that could not be transferred from one employer to another without the employees consent. This research is conducted at an interesting time, when the amendments to the Labour Relations Act 66 of 1995 in respect of the transfer of a business, and in particular section 197, dealing with such matters comes into effect. It is also interesting in the sense that most judgements of the Commission for Conciliation, Mediation and Arbitration (CCMA) and judgements of the Labour Court were moving more or less to a common approach or interpretation of section 197 of the Labour Relations Act 66 of 1995 (hereinafter “the LRA”). Section 197 of the LRA sought to regulate the transfer of a business as a going concern and altered the common law regarding the transfer of a business in two situations – firstly when there is no insolvency, factual or legal, concerned, and secondly in the instance where the transferor is insolvent. The first extreme was when an employer is declared insolvent and the contracts of employment terminated automatically. The second extreme was from the first whereby the employer has to terminate the services of his employees and be liable to pay severance pay in terms of section 1893 of the LRA, which has also been amended along with section 197 of the LRA. It is as if this section was introduced to remedy these extremes. These extremes will be dealt with in detail in this paper. The transfer of goodwill and assets from the seller to the buyer occurs when a business is sold as a going concern. At common law the employees of a business cannot be transferred in the same manner. The Labour Relations Act 66 of 1995 altered this position. By enacting this section the legislature wanted to protect the interest of the employees in such transactions. Whether the legislature has succeeded or not is a matter that will be dealt with in this paper. It is all dependent on the interpretation of this section by the commissioners and judges. By including section 197 in the LRA, the legislature’s intention was to resolve the common law problem where employment contract terminated upon the sale of a business, and this section was intended to be an effective tool for protecting the employment of employees. In order to understand the labour law consequences of the transfer of a business, it is important to understand the provisions of sections 197 and 197A of the Labour Relations Amendment Act 2002. This will be dealt with and each section will be discussed in detail using relevant case law and literature. In considering investing in a South African based company by way of purchasing a share of the company and giving it your own flavour, one has to carefully consider the effects of this transaction. Companies wishing to restructure, outsource, merge or transfer some of its operations will need to understand what the implications of the labour legislation will have on their commercial rationale. Section 197 regulates the employment consequences when a transfer of a business takes place. This is defined to mean the transfer of a business by one employer (the old employer) to another employer (the new employer) as a going concern. Business is defined to include the whole or part of the business, trade undertaking or service. Like the current provision, the new provision referrers to the transfer of a business. It is therefore a wider concept than the sale of a business.4 No attempt is made to define what constitutes a going concern and the controversial issue of whether an outsourcing exercise can constitute a going concern transfer is also not explicitly dealt with. The fact that a business is defined to include a service may be an indication that it was intended to typify outsourcing as a going concern transfer, but this is not necessarily the case.5 The amendments to the Act6 came into effect on 1 August 2002. Sections 197 and 197(A) of the Act consequently seeks to regulate the transfer of a business. These regulations will be dealt with individually and in a format that would make each of the sections in sections 197 and 197(A), easy to understand and interpret. It will also become clear as to what the implications of each of the subsections will have on that commercial rationale. The issues highlighted above will be dealt with detail in this paper giving an overview of the Common Law, the Labour Relations Act 66 of 1995 and the new Labour Relations Amendment Act 2002.
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  • Date Issued: 2003

The extension of employment rights to employees who work unlawfully

  • Authors: Gauss, Tanja Claudine
  • Date: 2011
  • Subjects: Labor laws and legislation -- South Africa , Labor contract -- South Africa , Illegal aliens -- South Africa , Prostitutes -- Legal status, laws, etc
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:10212 , http://hdl.handle.net/10948/1569 , Labor laws and legislation -- South Africa , Labor contract -- South Africa , Illegal aliens -- South Africa , Prostitutes -- Legal status, laws, etc
  • Description: South Africa has over the years and particularly since the enactment of our new Constitution, attracted an increasing number of foreigners. One of the main problems associated with the large number of illegal immigrants in this country is that they are placing strain on South Africa‟s already scare resources such as housing and healthcare. A further problem is that these illegal immigrants are competing with South Africans for jobs which are already scarce, and thus aggravating the unemployment situation. Nevertheless, these illegal immigrants are being employed and by virtue of their circumstances are easily exploited and often the victims of cheap labour, corruption, eviction and assault. Given that these workers are illegal immigrants not in possession of the required work permits, their employment is prohibited by the Immigration Act 13 of 2002. They are thus illegal workers. Another category of illegal workers are those, predominantly women, who are employed in an industry which offers easy income with no contractual obligations – the prostitution industry. Despite the prohibition of prostitution by the Sexual Offences Act 23 of 1957, the prostitution industry throughout South Africa continues to exist. These workers are also particularly vulnerable and easily exploited and abused by their employers. Illegal immigrants and sex workers in South Africa have until recently been denied access to the protection of our labour legislation, by virtue of the illegality of their employment contracts. However two recent controversial decisions, that of the Labour Court in the Discovery Health case, and that of the Labour Appeal Court in the Kylie case, have changed this position.
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  • Date Issued: 2011

An appraisal of strike law in South Africa

  • Authors: Crompton, Mark Stanley
  • Date: 2005
  • Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:11038 , http://hdl.handle.net/10948/379 , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
  • Description: The recent amendments made to employment laws and in particular the rewriting of the South African Labour Relations Act has brought into focus the diverse and conflicting interests of employers and employees, which is a concern of labour law analysts. This appraisal of South African of strike law examines the statutory and judicially established labour law in regard to the phenomenon of collective industrial action by employees and the regulation of its occurrence. Historical developments in strike law are traced from the early 1900’s. A period of segregated trade unionism, led ultimately to the introduction of a more inclusive system of regulation, which has in turn been modified to bring the law into line with the new constitutional imperatives. Industrial action occurred, often unregulated and regardless of statutory limitations, and in particular that industrial action which related to mass protest action, now recognized as a specific form of strike. The now repealed Labour Relations Act 28 of 1956 is examined with regard to its strike regulating provisions, and identification of what were then new, unrecognized forms of strike action. It has allowed concepts and principles to be developed, under the unfair labour practice jurisdiction of the Industrial Court, much of which has been incorporated in the new Labour Relations Act. The legislation on strike law, which has been developed over the years, has been refined by the constitutional imperatives introduced to the national legal system. The relevant aspects of the new Constitution Act 108 of 1996 and its pervasive effect on strike law are examined. The right to strike in South African labour law, together with the protection of collective bargaining, is now constitutionally entrenched, and the right to strike is now accepted as a necessary adjunct to collective bargaining. It is necessary to give effect to the Constitution in national legislation, and the Labour Relations Act 66 of 1995 endeavours to accomplish this in chapter IV in regard to strike law, which, it could be argued, limits rather than gives expression to the right to strike. iii The Labour Relations Act of 1995 is then discussed with reference to protected and prohibited strikes, and unregulated strike action. It will be evident that the Act has endeavoured to contain unprocedural and productivity draining industrial action, by subjecting rights disputes to arbitration and Labour Court adjudication, subject to certain exceptions. The recourse to lock-out, as the employer’s prerogative and general corollary of strike action, is briefly discussed. The case law relating to strikes is discussed in respect of both the 1956 Act and the new Labour Relations Act of 1995. Among the issues explored are the strike provisions which have been developed in statute and labour related common law, such as the identification of issues in dispute, notice of strike, the issuing of ultimatums, the audi altarem partem rule and the court’s approach to protected and unprotected strikes. The intention is to determine trends resulting from amendments to the law and draw inferences regarding, in particular, the unregulated form of strikes that occur within the scope of the protections offered by the Act. It is the intention to determine whether the desired effect has been achieved by implementing legislative reforms in response to public policy considerations.
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  • Date Issued: 2005

Labour law implications of organisational restructuring

  • Authors: Grootboom, Linda Henry
  • Date: 2003
  • Subjects: Labor laws and legislation -- South Africa , Organizational change -- South Africa
  • Language: English
  • Type: Thesis , Masters , LLM
  • Identifier: vital:11041 , http://hdl.handle.net/10948/303 , Labor laws and legislation -- South Africa , Organizational change -- South Africa
  • Description: It is beyond debate that each job lost due to restructuring means a lost taxpayer, and hence lost tax revenue, more poverty and increased crime. South Africa and the world at the large have to deal with this problem head – on in view of the acute need to better the lives of people and encourage investment. Technological advancement should be embraced and used to benefit people and stimulate economies, and that is further challenge in its own right. In Chapter 8 of the White Paper on Transformation of the Public Service dated 15 November 1995 (hereinafter, the White Paper), it is said that: “The Government of National Unity has embarked upon a concerted and comprehensive programme of administrative restructuring and rationalisation (my emphasis) with the object of: (a) Creating a unified and integrated service. (b) Creating a leaner and more cost-effective service.” Various strategies are listed in the White Paper, and the fundamental approach advocated is to right size, adjust remuneration structures, retrench and contract – out services.
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  • Date Issued: 2003
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