Labour Law

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Affirmative action for people with disabilities in the South African workplace : compliance and enforcement.
(2015) Makhubele, Decide Friday.; Cohen, Tamara Jodi-Ann.
This study is concerned with affirmative action for people with disabilities in the South African workplace with a focus on compliance and monitoring. Affirmative action is a temporary means to promote equality. In South Africa, the concept of affirmative action is constitutionally recognized in the form of substantive equality. This dissertation examines whether or not employers are complying with the Employment Equity Act by implementing affirmative action. It also seeks to determine whether affirmative action is enforced by the Department of Labour and the courts. The methodology involved a review of the relevant literature, legislation and policies on employment equity and an analysis of case law. The study found that affirmative action is not implemented correctly by most employers and that there is little enforcement. It recommends that employees with disabilities, and trade unions, should challenge employers who are not complying with the Employment Equity Act.
Coronavirus in South African workplaces: the safety, remuneration, and retrenchment of employees during the lockdown.
(2020) Zungu, Siphesihle Hendry.; Cohen, Tamara Jodi-Ann.; Hicks, Janine Louise.
The sudden and unprecedented spread of coronavirus has left the world, including South Africa, negatively affected. The coronavirus pandemic has been a new experience, and South Africa is faced with questions about whether the existing laws on employment are adequate to manage coronavirus in the workplace, maintain the working relationship between the employer and the employee, and allow the employers to continue to function. The intention of this study is to explore the balance between the right of the employee to safety in the workplace with the interest of the employer in running a profitable business. Existing employment laws guiding employers on protection of employees in the workplace are considered as well as the duty of employees to follow protective measures provided by the employer to protect them against coronavirus. The study interprets the contractual principle of supervening impossibility of performance with regard to the sudden and unexpected onset of the coronavirus and the standard the courts have set in interpreting this principle as a defence. In analysing the principle and the courts’ interpretation on the limits of such a defence, the study concludes that employers remain bound to pay employees full remuneration if they provide their services during the pandemic, but do not have an obligation to pay employees their full remuneration if employees do not work on account of the pandemic. In this instance the pandemic constitutes an intervening impossibility of performance for the employer, and the employer is excused from making payment to an employee who is not working during the pandemic on the plain ground that the employee has not honoured their side of the employment obligation. The study further interprets the Labour Relations Act and case law dealing with retrenchment to establish what procedure the employer can follow in retrenching employees during the pandemic. The analysis reveals that the procedure for retrenching employees based on operational requirements has not changed. However, employers must retrench employees fairly and may not use the pandemic as an excuse to unfairly target or dismiss employees. From the findings of the analysis, the study draws lessons learnt during the pandemic and makes suggestions for developing existing employment laws to be able to address a similar scenario should South Africa face another pandemic in the future.
Decent work in South Africa : an analysis of legal protection offered by the state in respect of domestic and farm workers.
(2013) Arbuckle, Michelle Lisa.; Cohen, Tamara Jodi-Ann.
There have been a number of labour disputes in the agricultural sector in the past year. Domestic workers’ wages and working conditions have also been under the spotlight. This study aims to determine whether or not the concept of decent work is adequately protected in South Africa’s current legislation; the implementation of such legislation and whether or not, as a member of the United Nations, South Africa’s legislation is in line with the international standards set by the International Labour Organization (ILO). The study examines previous labour legislation in order to establish the extent of the protection offered to employees, particularly domestic and farm workers. It provides recommendations in respect of the current legislation based on the ILO standards, particularly the Labour Inspection Convention No. 81 of 1947, Convention No. 184 Concerning Safety and Health in Agriculture, 2001 and Convention No. 189 and Recommendation No. 201 Concerning decent work for domestic workers, 2011.
Economically justifying the limitation of the right to strike in the mining industry.
(2014) Kujinga, Tungamirai.; Cohen, Tamara Jodi-Ann.
Abstract not available
Fair dismissals : a critical analysis of the 'appropriateness of sanction' in light of recent developments.
(2012) Naidoo, Tamar Natalie.; Cohen, Tamara Jodi-Ann.
No abstract available.
The grounds for reviewing CCMA arbitration awards: a critical assessment of whether the court's interpretation thereof gives adequate effect to the fundamental right to just administrative action.
(2016) Khumalo, Andile Wesley.; Cohen, Tamara Jodi-Ann.
Abstract available in PDF file.
Limitation on freedom of association : the case of public officers in Lesotho.
(2013) Matee, Lehlohonolo John-Paul.; Cohen, Tamara Jodi-Ann.
No abstract available.
The nature and extent of liability incurred by a trade union, in their role as presentatives of their members.
(2017) Kannigan, Annerly Pearl.; Cohen, Tamara Jodi-Ann.
Abstract available in PDF file.
Positive discrimination in South African employment law : has affirmative action overstayed its welcome?
(2013) Mhungu, Valentine.; Cohen, Tamara Jodi-Ann.
No abstract available.
The reconciliation of work and care : a comparative analysis of South African Labour Laws aimed at providing working parents with time off to care.
(2017) Behari, Asheelia.; Cohen, Tamara Jodi-Ann.; Subramanien, Darren Cavell.
The purpose of this thesis is to examine the adequacy of South African labour laws which regulate the rights of employees to take time off from work to attend to care-giving responsibilities. It engages in a comparative analysis between South African labour laws, international and regional labour standards, and the laws of the United Kingdom which govern the reconciliation of work and care. Work–care reconciliation can be achieved through the reorganisation of work to account for family interests and responsibilities. Labour laws must be used to restructure working times through the incorporation of family-friendly policies, with particular emphasis on statutory leave provisions. As such, the reconciliation of work and care requires the statutory recognition of time off from work for employees to attend to their family responsibilities. This thesis relies on labour standards set out by international and regional organisations as indications of minimum standards which should exist within a comprehensive legislative package aimed at the reconciliation of work and care. These minimum standards have been identified as maternity leave, adoption leave, paternity leave, parental leave, emergency care leave, and flexible working arrangements. Maternity leave should be comprised of a period of leave over the pregnancy, childbirth, and postnatal care of the child; benefits in the form of cash for the period of maternity leave; health protection at work during pregnancy and the period of breastfeeding; employment protection which provides security of employment and the right to return to work after maternity leave, as well as protection against discrimination based on maternity; and periods of breastfeeding breaks available to employees at the workplace. South African labour laws provide employees with rights to maternity leave and family responsibility leave. Section 25 of the Basic Conditions of Employment Act 75 of 1997 provides pregnant employees with four consecutive months of maternity leave. Section 27 provides employees with family responsibility leave, available for the duration of three days to both men and women for the general purpose of caring for a family member. By examining the scope, duration, qualifications, and affordability of maternity leave and family responsibility leave, this thesis will seek to ascertain whether these leave entitlements have limitations in their capacities to accommodate employees with care-giving responsibilities. The laws of the United Kingdom are relied on as a comparative foreign legal system which has made numerous policy initiatives and legal reforms within the area of the reconciliation of work and care. Fuelled by a political agenda, the commitment of the government of the United Kingdom towards family-friendly legislative rights has led to the adoption of an inclusive and comprehensive statutory package aimed at the reconciliation of work and care. These statutory provisions are set out and examined with the objective of providing insight to the measures which are necessary to ensure the adequacy of South African labour legislation aimed at the reconciliation of work and care. The comparative analyses of international and regional labour standards, together with the laws of the United Kingdom, lead to a series of recommendations in the form of amendments to current labour legislation and the introduction of new legislative provisions. This thesis concludes with proposals aimed at ensuring that employees with care-giving responsibilities are provided with options of leave entitlements which accommodate their individual needs according to affordability and family structure. As such, it calls for legislative reform in the labour laws of South Africa to provide employees with a comprehensive legislative package aimed at the reconciliation of work and care.

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Browsing Labour Law by Author "Cohen, Tamara Jodi-Ann."