Browsing by Author "Hicks, Janine Louise."

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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.
Extension of social security benefits to women in the informal economy: a case for maternity protection.
(2021) Hicks, Janine Louise.; Reddi, Managay.
This study addresses the central issue that only workers recognised as ‘employees’ by South Africa’s labour law framework qualify for social security benefits. It highlights that, as a result, self-employed and atypical workers have no access to maternity benefits in the form of paid maternity leave, resulting in financial hardship – particularly for those in informal employment. The study finds that this exclusion constitutes a violation of core constitutional rights to equality, dignity, life, health, social security, and those of children, and a failure on the part of the state to give effect to its legal obligations in terms of international law. It argues further that the state’s differential treatment of self-employed workers, and the resulting impact on their constitutional rights to equality and dignity, constitutes unfair discrimination, which would not be permitted in terms of the limitations clause. Equally, the study considers the policy advocacy strategies utilised by self-employed women in the informal economy, to mobilise and lobby for law reform to address the violation of their rights. It examines whether state institutions supporting democracy, such as the Commission for Gender Equality (CGE), can play a role in initiating law reform processes to leverage state accountability on its gender equality obligations and commitments. It concludes that current weaknesses within the National Gender Machinery (NGM) undermine this potential, and that the measures required for the CGE to take up and act on an individual complaint and escalate this to the national policy level, are unsustainable and indicate failed institutionalism. The study examines best practice in countries of similar socio-economic status to South Africa, finding that such countries have successfully extended maternity benefits to self-employed workers through affordable, administratively efficient mechanisms that give effect to key components of International Labour Organisation Maternity Convention 183. The study draws out practical design and implementation considerations that would need to be addressed by the state, to ensure that the most vulnerable category of self-employed workers – predominantly in the informal economy – would be able to access maternity benefits, making recommendations for the South African Law Reform Commission process currently underway.