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Labour Law

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    The electronic monitoring of employees in the workplace.
    (2010) Subramanien, Darren Cavell.
    No abstract available
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    Mediation arbitration : a better way to justice.
    (1985) Macnab, David Scott.; Newman, Ellie.
    No abstract available.
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    Critical labour law imperatives that impact on the issues of equity, restructuring, incorporation and mergers that are currently taking place in the higher education sector.
    (2001) Sithole, Dumisani Lancelot Roosevelt.; Van Dokkum, Neil.
    This dissertation focuses on the forces that are bringing about changes in the employment relationships in the higher education sector. Labour law regulates the employment relationships. This dissertation also seeks to determine the extent to which the forces that are external to the parties to the employment relationship determine the legal environment within which the parties can exercise their rights and obligations. The important factor that is taken into account in this regard is the constitution of the country which is the supreme law of the land. The fundamental rights that are enshrined in the constitution must be recognised and respected by labour law and consequently by the parties to the employment relationships. The constitution provides that when interpreting any legislation, every court, tribunal or forum must promote the spirit, purpose and objects of the Bill of Rights. This dissertation is confined to the public higher education system. The constitution also stipulates that the power to pass legislation that regulates tertiary education is given to the national government exclusively. It is for that reason that the Higher Education Act has been amended to give the Minister the power to bring about the desired changes. The National Plan for Higher Education that was introduced by the Minister of Education in March 2001 is the basis of the discussion of the issues of equity, restructuring, incorporations and mergers that are currently taking place in the higher education sector in this dissertation. This is a force that is external to the parties and is brought about by policy considerations. The analysis of the issue of equity therefore takes into account the right to equality as buttressed by affirmative provisions of the constitution of the country and the legislation that has been enacted to outlaw discrimination at the workplace and to promote equality of opportunity is considered. The enforceability of the equity provisions of the National Plan for Higher Education are analysed in this context. Labour law also determines the respective rights and obligations of the parties when it comes to restructuring that is taking place in the higher education sector. Labour law acknowledges that the operational requirements of employers may compel them to restructure their operations. This may lead to a loss of jobs. The principles of labour law and labour legislation that regulate these phenomena are analysed. The National Plan for Higher Education seeks to bring about a change in the landscape of the higher education system in this country. It proposes mergers and incorporations of certain institutions of higher education into. other such institutions. Labour law principles and legislation regulate how these phenomena can be effected. Common law recognises an employment relationship between a particular employer and a particular employee and does not provide for the notion of transferring the employment relationship to a new employer. This dissertation analyses the applicable provisions of labour law when this transfer of contract happens in the higher education sector. Our labour law is itself in a state of flux, not only because the relevant labour legislation is new, but also because that "new" labour legislation is in the process of being amended. This aspect has been compounded by the fact that the Labour Appeal Court has given different interpretations to certain provisions of the legislation, leading to further amendment of the legislation. The relevant amendments relate to dismissals based on operational requirements of the employer and the transfer of contracts of employment from the "old" employer to the "new" employer. This dissertation aims to highlight the measures that the role players must take to ensure that the implementation of the directives contained in the National Plan for Higher Education, among others, does not fall foul of our labour law.
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    Indirect discrimination against women in the workplace.
    (1997) Naidu, Kasturi Melanie.; Rycroft, Alan John.
    This dissertation focuses on indirect discrimination against women in employment. It briefly examines the causes of discrimination against women in the workplace. Further it explains the concept of indirect discrimination by tracing its origins in the United States of America and analyses the development of the law of indirect discrimination in the United States until the introduction of the Civil Rights Act of 1991. This analysis involves an examination of the elements involved in proving an indirect discrimination claim and the problems experienced in doing so. The British indirect discrimination laws and cases are then examined to the extent to which Britain deviates from the American approach. The comparative law discussion will indicate the problems that have become an inherent feature of indirect discrimination cases. The problematic nature of proving indirect discrimination necessitates a discussion of the common types of conditions and requirements that indirectly discriminate against women. It is against this background that the present South African legislation on indirect discrimination in employment is analysed and case developments reviewed. Finally, the proposals of the Green Paper on Employment Equity are examined. The recommendations for the introduction of a comprehensive discrimination statute; the introduction of an independent commission; and the formulation of a Code of Good Practice that will provide guidelines to employers, are supported. Further, recommendations are made for a flexible discrimination legislation that provides a broad legal framework which allows for development of the law; the necessity to address issues regarding administration and costs involved in implementing this legislation; the introduction of additional funtions of the independent commission relating to training and access to the law; and the adoption of a statutorily enforced affirmative action policy that addresses the inequalities faced by women in employment.
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    The Mauritian law of procedural fairness within the context of dismissal for misconduct : a comparative study with the South African doctrine of unfair labour practice.
    (2001) Torul, V. P.; Nadasen, Sundrasagaran.
    The main premise of this treatise is to discuss the Mauritian Law of Procedural Fairness within the context of Dismissal for Misconduct: A comparative study with the South African Doctrine of unfair Labour Practice. It analyses in detail the types of misconduct that eventually leads to the dismissal of an employee. The dismissal has not only to be substantively fair but also procedurally fair. To support the views expressed in the research, reference has been made to labour law cases decided mainly in Mauritius and South Africa. There are, however, references to other jurisdictions such as India, England, Australia, Namibia. The major constraint that the researcher encountered was the unavailability of decided cases referred from the Industrial Court of Mauritius. Most of the cases referred to in the Mauritian context are the Supreme Court decisions on dismissals due to misconduct. Thus for lack of relevant cases in Mauritius, there is a heavy reliance on cases decided in South Africa and other jurisdictions. These references have constructively enhanced the legal dimension of the topic under discussion.
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    The developing law of promotion of employees in South Africa.
    (2006) Molony, Sean.
    No abstract available.
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    Workplace discipline and the right to privacy.
    (2004) Mookodi, Masego Magdaline.; Rycroft, Alan John.
    No abstract available.
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    Natural justice for employees : the problem of judicial review in employment relations.
    (1995) Khoza, Emmanuel Mduduzi.; Milkly, E.
    Work plays a dominant role in modern society. It is through work that the economic well being of any society is sustained. Workers who perform various tasks contribute to the well being of society as well as to their betterment as individuals. Thus paid employment has assumed a prominent role in modern society. It is an incentive on individuals to contribute to socio-economic welfare, while their needs and aspirations as individuals are also satisfied. But for an orderly society to exist, there has to be a subjection of some members of society by others, a division between those who have the social mandate (express or tacit) to exercise power for and on behalf of others. Thus work relations comprise those who exercise managerial power(employers) and those subject to managerial power (employees). In broader political relations, the task of social management is performed by the state. However those exercising managerial functions do not have unfettered discretion. Power should be exercised within acceptable social limits and be used to achieve realistic social goals. Thus it has been felt that the laws should always ensure that the incumbents of governmental power do not exceed the scope of their power or abuse it. Hence the process of judicial review. This gives the courts the power to review the decisions of administrative authorities in order to protect individual citizens who might be adversely affected by bad administrative decisions. This analogy has been applied in employment relations in order to protect individual employees against arbitrary dismissal by employers. It has been held that an employee cannot be dismissed without a valid reason and in compliance with a fair procedure. The question asked here is whether this is sufficient to ensure substantive employment protection. Is judicial review really effective in employment relations? It is observed that judicial review in labour law has many limitations as compared to the administrative law context. First, it comes face to face with the problem of the public/private law distinction, which holds the employment relationship to be fundamentally a private relationship between the employer and employee. This complicates the application of public law remedies in supposedly private relations, where the parties are assumed to have freedom of contract. The second problem involves the debate as to whether the state should impose many restrictions on the modern corporation or there should be minimal state intervention to allow the corporation to function in accordance with the labour market demands and economic necessity. It is concluded that the law of unfair dismissal has consequently been put in a dilemma. While the need has been perceived to curb the arbitrary use of managerial power by employers, substantive employment protection can hardly be guaranteed. The problem seems to be that of striking the balance between the interests of employees, employers and society at large.
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    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.
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    Intolerable conduct in a constructive dismissal : an exploration of case law dealing with intolerable conduct.
    (2012) Jansen van Rensburg, Lara.; Grant, Brenda.
    This paper focuses on the issue of constructive dismissal in terms of s186(e) of the Labour Relations Act 66 of 1995 which defines dismissal to include circumstances where an employee resigns because the employer has made continued employment intolerable. The purpose of this paper is to explore and describe case law on this issue and to consider what type of conduct has been regarded as intolerable by the courts in order to determine whether or not a case for constructive has been met.
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    'Privacy in the workplace' : striking a balance between the privacy concerns of employees and the operational requirements of employers.
    (2012) Kondiah, Sarisha Shanel.; Whitcher, Benita Mandy.
    The value underlying privacy lies in the fact that it mirrors the very idea of human dignity and the protection of the personal realm. However operational requirements of employers and advancements in science and technology continuously challenge the notion of privacy in the workplace. Employees all over the world are victims of a number of privacy invasive measures including, but not limited to drug testing, background checks, HIV/AIDS testing and polygraph testing. Present day advancements in technology and science make the recognition and protection of the right to privacy even more urgent. The concept of privacy in the workplace has grown in importance as technology has enabled sophisticated forms of testing and monitoring of employees. As a result of these advancements a deep tension has arisen between two conflicting sets of principles. Consequently the rationale for this study is to strike a balance between the employee’s right to privacy and the employers right to conduct his or her business as he or she deems fit. This will be done through an analysis of a number of practices adopted by the employer in the workplace of which contribute to the infringement. Further the admissibility of such evidence procured by the employer through these practices will be interrogated. This is a significant issue as scientific and technological advancements have a very tangible impact on the wellbeing of employees.
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    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.
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    An analysis of the presentation and admissibility of evidence at CCMA arbitrations.
    (2013) Gounden, Shamon.; Whitcher, Benita Mandy.
    Historically, labour dispute resolution in South Africa has been synonymous with being expensive, unnecessarily lengthy and ineffective. The Labour Relations Act (LRA) 66 of 1995 set out to change this through the creation of the Commission for Conciliation, Mediation and Arbitration (CCMA). The design of the CCMA is centred on a dispute resolution institution that adopts a quick, cheap and non-legalistic approach to dispute resolution. Through the introduction of compulsory arbitration for specified dismissal and unfair labour practice disputes, the LRA granted the CCMA the mandate of upholding the objectives of industrial peace and reducing exorbitant legal costs. The outcome of arbitration proceedings conducted under the auspices of the CCMA are final and binding. Accordingly, this sui generis type of proceedings aimed at being cheap and informal has several implications. The adherence to traditional legal principles, in particular the rules relating to the presentation and admissibility of evidence cannot be adhered to rigorously in a forum where parties are unrepresented and that has informality as a defining feature. This paper set out to examine the proposition that based on various statutory powers; arbitrations are to be conducted informally and free from legalism- which necessarily entails a relaxation if not elimination of the traditional exclusionary rules pertaining to the presentation and admission of evidence.
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    Positive discrimination in South African employment law : has affirmative action overstayed its welcome?
    (2013) Mhungu, Valentine.; Cohen, Tamara Jodi-Ann.
    No abstract available.