Labour Law

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A critical investigation into the reality of decolonising labour law: a South African perspective.
(2023) Mabaso, Fanelesibonge Craig.; Tenza, Mlungisi Ernest.; Whitear-Nel, Nicola Jane.
This study analysed labour law as more than just what the law is, at face value. The study examined labour law as being influenced by socio-political narratives. To better understand these socio-political narratives and their influences on labour law, the study posed much needed questions concerning race, gender and class in relation to labour law. The study noted that all of these socio-political narratives have been ignored social issues, which are collectively at the forefront to understanding decolonisation. The crux of the dissertation was the reality of decolonising labour law in South Africa. The study used the principle of decolonisation as means of addressing the issues faced by workers in the workplace. The study viewed decolonisation as a suitable tool of analysis in that it allowed the study to use the concept of intersectionality. Linking race, class and gender as the primary points of the oppression of employees in South Africa. The study addressed the different terminologies that were at the centre of the thesis, such as Whiteness, Blackness and African. The importance of this is that these terms are often used interchangeably but within the context of the study, they each play a different role in understanding the racial makeup of the South African workplace. The study presented a discussion of labour law advancing access to justice for the working class through the rejection of the civil litigation principle of costs orders following the result. This discussion highlighted the need to not simply burden workers with costs orders that would deter the poor, often black, workers from fighting injustices in the workplace. The study dealt with the omission of domestic workers from the definition of ‘employee’ in COIDA and provided a discussion on the intersectionality of this apartheid-rooted exclusion. The study also addressed the issue of the commodification of workers through a complete disregard of labour brokerage and suggestion that employees be given a right of first preference in share schemes. The study also discussed the appropriate remedy to racism in the workplace. Finally, the study addressed the link between race, class and the right to strike.
The admission of hearsay evidence, evidence obtained from entrapment and the interception and and monitoring of communications in arbitration proceedings conducted in terms of the Labour Relations Act, 1995.
(2014) Ndlovu, Nduduzo Ayanda.; Whitcher, Benita Mandy.
The law of evidence takes quite a rigid stance in criminal courts in order to afford an accused person a fair trial, as envisaged by the Constitution. It thus follows that the standard of proof in criminal courts is beyond a reasonable doubt. In civil courts the standard is not as high, and is thus based on a balance of probabilities. Nonetheless, civil court proceedings have to afford fairness to all parties in a particular matter. Part of achieving fairness requires adherence to the rules of evidence. In any case, evidence plays a crucial role in determining a case. It is thus of paramount importance to follow the rules of evidence when deciding whether to admit or reject evidence, its evaluation and the weight to attach to it. The Commission for Conciliation Mediation and Arbitration (CCMA) is a statutory body established to process labour disputes with minimum of legal formalities, and in the shortest time possible due the amount of disputes that it deals with, in light of its easily accessible services. The CCMA is not a civil court. Thus CCMA proceedings are not civil proceedings. The environment of CCMA proceedings should not duplicate court proceedings because of the informal nature of the CCMA. However, this informality should not cause commissioners or arbitrators to not deal with the merits of any matter in which they are presiding over. A number of arbitration awards have been successfully reviewed due to errors committed by arbitrators, with regard to evidentiary errors. This paper will look into the admissibility of some of the most testing kinds of evidence to deal with, namely: hearsay evidence, evidence obtained from entrapment and evidence obtained from the interception and monitoring of employees telecommunications. This paper will also assert to clarify when such evidence should be admitted and when it should be rejected, in light of the CCMA not conducting civil proceedings yet still having a standard of proof based on a balance of probabilities.
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.
An analysis of intolerable conduct as a ground of constructive dismissal.
(2015) Ngcobo, Sipho Ernest.; Whitear-Nel, Nicola Jane.
Constructive dismissal with particular reference to s 186(e) of the Labour Relations Act 66 of 1995 forms the main subject of this Dissertation. The section explains „dismissal‟ to incorporate a position where a worker resigns as a result of the conduct of the employer who made continued employment intolerable. The study explores case law on this issue, considers and describes the forms of behaviour that have been and those that will be considered by the courts to be offensive conduct on the part of the employer, and to what end these can be said to necessitate a case of constructive dismissal.
An analysis of promotions and unfair discrimination in applications for employment/appointments within the ambit of the labour laws of South Africa.
(2003) Balton, Sharmain Renuka.
No abstract available.
An analysis of social media misconduct in the workplace.
(2018) Arjun, Ramesh Thilak.; Bernard, Rowena Bronwen.
This paper serves to analyse social media misconduct in the workplace. The introduction of electronic and social media has brought about significant changes to how business is conducted. Despite its widespread benefits, social media usage has the potential to cause harm to a business entity. The aim of this dissertation is to analyse the different forms of harm that may befall a business through social media misuse, and the tools that are available and the steps that need to be taken to avert such harm. The analysis will be undertaken by referring to South African legislative and common law principles and by drawing a comparison with the approach adopted by foreign jurisdictions in respect of social media misconduct in their workplaces
An analysis of the current lawfulness of South African renumeration practices and a critical assessment of the impact of proposed legislation.
(1996) Fynn, Frances Elizabeth Anne.
No abstract available.
An analysis of the Labour Relations Act 66 of 1995 as it relates to derogatory comments posted by employees on social media.
(2018) Munian, Sherilyn.; Pete, Stephen Allister.; Hulme, David Haigh.
With the rise of the digital age, social media has become a tool for communication in the modern world. The law on social media in South Africa is underdeveloped and there is an absence of current legislation that specifically deals with social media. Employees are often under the impression that they are permitted to say anything they desire on social media platforms without consequence. Problems arise when employees take to social media to vent their frustrations about work and post derogatory comments about their employer(s). In the absence of legislation specifically regulating the use of social media, an employer will often rely on the Labour Relations Act 66 of 1995 in order to dismiss an employee for misconduct of the kind mentioned above. Employees for their part will often cite constitutional rights such as the right to freedom of expression and the right to privacy as defences against being unfairly dismissed for their social media posts. This study aims to determine whether or not the Labour Relations Act 66 of 1995 is still fit for purpose in view of the rapid and exponential rise of social media during recent years. The main focus of this study is on the dismissal of employees for posting derogatory comments about their employees on social media and seeks to determine whether or not South African Labour Legislation has adequately kept pace in this area.
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.
An analysis of the substantive fairness in cases of dismissal for misconduct in South Africa - the need for constitutional value of dignity in determining substantive fairness.
(2017) Mshengu, Kwazikwenkosi Innocent.; Whitear-Nel, Nicola Jane.
The development of labour laws in South Africa has registered major strides in regulating the employment relations. These developments have been in tandem with the political and socio-economic development of South African society. Amongst the major progressive developments in the realm of labour law is the notion of substantive fairness in cases of dismissal for misconduct. Prior to the Industrial Conciliation Amendment Act 94 of 1994, the notion of substantive fairness was virtually absent from the labour law jurisprudence. Influenced by the socio-economic developments in South Africa as well as the International Labour Organisation's recommendations, South African courts introduced the notion of substantive fairness in cases of dismissal for misconduct. The application of the novel notion of substantive fairness was first premised on the employer deference approach which was borrowed from s57(3) of the Employment Protection (Consolidation) Act of 1978 (the English Statute). The employer deference approach demanded that presiding officers must accord respect to the interest of the employers in determining substantive fairness in cases of dismissal. This approach was followed by contradictory judgements by South African courts – with some embracing the approach whilst other rejecting it. The South African approach to the notion of substantive fairness was eventually decided by the Constitutional Court in the case of Sidumo and Another v Rustenburg Platinum Mines and Others. The Constitutional Court rejected the employer deference approach and replaced it with the exercise of value judgement by presiding officers which demands balancing the interests of employers and employees in determining the substantive fairness. The court further, without being exhaustive, enumerated factors which must be taken into account in the process of establishing substantive fairness and these included the importance of the rule breached; the reason the employer imposed the sanction; the basis of the employee‟s challenge of dismissal; the harm caused by the employee‟s conduct; whether additional training may avoid repeat of the offence; the effect of dismissal on the employee and his or her record of long service. Notwithstanding the Constitutional Court judgment, the exercise of value judgment remains vulnerable to arbitrary application if it is not anchored on a specified value to be protected. This vulnerability has been apparent in certain cases that followed the Sidumo case such as that of Theewaterskloof Municipality v South African Local Government Bargaining Council (Western Cape Division and Other) and Miyambo v Commission for Conciliation, Mediation and Arbitration. In both cases, the employees were dismissed for what may be argued as inconsequential acts of misconduct. This was palpably against the spirit and purport of the precedent-setting decision in the Sidumo case. This study proposes that the exercise of value judgment should be anchored on the constitutional value of dignity which is intrinsically interwoven with the right to work security. Recognizing the importance of dignity as the right was aptly articulated by Justice O‟Regan in the case of S v Makwanyane5 that: “recognizing the right to dignity is an acknowledgment of the intrinsic work of human beings: human beings are entitled to be treated as worthy of respect and concern. This right therefore is the foundation of many of the other rights that are specifically entrenched in the Bill of Rights.” If the right to dignity is the foundation of many rights, it stands to reason, therefore, that it should also anchor the exercise of value judgment in order to avoid arbitrary application.
Balancing the right to strike by public health care workers against the right of patients: lessons from abroad.
(2022) Mvelase, Zinzi.; Tenza, Mlungisi Ernest.
The research will address the right to strike by public health care workers versus the fundamental right to access to health care. The objective of this research is to establish what the right to strike by health care workers entails. Furthermore, the research will establish how to balance the right to embark on a strike by health care workers and the right of patients to access health care. The goal of the research is not only to find remedies that will reduce strikes within the health sector in South Africa but to also to ensure that both the right to strike and the right to access health care are not violated. The research will focus on the labour laws of South Africa which regulate the right to strike. In this regard, the research will highlight not only the right to strike in terms of the Labour Relations Act 66 of 1995 and the Constitution of the Republic of South Africa, 1996, but also the international norms of such right as well as the substantive and procedural limitations. The research will further establish to what extent health care workers can exercise the right to strike. Such laws will be compared with laws of Canada and Australia in relation to the right to strike by health care workers and the right to access health care. The research will further discuss recommendations for curbing strikes within the health sector.
Collective bargaining and Section 197 transfers.
(2015) Mila, Tamsanqa.; Whitcher, Benita Mandy.
Abstract not available.
The constitutionality of the concept of demographic representivity provided for in terms of the Employment Equity Amendment Act 47 of 2013.
(2015) Tapanya, Gideon.; Hulme, David Haigh.
South Africa is a potentially unstable society because of societal imbalances. The majority of South African black people whether African, Indian or Coloured, suffered disproportionally low levels of wealth, status and quality of employment as a result of Apartheid. The Constitution of the Republic of South Africa Act 108 of 1996 recognises the need to deal with these inequalities and its Preamble indicates the need to heal the divisions of the past, improve the quality of life of all citizens and free the potential of each person. Section 9 of the Constitution provides for equality, however, it also allows for legislative and other measures to be taken for the advancement of persons disadvantaged by unfair discrimination in terms of section 9(2). In order to achieve this purpose, the government introduced affirmative action legislation including the Employment Equity Act 55 of 1998, which prohibits the use of racial quotas. Much affirmative action type legislation, however, as well as the practical application of affirmative action, has been based on the concept of demographic representivity. This concept was adopted as policy by the African National Congress (ANC). The question arises whether demographic representivity as an affirmative action policy is constitutional, given the fundamental commitment of section 9 of the South African Constitution. Moreover, the concept of demographic representivity as specifically provided for in the Employment Equity Amendment Act 47 of 2013 raises questions of fairness and practicality. The significance of this study is that it challenges the constitutionality of the South African government policy in respect of the use of demographic representivity in terms of the Employment Equity Amendment Act 47 of 2013.
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.
A critical analysis of child labour protective laws in Southern Africa : a case study of Malawi, South Africa and Zimbabwe.
(2014) Madziwa, Tinashe.; Bernard, Rowena Bronwen.
In many countries, mainly African, child labour is a major problem compromising future generations and undermining human capital. It is estimated that over 28.4 per cent of all children between the ages of five and 14 years are involved in child labour activities in sub-Saharan Africa. It is an accepted fact that despite legislation, in most countries in Africa the problem of child labour still persists. In this study, a critical analysis of the legislation regulating child labour in Southern Africa will be undertaken, with the focus being on Malawi, South Africa and Zimbabwe. This research aims at establishing why child labour is a continuing problem in these countries despite laws that have been enacted to prevent it. Malawi, South Africa and Zimbabwe were specifically chosen for similarities in their colonial history which has influenced their political, cultural, legal and socio-economic patterns. As is common in the promulgation of laws, lacunae emerge; therefore attention was given to areas that have been overlooked by government. Weaknesses and gaps in these legislation were identified as the reason for the legislation being ineffective when combating or reducing child labour. Therefore, the main purpose of this study was to investigate whether the continued prevalence of child labour is due to oversight or the result of a wrong approach by different governments when legislation was drafted. For legislation to be implemented effectively it should be drafted correctly and appropriately; failure to do so results in legislation not achieving its purpose. Where gaps have been identified, realistic recommendations were made on how to correct these problems to make the law work more effectively to combat child labour in Southern Africa.
A critical analysis of Section 197 of the Labour Relations Act 66 of 1995 as amended taking into consideration the elements of Section 197, the definition and case law.
(2016) Soni, Chetna.; Bernard, Rowena Bronwen.
Section 197 of the Labour Relations Act 66 of 1995 regulates the transfer of a business as a going concern. However, it caused much debate and litigation. Previously, section 197 allowed for the automatic transfers of employees when there was transfer of the whole or part of a business, trade or undertaking. The employees could not refuse to be transferred. There has been much debate and litigation on this issue, mainly on the issue of transfers in the context of outsourcing. This resulted in section 197 of the Labour Relations Act 66 of 1995 being amended in 2002. With the amendments, the new employer is automatically substituted in place of the old employer in respect of all contracts of employment. The section aims to protect employees against loss of employment while facilitating the transfer process. Despite the amendment, there has been much academic and judicial debate on the issue. The Constitutional Court settled this issue in Aviation Union of SA & another v SA Airways (Pty) Ltd & others (2011) 32 ILJ 2861 (CC) wherein it was held that a transfer takes place when there is a termination of a service contract and the award of a new contract to a third party. The Aviation case sets a precedence and is being applied in various cases. For section 197 to apply, there must be a transfer of an identifiable business by the old employer to the old employer as a going concern. Each case must be determined on the facts. The effects and conditions of transfers are further discussed stating the consequences that flow and the remedies available to employees. The conditions of the transferred employees should not on a whole be less unfavorable. This is further examined in the context of transfers within the South African Local Government structures and how the unions failed to utilize their power and collective bargaining to their advantage to ensure that they members were protected during the process.
A critical analysis of temporary employment services in contemporary South Africa.
(2020) Khumalo, Nokuzola Gloria.; Bernard, Rowena Bronwen.
The study focuses on the critical analysis of temporary employment services in contemporary South Africa and specifically looks at the Labour Relations Amendment Act 6 of 2014 which introduced a controversial provision of section 198A. The analysis discusses the history of the Labour Relations in South Africa as it progresses over the years from 1956 to the latest amendments of the Labour Relations Act in 2014. As part of the history of the TES the analysis touches on the Namibian LRA and case law, a country that dealt with a similar issue of TES abusive labour. Also touches on the ILO standards of employment which affects the world globally. The study analyses the South African case law that deals with the TES abuse of vulnerable labour, in particular, an outstanding recent case of Assign Services v NUMSA which ended up in the Constitutional Court of South Africa. In critical analysis of the deeming provision, joint and several liability clauses, a use of other related employment statutes is discussed. The dissertation focuses on the outcome of the recent Constitutional case and of Assign Service v NUMSA where the Constitutional Court finalised the word to mean a sole employer for the purpose of the LRA only in exclusion of other employment statutes. This is a fascinating debate, which requires legislature to deal with before it yields further disputes. The study also provides some recommendations to be considered to amend the LRA legislation in section 198A in order to provide a clear interpretation.
A critical analysis of temporary employment services in terms of current legislation.
(2016) Naidoo, Shalina Sinanin.; Whitear-Nel, Nicola Jane.
This paper focuses on the protection of vulnerable employees in South Africa, especially in regard to Temporary Employment Services (hereinafter referred to as “TES”). The protection of employees against unfair labour practices is crucial for job security. ¹According to Odeku, “decent work and decent conditions of employment are components of sustainable socio-economic development frameworks around the world.” ² However, according to Van Eck, “over the past two decades, business owners in South Africa have increasingly sought to ‘externalise’ the traditional full-time, permanent, employer-employee relationship into a triangular labour broker connection” ³ and “this [is done] when [TESs] make employees available to [clients] (third parties) and the client assigns duties to the employee and also supervises these services.” ⁴ The tripartite relationship involving the TES is regulated by s 198 of the Labour Relations Act⁵ (hereinafter referred to as “LRA”). A TES is defined as a person who for reward, provides to a client, persons to render services to or to perform work for the client and obtains remuneration from the TES. ⁶ This triangular relationship is established by an employment contract (which forms the basis of the employment relationship) and a commercial contract between the TES and the client.⁷ In terms of this relationship, the employee provides his or her services to a client, and such relationship is then regulated by a commercial contract between the client and the TES.⁸ Van Eck stipulates that in such a case, the TES entering into an employment contract with the employee administers the payroll and deducts taxes from the employee’s remuneration and “the commercial agreement usually incorporates a clause that such agreement will continue only for as long as the client needs the services of the employee”.⁹ Thus there is no contractual relationship between the client and the employee, even though the client supervises the services of the employee.¹⁰ The Labour Relations Amendment Act 6 of 2014 (hereinafter referred to as the “LRAA”) came into effect on the 1 January 2015 and made changes to the law relating to the regulation of tripartite relationships. The amendments to s 198 will be discussed in this dissertation and in particular, there will be an analysis pertaining to whether these changes provide adequate protection to vulnerable employees engaged by TESs.
A critical analysis of the appropriateness of dismissal as an automatic sanction for dishonesty in the workplace.
(2021) Maharaj, Nirvashnee.; Whitear-Nel, Nicola Jane.
Even though South Africa’s Constitution and the LRA entrench the rights of employees not to be unfairly dismissed, employees are dismissed for what are arguably minor infractions. Numerous employees have lost their human dignity and livelihoods for a single act of irrationality. This dissertation focuses on analysing if automatic dismissal for dishonesty-related misconduct is appropriate. The emphasis is on the requirements for determining a fair sanction for dishonesty-related misconduct and the factors that commissioners and the courts need to take into consideration in determining an appropriate sanction. Dismissals for misconduct are often not fair, reasonable, and just as required by our labour legislation. To analyse the appropriateness of dismissal as an automatic sanction for dismissal, articles, case law, and literature from various textbooks were considered. The results of the research indicate that not all acts of dishonesty should automatically result in the sanction of dismissal. The key question is whether the dishonesty is of such seriousness that it renders the continuation of the employment relationship intolerable. The importance and the impact of the breached rule on the employer's business as well as the employee's disciplinary record and length of service and the employee's circumstances must be considered in determining if the sanction of dismissal is appropriate. The recommendation made is that for minor cases of dishonesty, an employer should consider the employment relationship intact and therefore refrain from imposing the sanction of dismissal. A graduated system of discipline is suggested in these instances.
"A critical analysis of the employers' obligations in combatting and eliminating sexual harassment at the workplace or extension of the workplace in South Africa".
(2016) Mabunda, Emmanuel Vusi.; Whitear-Nel, Nicola Jane.
Abstract available in PDF file.

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