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Masters Degrees (Labour Law)

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    The prevalent and violent industrial action in the mining industry: The need to curb the prevalent and violent strike action in South Africa.
    (2015) Bavu, Siyakudumisa Benjamin.; Whitear-Nel, Nicci.
    Abstract The right to strike is a fundamental human right recognized in international law and the South African Constitution. In South Africa, employees have a constitutional right to strike. Section 23 of the Constitution of the Republic of South Africa, 1996, provides all workers with labour rights including the right to strike. The right to strike is given effect to in chapter IV of the Labour Relations Act 66 of 1995 (hereinafter referred to as the LRA). The LRA provides for the requirements and limitations which employees, in exercising their right to strike, ought to comply with in order to ensure that their strike is protected. In terms of the LRA a strike is protected if it complies with the provisions of the LRA. The purpose of this study is to explore the manner in which the right to strike has been exercised recently in South Africa, with specific focus on the mining sector. It will be shown that recent strikes in the mining sector have been unprotected and characterised by an element of violence. This will be done to establish whether the limitations thereof, intended to combat unprotected strikes, serve the purpose of curbing the unprotected strikes. As a means of assessing how the regulation of strike action could be improved, this study will, inter alia, compare the law which regulated the right to strike in terms of the previous Labour Relations Act No. 28 of 1956 and in terms of the current Labour Relations Act No. 66 of 1995 which replaced the former. The study will then suggest a more effective legal means by which to curb unprotected strikes like those seen recently in the mining industry. This would involve adjustments, additions, and the tightening of strike laws. Some of these changes would involve reintroducing elements of the repealed Labour Relations Act of 1956.
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    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.
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    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.
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    Social media dismissal: sword or shield?
    (2021) Dube, Sipho Prince.; Bernard, Rowena Bronwen.
    The use of social media by employees has increased rapidly and has been met with different results. In the age of the internet, people share their thoughts and opinion on social media without thinking about the repercussions the post might have on the public in general and the workplace in particular. It is undeniable that employees have a constitutional right to privacy and freedom of expression but those rights are not absolute. This dissertation discusses the balance between the employee’s right to privacy and freedom of expression against an employer’s right to good name. It discusses the current legal position on social media and the procedure an employer must follow when disciplining an employee for social media misconduct. The dissertation also looks at the position of social media in the United Kingdom and attempts to draw lessons.
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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.
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    A father’s right to paternity leave in the South African workplace.
    (2020) Naidoo, Shantha Luxmi.; Bernard, Rowena Bronwen.
    This minor dissertation examines the legal position of the working father and paternity leave in South Africa. The Labour Law Amendment Act No. 10 of 2018 came into effect on 1 January 2020. Section 25A of the BCEA provides for ‘parental leave’ which will allow a male or female parent ten days leave upon the birth or adoption of a child. The dissertation will discuss whether the proposed changes were required in South Africa and will look at the law before the amendments were effected. Further the dissertation looks at whether the 10 days provided for working fathers is sufficient. This dissertation will provide a comparison of certain developed and developing countries in order to show whether South Africa has now caught up,
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    Derivative misconduct and the reciprocal duty of good faith: employee silence in identifying perpetrators of misconduct.
    (2019) Pillay, Karyn.; Maqutu, Lindiwe Nomachezi.
    The reciprocal duty of good faith is recognised in our South African labour law which requires employees to not behave in a manner that is detrimental to an employer’s enterprise and should at all times remain faithful and loyal in continuing employment within the business. The reciprocity lies in an employer providing job security and remuneration for work done in furtherance of the business. A breach of the duty of good faith can result in dismissal where an employee merely remains silent in circumstances which calls upon them to divulge pertinent information that could lead to the detection of the perpetrators to the primary misconduct. Employers rely on the notion of derivative misconduct wherein they argue that there had been a breakdown in the trust relationship and draw inferences of guilt attributed to those silent employees in that they knew or ought to have known whom the actual culprits were and make themselves look guilty because of this silence. Due to employers being not able to identify the actual culprits, they in turn dismiss all employees said to be in the vicinity of the impugned misconduct. However, the Constitutional Court has now added that in order for employers to rely on the notion of derivative misconduct, they need to show reciprocity on their part as well. Actually expecting employees to come forth and divulge pertinent information in misconduct investigations, and not act passive in circumstances which requires them to do more, is asking a bit too much of them without providing some sort of protection in return. Protection in these circumstances would be to provide assurance that they would not face victimisation in the workplace by ratting on their fellow peers. This would prevent any injustice to those employees who may actually be innocent and not have any information, but merely remain silent in such circumstances. New Zealand has also codified the principle of good faith in their legislation. South Africa still relies on the common law when applying the principle of good faith. It is submitted that from the investigations conducted, many scholars are of the opinion that this concept is rather complex and to have it codified would actually cause much more uncertainty. Having it codified would merely provide a guideline, however, the courts would still rely heavily on the common law to provide structure to the concept with the courts dealing with the concept on a case by case basis depending on the facts of the case.
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    How do the 2015 LRA amendments impact on widespread practice in relation to TES employees?
    (2019) Khawula, Mandlakhe Florian.; Bernard, Rowena Bronwen.
    In 2014, the Labour Relations Act 66 of 1995 went through significant changes that were aimed at improving the protection of workers in non-standard employment relationships. It is an undisputed fact that prior to the amendments, section 198 provided little protection regarding this type of employment. One of South Africa’s leading labour federations, the Congress of South African Trade Unions (COSATU) was amongst the unions that were protesting against the Temporary Employment Service (TES) system, arguing that the system was exploiting workers and that TESs were the main drivers of the casualisation of labour. The TES system promotes low wages and poor conditions of employment. TES is equivalent to the trading of human beings as commodities therefore they must be banned. To address the dissatisfaction, learning from the Namibian experience in particular, the South African legislature opted for the regulation of the TES industry hence the Labour Relations Amendment Act 4 of 2014 where section 198 was amended to also include section 198A to D of the LRAA. This paper seeks to examine the impact of the amendments on the widespread practice in the workplace specifically in relation to the TES employees, bearing in mind the insistence by trade unions that the TES must be done away with. This dissertation demonstrates that the amendments of the LRA and common law to a certain extent provide a solution to several problems the employees of TES have had prior to the amendments. This development has a significant impact on the improvement of working conditions.
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    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.
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    A critical analysis of violent strikes in South Africa.
    (2020) Jainarain, Shakti.; Bernard, Rowena Bronwen.; Crocker, Angela Diane.
    Violence during strikes is a major problem in South Africa. As time progresses, details of violent strikes are becoming more prevalent and alarming. Violent strikes impact the economy and investment. In addition, violent strikes wreak havoc in the workplace, disrupting business, posing a threat to human life, employment security, and property. This dissertation analyses the laws that regulate strikes. It will be argued that the Constitution and the Labour Relations Act are premised on peaceful strike action. Therefore, this dissertation will consider the social, political and economic factors that cause strikes to become violent as well as factors such as casualization and non-standard employment and its link to strike violence. This dissertation will also consider solutions available to deal with violent strikes which are comprised of legal mechanisms and how employers and employees can adapt their negotiation skills to avoid violence.
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    Progression of South African women in the workplace: a study of the right to development and relevant legal framework that underpins the eradication of gender disparity in the workplace.
    (2018) Moodley, Therusha.; Stevens, Clydenia Edwina.
    High levels of gender inequality in South African workplaces are a primary contributing factor towards women’s lack of career progression. The fundamental purpose of this study was to identify the reasons why women continue to be one of the most vulnerable and marginalised group in the workplace, despite there being international, regional and domestic laws as well as policies and measures to assist the development of women. This dissertation explores particular international and regional instruments pertaining to the right to development and women rights in order to determine their significance in advancing the position of women in the workplace. It was found that due to the lack of effective enforcement mechanisms minimal adjustments are being made to national laws. An in-depth analysis of South Africa’s current legal framework promoting gender equality, non-discrimination and fair labour practices revealed while the country’s constitutional and labour law framework provide numerous avenues to advance women’s progression in the workplace, employers’ failure to comply with such provisions or half-hearted efforts to implement them, disables women’s right to development. Finally, South Africa’s current programme of action aimed at giving practical effect to the country’s gender transformation agenda was highlighted. In prioritising gender parity, the government through various policies seeks to reshape society and the country’s workforce by recognising the challenges impeding women’s development. An analysis of the South African judiciary and mining sector revealed that the gap between laws and policies and the situation on the ground in workplaces across the country, women’s right to development appear to be stifled. Therefore, this dissertation has provided recommendations directly aimed at addressing the barriers which impede women’s right to development and ultimately prevent their progression in the workplace. The goal is to ensure the success of both genders coexisting in the workplace, without the presence of dominance or discrimination.
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    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
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    Workplace protection for informal workers with reference to waste pickers in the Durban Metro area: an exploration of section 24 of the South African Constitution of 1996.
    (2019) Xulu, Phumzile Goodness.; McQuoid-Mason, David Jan.; Pete, Stephen Allister.
    This thesis explores the extent to which the environmental rights contained in section 24 of the South African Constitution of 1996 are potentially applicable to people who work informally in public spaces, in particular, waste pickers in the Durban Metro area. The extent to which environmental rights may be applicable to these workers is measured by first reviewing the current conditions under which waste pickers in Durban work. The study then argues that, in accordance with section 24(a), all human beings have a fundamental right to an environment that is safe and does not threaten their health or well-being. It concludes that waste pickers ought to enjoy protection in their work environment. The research further highlights deficiencies in waste pickers’ entitlement to have their work environment protected through legislative and other measures as provided for by section 24(b), by reviewing the extent in which current legislation and other measures provide for workplace protection for informal workers; who are the working poor. Finally, it gives recommendations on how these deficiencies could be addressed drawing lessons from foreign case law and international experiences which can be adapted to the South African context.
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    Proving constructive dismissal: a critical evaluation of section 186(l)(e) of the Labour Relations Act 66 of 1995 and recent judgments.
    (2018) Cele, Nonkululeko.; Bernard, Rowena Bronwen.
    The focus of the research is to evaluate the interpretation of section 186 ( 1 )( e) of the Labour Relations Act of 1995 which defines a dismissal to include circumstances where an employee resigns with or without notice because the employer has made continued employment intolerable for the employee. The purpose of the research is to set out the appropriate test to be followed in dealing with a constructive dismissal claim in terms of section 186(1 )(e) and assess whether the Constitutional Court has adequately formulated a test to be applied in the case of Strategic Liquor Services v Mvumbi 2010 (2) SA 92 (CC) where it was held that the test for proving constructive dismissal is not whether the employee had alternatives short of resignation but only that the employer made continued employment intolerable. The test formulated by the Constitutional Court will be revisited and the research will further evaluate if there has been progression on the approach adopted by the CC. The focus of the research will be mainly on the evaluation of recent judgments. The significance of adopting a purposive approach when interpreting the LRA is discussed as well as the remedies which follows once an employee succeeds with a claim of a constructive dismissal.
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    Sexual harassment in the workplace : a critical analysis of the unwelcome element.
    (2018) Olivier, Kerrie-Lee Amanda.; Bernard, Rowena Bronwen.
    Sexual harassment is one of the most prominent forms of harassment encountered in the working world globally. This has resulted in a plethora of laws being enacted, whereby, the definition of sexual harassment was provided, and the legal remedies available to the harassed, were established. Of particular importance, regarding the laws, is the different definitions which provide the elements that need to be satisfied before the conduct of the harasser can constitute sexual harassment. The unwelcome element is apposite in almost all jurisdictions when defining sexual harassment which undoubtedly indicates the importance of the unwelcome element. However, this element is difficult to establish in practice, and there is judicial inconsistency as to whose perspective the conduct should be considered unwelcome from, namely that of the harasser or harassed. Furthermore, studies indicate that men are more likely to find sexual connotations in the responses of women, yet women often use less confrontational responses to show that the conduct was unwelcome. The above simply adds to the difficulties in the determination of the unwelcome element which is further fueled by the underdeveloped literature in South Africa on this element. Therefore, this dissertation endeavours to make a contribution to the limited knowledge in the area of sexual harassment by critically analysing and deconstructing the unwelcome element. Thus, the main objective of this dissertation is achieved through a legal comparative study to American jurisprudence, whereby the scholar, Joan Weiner, identified factors that the US courts consider in the determination of whether the conduct of the harasser was unwelcome. The relevance of these factors, in the determination of the unwelcome element, were compared and contrasted to South African case law. The findings from the analysis conducted revealed that even though these factors are seen by courts as an attempt to ensure that liability without fault is not attributed to the harasser, especially where sexual harassment is dealt with as a misconduct, the unwelcome element essentially acts as a roadblock to the harassed in sexual harassment cases. This element is used by harassers, as a defence, to show that the harassed’s conduct if scrutinised closely, indicates that she was welcoming of the conduct of the harasser resulting, in courts analysing the conduct of the harassed for signals to establish the unwelcome element. The main implication is that the harassed is placed on trial detracting from the behaviour of the harasser in sexual harassment cases.
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    The law of unfair dismissal in South Africa.
    (1990) Bennett, Clive Howard.; Hlophe, John.
    As an inexperienced articled clerk I was once consulted by a young widow who had two tiny children with her. She had lost her job and was wanting to know what her rights were. I had never studied any labour law but I had a vague idea that she was entitled to only notice pay. This was the terrible advice she ended up getting and it was only some months later that I realised my error. I had not yet been introduced to the wondrous concept of fairness in law. Nor was I aware of the wonderful remedy of reinstatement which could have returned to this person not only her dignity and her self-esteem, but also the means, in a country wracked by unemployment, of fending off complete poverty. Psychologists have shown that losing a job is one of the most distressing events in life. How much more distressing that loss must be when the dismissal is not fair and how much more devastating, when there is little prospect of finding other employment? This thesis is for all those people who have been unfairly dismissed and who, but for bad advice, might have been placed back in their jobs. It is hoped that it will contribute to the knowledge in this vitally important area of law and so help prevent the giving of unnecessarily bad advice.
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    A critical examination of the pandemic of sexual harassment in the South African workplace.
    (2017) Seenarayan, Swastika.; Whitear-Nel, Nicola Jane.
    South African just like many international countries is a country sadly marked by severe violence especially violence against women. Women face violence both at home in the form of domestic violence as well as in the workplace in the form of sexual harassment. Many studies have been conducted over the years showing us that the statistics surrounding sexual harassment in the workplace is on the increase. Women face sexual harassment no matter the role they may play within the workplace. However, the Constitution the highest law in the land states that no person may be discriminated or harassed in any form within their place of work. This sadly does not decrease the high percentage of sexual harassment cases that do not get reported over time. This is due to women being afraid to report the sexual harassment. This may be for an array of reasons such as fear of losing their jobs or being labelled as trouble- makers. Sexual harassment has over the years in various legal contexts had different definitions however; the South African definition states that the attention that sexual harassment derives must be unwanted. Harassers may range from the ordinary co-worker, to the employer and even a third party such as a client or customer can be the harasser. It is also possible that any innocent acts can also be misconstrued to becoming an act of sexual harassment therefore it is important that readers are aware of what acts constitute sexual harassment and what does not within the working environment. This can also be possible by looking to international law to gauge an international perspective regarding sexual harassment. In an employment context employers are obliged to have sexual harassment policies in place in order to protect their employees from any unwanted sexual harassment. Employees who are faced with sexual harassment are not necessarily female as male employees also face sexual harassment therefore policies and procedures are open to protecting all employees facing unwanted sexual attention or harassment or the employer will be liable to the employee in the form of damages. However, damages are not the only remedy available to employees facing unwanted sexual harassment because the sexual harassment can lead to the employee whose productivity at the workplace or health condition has deteriorated to the extent the complainant suffers from post-traumatic stress disorder or whose emotional well-being had been affected due to the harassment.
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    Whistleblowing: the other side of the coin.
    (2009) Easthorpe, Juanita Anne.; Grant, Brenda.
    No abstract provided.