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1
Odeyemi, Hannah Olubunmi. "A comparison between the approaches to unfair discrimination in employment in South Africa and Nigeria." Thesis, Nelson Mandela Metropolitan University, 2012. http://hdl.handle.net/10948/d1012054.
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Issues concerning employment are some of the most serious issues of our time. But it is in the last two decades or so that these started receiving consideration. For instance, South Africa has experienced changes in the landscape of employment relations in organisations in the last decades. And no area of South Africa law is more critical than the prohibition of unfair discrimination, especially in the workpalce. The enactment of the Constitution brought about the need to eradicate unfair discrimination in the workpalce. Section 9 of the Constitution states that no person may unfairly discriminate directly or indirectly against anyone and that national legislation must be enacted to prevent or prohibit unfair discrimination. To enforce this, certain legislations like the Labour Law Act, Employment Act, Promotion of Equality and Prohibition of Unfair Discrimination Act (Equality Act), were enacted to give effect to the equality provision of the Constitution. In a similar vein, in Nigeria, workplace discrimination which is at the top of human rights violation perpetrated by employers of labour is of paramount concern to legislators and the government. Sex , age, ethinicty, religion, trade union membership and political opinion are some of the grounds upon which workers may not be discriminated against in Nigeria. Section 17 of the Constitution states that the State social order is founded on the ideals of freedom, equality and justice. It goes on to provide that every citizen shall have equality of rights, obligations and opportunities before the law. More specifically, the section stipilates that the State shall ensure that all citizens, without discrimination of any group whatsoever, have the opportunity of livehood as well as adequate opportunity to secure suitable employment and that there is equal pay for equal work without discrimination on account of sex, or any ground. Hence, there are The Nigerian Labour Act, the Federal Character Commission, etc that are saddled with the responsibility of addressing unfair discrimination and giving force to the provision of the Constitution. Despite the anti-discrimination laws and provisions made available in both countries, it is still alarming to see that unfair discrimination in the workplace is still on the increase. This, as will be discussed later, is probably due to factors such as lack of communication, long-stading patterns of educational inequalities that have resulted in inequalities in manpower, differences in drive, motivation, cultural disposition and geographical opportunities, racial difference and ethnicity, domination of one group by the other, etc. This research will briefly focus on the comparison between the approaches to unfair discrimination in employment between South Africa and Nigeria. It will discuss the development of unfair discrimination, grounds on which it is perpetrated, defences relating to unfair discrimination, and anti-discrimination laws put in place by the two jurisdictions to curb discrimination, as well as suggest on how to forestall unfair discrimination.
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Oosthuizen, Tania. "Discrimination based on age in labour law." Thesis, Nelson Mandela Metropolitan University, 2017. http://hdl.handle.net/10948/19484.
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This piece aims to prove that a compulsory retirement age can no longer be justified in South Africa as a constitutional state. In times where people are gradually reaching older ages due to advances in a variety of fields, it seemed that the concept of a compulsory retirement age requires an in depth consideration. This is especially measured against the backdrop of equality and discrimination legislation within The Republic of South Africa. The development of social security law provides the larger framework in which to understand the concept and intentions around retirement. Discrimination and equality legislation demonstrates that age as a listed ground for discrimination does not necessarily simplify the jurisprudence pertaining to it, especially where alternatives have been developed for continued employment. The main point of reference in the South African justice system concerning discrimination disputes is the Harksen v Lane test, whereas the principle encapsulated in Waco v Schweitzer, relates particularly to discrimination based on age. These judgements and subsequent application will be illustrated and considered during the course of this research. The influence of fund rules and fixed-term contracts on the situation will aim to show the reality of the situation. In an effort to show that the problem of an ageing workforce and retirement is not localised to South Africa, an international overview of other constitutional countries is included for context. The comparison goes further to include non-constitutional countries to illustrate the global issue. This comparison was also included in an effort to find alternative strategies that may be utilised in South Africa for retirement and age discrimination legislations and social policies.
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Gixana-Khambule, Bulelwa Judith. "Unfair discrimination in employment." Thesis, University of Port Elizabeth, 2004. http://hdl.handle.net/10948/359.
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In this treatise the South African law relating to unfair discrimination is discussed. The development is traced from the previous dispensation and the few pronouncements of the Industrial Court on discrimination in employment. Thereafter the actual provisions in the law presently applicable, including the Constitution is considered. With reference to leading cases the issue of positive discrimination by adopting affirmative action measures is evaluated and reference is made to other defences like inherent requirements for the job and a general fairness defence. The conclusion is reached that South African law is developing to give effect to the notion of substantive equality with a view to eradicate the systematic discrimination of the past.
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Dlamini, David Vusi. "A comparative study of employment discrimination in South Africa and Canada." Thesis, University of Port Elizabeth, 2004. http://hdl.handle.net/10948/330.
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South Africa and Canada have emerged from a history fraught of inequalities, which were characterised by segregationist practices. Such inequalities have served as an epitome of discrimination taking place in the society and the workplace in both countries. Both South Africa and Canada had their discrimination affecting black peoples (Africans, Indians and Coloureds) and Aboriginal peoples (Indians, Inuits or Métis) respectively, women and people with disabilities. In both countries discrimination has polarised society. It is against this backdrop that both countries have attempted to eliminate unfair discrimination through the promulgation of relevant legislation that seeks to, inter alia, provide the regulatory framework in respect of employment discrimination. With the foregoing in mind, the purpose of this work is the provision of a selection of comparable aspects of employment discrimination in Canada and South Africa. This selection comprises discrimination on the basis of race, gender, sex, pregnancy, age and HIV/AIDS. The study uses, as its departure point, both countries’ constitutional framework to elicit the extent to which protection against unfair discrimination is extended to the workforce. Apart from looking at the constitutional provisions towards the elimination of unfair discrimination, reference is made to specific employment statutory provisions in order to provide a comprehensive and explicit picture of how workplace discrimination in both countries is regulated. The study focuses on substantive law from both countries about the above -mentioned aspects of discrimination. This is informed by the very nature and scope of the study because any concentration on procedural and evidentiary aspects of discrimination could lead to failure to achieve the objectives of the study. It also looks at specific Canadian and South African case law, judgments of the courts and jurisprudence in the field of employment discrimination in order that the reader is presented with a clearer picture of recent developments in addressing workplace inequalities.
5
Loyson, Madeleine. "Substantive equality and proof of employment discrimination." Thesis, Nelson Mandela Metropolitan University, 2009. http://hdl.handle.net/10948/1059.
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This dissertation is a journey through the legislative changes and case law in order to analyse and evaluate the changing nature of South African jurisprudence in respect of the notions of equality, discrimination and affirmative action and the manner in which these issues are proved and dealt with in our courts. It focuses firstly on the emergence of the post-Wiehahn labour laws and the developing jurisprudence concerning discrimination in South Africa towards the end of a long period of isolation from the international world. It witnesses the growing cognizance which was taken of international guidelines and their slow and gradual incorporation into our jurisprudence before the institution of the new democratic government, in the days when the country was still firmly in the grip of a regime which prided itself on its discriminatory laws. It also deals in some depth with the new laws enacted after the first democratic government was installed, especially in so far as the Constitution was concerned. The first clutch of cases dealing with discrimination which were delivered by the Constitutional Court and their effects on decisions of the labour courts thereafter, are dealt with in great detail, indicating how important those judgments were and still are ten years later. A special chapter is devoted to the Harksen case, still a leading authority on how to deal with allegations of unfair discrimination. Having traversed several of the judgments of the labour courts after Harksen, several observations are made in the conclusion of the study which, it is hoped, summarize the major areas of concern in respect of the task of testing claims of unfair discrimination arising in our Courts.
6
Voges, Sarah M. (Arisa). "Discrimination in the workplace." Thesis, Stellenbosch : Stellenbosch University, 2001. http://hdl.handle.net/10019.1/52238.
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Thesis (MBA)--Stellenbosch University, 2001.Some digitised pages may appear cut off due to the condition of the original hard copy
ENGLISH ABSTRACT: The Employment Equity Act of 1998 compels organisations to eradicate all forms of discrimination in organisational processes and procedures. However, an ethical organisation that values and treats all employees in a fair and equitable manner has a definite strategic advantage and organisations therefore need to develop organisational cultures where managing diversity, fair dealing and equity are paramount. Organisations must ensure that optimum performance management practices are established and that rewards are allocated equitably and fairly according to merit. Recruitment and promotion selection procedures must be revised to guarantee fairness. Training and development interventions must be applied fairly to equalise opportunity. A survey conducted amongst MBA students at the USB identified that negative stereotyping and biased treatment persist in management practices. The provision of equal opportunities and managing diversity are concerns that need to be addressed. A good internal process to deal with the eradication of discrimination must be adopted by implementing a non-discrimination policy and conducting discrimination audits. All discrimination complaints must be dealt with speedily and at the lowest possible level. The remedial model developed in this technical report provides a consistent procedure whereby formal and informal complaints of discrimination could be dealt with fairly and effectively to assist organisations in eradicatinq discrimination in the workplace.
AFRIKAANSE OPSOMMING: Die Wet op Gelyke lndiensopneming van 1998 noodsaak die uitwissing van diskriminasie in alle prosesse en prosedures van organisasasies. 'n Etiese organisasie, wat alle werknemers op'n gelyke en gelykwaardige manier behandel en respekteer, het egter 'n strategiese voordeel en dit noodsaak die ontwikkeling van 'n organisatoriese kultuur waar die bestuur van diversiteit, gelyke regte en regverdige handel voorrang moet geniet. Optimale prestasiebestuurspraktyke moet ingestel word en daarvolgens moet alle vergoeding en beloning regverdig, volgens meriete, geskied. Die prosedures vir die keuring van kandidate vir werwing en bevordering moet vir die versekering van regverdigheid hersien word. Opleiding en ontwikkeling moet aangewend word om gelyke geleenthede vir almal te skep. 'n Steekproef wat onder huidige MBA-studente onderneem is, het getoon dat negatiewe stereotipering en bevooroordeling nog op 'n gereelde grondslag in bestuurspraktyke voorkom. Die verskaffing van gelyke geleenthede en die effektiewe bestuur van diversititeit is veral sake wat dringend aandag moet geniet. Dit is belangrik dat organisasies 'n goeie interne proses om diskriminasie uit te roei in werking stel deur die daarstelling van 'n nie-diskriminasie beleid en gereelde diskriminasie ouditte. Alle klagtes van diskriminasie moet spoedig en op die laagste moontlike vlak ondersoek word. Die remediërende model wat in hierdie navorsingsverslag ontwikkel is, verskaf 'n bestendige prosedure waarvolgens alle aantygings regverdig en doelmatig hanteer kan word.
7
Ristow, Liezel. "Sexual harassment in employment." Thesis, University of Port Elizabeth, 2004. http://hdl.handle.net/10948/341.
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Africa as no exception. It is generally accepted that women constitute the vast majority of sexual harassment victims. Sexual harassment is therefore one of the major barriers to women’s equality as it is a significant obstacle to women’s entrance into many sectors of the labour market. The Constitution now provides that no person may unfairly discriminate against anyone on grounds of, inter alia, sex and gender. The Employment Equity Act now provides that harassment is a form of unfair discrimination. It has been said that harassment is discriminatory because it raises an arbitrary barrier to the full and equal enjoyment of a person’s rights in the workplace. Much can be learned from the law of the United States and that country’s struggle to fit harassment under its discrimination laws. The Code of Good Practice on the Handling of Sexual Harassment Cases attempts to eliminate sexual harassment in the workplace by providing procedures that will enable employers to deal with occurrences of sexual harassment and to implement preventative measures. The Code also encourages employers to develop and implement policies on sexual harassment that will serve as a guideline for the conduct of all employees. Although the Code has been subject to some criticism, particularly regarding the test for sexual harassment, it remains a valuable guide to both employers and employees alike. The appropriate test for sexual harassment as a form of unfair discrimination has given rise to debate. Both the subjective test and the objective test for sexual harassment present problems. Some authors recommend a compromise between these two tests in the form of the “reasonable victim” test. The Employment Equity Act makes the employer liable for the prohibited acts of the employee in certain circumstances. The Act, however, places certain responsibilities on the employer and the employee-victim before the employer will be held liable for sexual harassment committed by an employee. Sexual harassment committed by an employee constitutes misconduct and can be a dismissible offence. An employer may also be held to have constructively dismissed an employee, if the employer was aware of the sexual harassment and failed to control such behaviour, and the employee is forced to resign. The test for determining the appropriateness of the sanction of dismissal for sexual harassment is whether or not the employee’s misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. However, for such a dismissal to be fair it must be both substantively fair and procedurally fair.
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Rach, Margaret M. (Margaret Mannion). "The Impact of EEO Legislation Upon Selection Procedures for Transfer, Training and Development and Promotion." Thesis, North Texas State University, 1985. https://digital.library.unt.edu/ark:/67531/metadc331995/.
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Legislation, court decisions, and the changing political and social climate provide evidence of the importance of the outcomes of EEO litigation involving challenged selection procedures for transfer, training and development, and promotion. These selection procedures are being challenged by more informed employees and, in many cases, result in costly litigation. Thus, organizations must be aware of the continuing developments in employment law especially as found in court decisions and related legislation. This study investigates judicial and EEOC decisions in discrimination cases to provide answers to these questions: Are organizations aware of the outcomes of EEO litigation involving challenged selection procedures for transfer, training and development, and promotion? Are organizations aware of what constitutes a discriminatory practice in the selection of employees for transfer, training and development, and promotion? Does management recognize and follow nondiscriminatory procedures in selecting personnel for transfer, training and development, and promotion? The purposes of the study are 1. To analyze outcomes of EEO litigation involving challenged selection procedures for transfer, training and development, and promotion; 2. To develop a model set of guidelines to aid organizations in developing nondiscriminatory procedures for use in selecting employees for transfer, training and development, and promotion. This study concludes that many employers are aware of the outcomes of EEO litigation involving challenged selection procedures for transfer, training and development, and promotion. Many employers are also aware of what constitutes a discriminatory practice in the selection of employees for some employment advantage. However, management does not always recognize and follow nondiscriminatory procedures when selecting employees for transfer, training and development, and promotion. The number of cases in which selection procedures were found discriminatory supports this conclusion.
9
O'Neal, Barbara Jean. "Title VII : sex discrimination in higher education /." Diss., This resource online, 1992. http://scholar.lib.vt.edu/theses/available/etd-10022007-144508/.
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Ledwaba, Lesetsa Joel. "Dismissal due to pregnancy." Thesis, Nelson Mandela Metropolitan University, 2006. http://hdl.handle.net/10948/433.
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Previously, our workplaces were characterised by serious hardships emanating from labour laws which did not always cater for all areas of the employment relationship. South African female employees were without a clear legitimate remedial right precluding any severe violation and infringement to their fundamental rights resulting from their pregnancy; a task they did not opt for in the first place, but was instead, naturally imposed on them as a result of their gender category. Undoubtedly, many female employees were victims of unfair discrimination. The legislature therefore saw it fit to democratise the workplace by making rapid statutory interventions. As a result, a number of significant changes in various spheres of our labour laws were brought in. Amongst the greatly notable valuable changes was the introduction of the Employment Equity Act 55 of 1998. This piece of legislation has generally reformed our industrial society by bringing in the elimination of unfair discrimination and thereby enhancing the principle of equity in the workplace. The act has further touched a place within hearts of female employees for fear of discrimination as a result of their pregnancy status or any reasons related to their pregnancy. The act further codified Industrial Court decisions that were already established under the discrimination law jurisprudence from the Labour Relations Act 28 of 1956. The application of the provisions of the Act has made the employment relationship no longer to be a comfort zone for employers. These general changes to the law also impact on the dismissal law regime. The purpose of this treatise is to give an overview of the applicable legislation and contributions made by the Labour Courts in developing pregnancy dismissal and discrimination law. The Labour Courts have handed down few judgements that have helped in clarifying the provisions of both the current Labour Relations Act and the Employment Equity Act around the topic. One should hasten to say that this has never been a smooth process by the courts. It is further shown in this treatise that some of the court decisions were not well accepted in the light of other important considerations, such as the equality provisions of the Constitution. For the purpose of effectively dealing with this topic, this treatise contains a discussion of the historical context of discrimination law in the form of common-law position, and the discrimination law before the Bill of Rights and the Constitution. It then endeavours to identify the legislative provision of the Act when it comes to discrimination law provisions. At the same time the important court decisions that were made are identified and examined.
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Benihoud, Yasmina. "Regard critique sur le droit français du harcèlement sexuel au travail à la lumière du droit américain et du droit canadien." Thesis, McGill University, 2000. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=42288.
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A few months after having enacted a criminal statute creating the general offence of sexual harassment, the French Parliament enacted the Statute n° 92-1179 "relative a l'abus d'autorite en matiere sexuelle dans les relations de travail". In this statute, as in the criminal statute, the French legislator considers sexual harassment in a peculiar way, and departs from the North-American position on three points:First, while American law and Canadian law understand clearly sexual harassment as a form of sex discrimination, the French approach is more ambiguous. It appears that the French legislator understands sexual harassment more as an infringement to freedom than a form of sex discrimination.
Second, the French legislator has defined sexual harassment in a more restrictive way than in North America. While American law and Canadian law prohibit hostile harassment and sexual harassment by colleagues, these forms of sexual harassment are not prohibited in French law. Finally, on the question of the employer's liability, the French approach is more "timid" than in American law and in Canadian law.
The French legislator has justified its more restrictive approach to the problem of sexual harassment in comparison with the North-American position by two arguments: the fear of the "American 'drift'" and the peculiarity of the relationships between women and men in France. However, it is argued that the choice of the French legislator is not convenient because it leaves a significant number of victims outside the scope of the law, and is not clear enough on the employer's obligations. Furthermore, it is maintained that both arguments of the legislator are more caricatural than real.
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Blackham, Alysia Paige. "Extending working life for older workers : an empirical legal analysis of age discrimination laws in the UK." Thesis, University of Cambridge, 2015. https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.709060.
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Laher, Ismail. "A critical analysis of employment equity measures in South Africa." Thesis, Rhodes University, 2007. http://hdl.handle.net/10962/d1003195.
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This thesis analyses the Employment Equity Act 55 of 1998 and its application in labour law in South Africa. After an initial examination of the general concepts with regards to employment equity and current international conventions regarding employment equity, the study will move on to examine employment equity as it stands in the law today. In examining the current law regarding employment equity, a brief historical background will be offered in order to show the legacy of apartheid: the immense disparity between the different categories of South African people in the modern era. By using this background and analysing the relevant provisions of the Constitution, it will be argued that there is a very real need for employment equity measures to bring about a true sense of equality in South Africa and that such measures are fully endorsed by the Constitution. After it has been established that affirmative action is an important tool in the creation of an equal South Africa, the measures put in place to help create this equal South Africa will be critically analysed. This critical analysis will point out certain weaknesses in the current affirmative action system. Following this critical analysis of the South African employment equity law, the employment equity systems used in Brazil, Canada and Malaysia will be examined in detail. The purpose of this analysis will be to find the strengths and weaknesses and successes and failures of these foreign systems. This will be done in order to highlight those areas of the foreign systems that can be implemented into South African law in order to make the South African employment equity system stronger. The weaknesses of those systems will also be highlighted in order to learn valuable lessons from other system’s failures so that South Africa does not make the same mistakes. The final part of this thesis will be in depth discussions and the proposal of solutions to the weaknesses of the South African employment equity system that have been highlighted throughout the thesis. These proposals will be put forward in order to ensure the most efficient and effective employment equity system in South Africa. There will also be a reassessment of the most valuable lessons learned from the foreign systems that would be easily implemented into or avoided by the South African system in order to ensure an effective employment equity system. The purpose, therefore, of this thesis is to critically analyse employment equity in South Africa. A further purpose will be to propose certain amendments and changes to the current system to ensure the Employment Equity Act is reflective of the needs of the people South Africa.
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KIM, PILKYU. "EMPLOYMENT OF ALIENS IN THE UNITED STATES: A QUESTION OF DISCRIMINATION AS EVALUATED UNDER STANDARDS OF INTERNATIONAL LAW." Diss., The University of Arizona, 1985. http://hdl.handle.net/10150/184198.
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This study is designed to investigate discrimination in employment against resident aliens in the United States as evaluated by both U.S. practices and standards of international law and to determine whether the American treatment of aliens in employment is compatible with the international standard. In order to examine the common assertion that American practices in the treatment of aliens in employment is superior to the international minimum standard, two sets of hypotheses are tested: one on the existence of the minimum international standard, which protects aliens' rights, and the other on the American practice of requiring citizenship for employment, which deprives aliens of equal protection and thereby places the legal position of aliens below the minimum international standard. Three major sources of data for this study involve data from: (1) international arbitrations, conventions and agreements; (2) United States executive, legislative, and judicial decisions and actions; and (3) Immigration and Naturalization Service materials. The major findings indicate that the contemporary minimum international standard includes post-1945 Human Rights instruments together with the traditional minimum international standards. The most significant finding is that the contemporary minimum standard affords aliens the right to work without discrimination and confirms the relevant hypothesis in connection with the minimum standard. The study reveals that aliens in the United States are discriminated against in employment because of alienage at three different levels--federal, state, and private--with more intensity of discrimination at the federal level, despite the equal protection clause in the U.S. Constitution. The study concludes that American employment practice in the period of 1886-1971 was comparable with the international standard. On the other hand, during the 1971-1980 era, U.S. standards were below the minimum international standard as set forth by international law. This confirms the hypothesis, with some modification, that the U.S. practice of demanding citizenship for some employment has undercut the legal position of aliens so that it falls below the minimum international standard.
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Lowery, Christina. "Protection or Equality? : A Feminist Analysis of Protective Labor Legislation in UAW v. Johnson Controls, Inc." Thesis, University of North Texas, 1998. https://digital.library.unt.edu/ark:/67531/metadc279082/.
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This study provides a feminist analysis of protective labor legislation in the Supreme Court case of UAW v. Johnson Controls, Inc. History of protection rhetoric and precedented cases leading up to UAW are provided. Using a feminist analysis, this study argues that the victory for women's labor rights in UAW is short lived, and the cycle of protection rhetoric continues with new pro-business agendas replacing traditional justifications for "protecting" women in the work place. The implications of this and other findings are discussed.
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Loots, Barbara Evelyn. "Geslag en Regstellende Aksie in die Werkplek." Thesis, Link to the online version, 2005. http://hdl.handle.net/10019/1092.
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de, Plevitz Loretta R. "The failure of Australian legislation on indirect discrimination to detect the systemic racism which prevents Aboriginal people from fully participating in the workforce." Queensland University of Technology, 2000. http://eprints.qut.edu.au/29025/.
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Government figures put the current indigenous unemployment rate at around 23%, 3 times the unemployment rate for other Australians. This thesis aims to assess whether Australian indirect discrimination legislation can provide a remedy for one of the causes of indigenous unemployment - the systemic discrimination which can result from the mere operation of established procedures of recruitment and hiring. The impact of those practices on indigenous people is examined in the context of an analysis of anti-discrimination legislation and cases from all Australian jurisdictions from the time of the passing of the Racial Discrimination Act by the Commonwealth in 1975 to the present. The thesis finds a number of reasons why the legislation fails to provide equality of opportunity for indigenous people seeking to enter the workforce. In nearly all jurisdictions it is obscurely drafted, used mainly by educated middle class white women, and provides remedies which tend to be compensatory damages rather than change to recruitment policy. White dominance of the legal process has produced legislative and judicial definitions of "race" and "Aboriginality" which focus on biology rather than cultural difference. In the commissions and tribunals complaints of racial discrimination are often rejected on the grounds of being "vexatious" or "frivolous", not reaching the required standard of proof, or not showing a causal connection between race and the conduct complained of. In all jurisdictions the cornerstone of liability is whether a particular employment term, condition or practice is reasonable. The thesis evaluates the approaches taken by appellate courts, including the High Court, and concludes that there is a trend towards an interpretation of reasonableness which favours employer arguments such as economic rationalism, the maintenance of good industrial relations, managerial prerogative to hire and fire, and the protection of majority rights. The thesis recommends that separate, clearly drafted legislation should be passed to address indigenous disadvantage and that indigenous people should be involved in all stages of the process.
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Ndema, Yondela. "A critical analysis of the law on sexual harassment in the workplace in South Africa in a comparative perspective." Doctoral thesis, University of Cape Town, 2007. http://hdl.handle.net/11427/26615.
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A central feature of sexual harassment in the workplace is that it essentially involves two sides of a coin an impairment of dignity, self-esteem, self-worth, respect, ubuntu, individual autonomy, and equality from a positive aspect and freedom from insult, degrading treatment, disrespect, abuse of trust and unfair discrimination from a negative aspect. The overlap between equality and dignity as founding values of the Constitution, constitutionally entrenched rights, and values underpinning the limitation clause in the Constitution is explored with a view to illustrating why sexual harassment is unacceptable in an open and democratic South Africa. The central theme of the thesis is that the future of the law on sexual harassment lies in the adoption of a multi-dimensional approach which focuses on dignity/ ubuntu because there can never be equality without respect for dignity/ ubuntu which is an essential pillar in the celebration of self-autonomy and humanity in a democratic society. A central focus of the research is that the harm of sexual harassment gives rise to various remedies, which are not mutually exclusive. The plaintiff can use one or more of the available remedies because sexual harassment is potentially a labour issue; a constitutional rights matter; a delict; unfair discrimination and can even manifest itself as a specific offence in criminal law. A wide range of data collection methods were used including reference to South African judicial precedent; legislation; selected foreign case law; the Constitution; textbooks; journal articles; feminist theories; and international conventions. The aim is to underscore the impairment suffered by women through sexual harassment, which includes economic harm, psychological harm, unfair discrimination, work sabotage, unequal access to employment opportunities and abuse of organizational power by supervisors. The multiple facets of the harm of sexual harassment such as treating women as sub-human, un-equal and as sub-citizens in total disregard of their constitutional rights, self-autonomy and ubuntu is highlighted in an effort to identify the essence of sexual harassment. The judicial tests, which determine whose perception of the nature of sexual harassment is decisive, are described. The focal point of the thesis advocates a judicial test for identifying sexual harassment, which is gender neutral, objective, and promotes the objects, purport, and spirit of the Bill of Rights by offering equal protection before the law. A critique of the current law on sexual harassment in South Africa is conducted in the light of the common-law principles of vicarious liability. An evaluation is made of how and to what extent the South African case law is compatible with Canadian and English authorities. This was done by broadening the scope of employment test to include approaches compatible with an abuse of power and trust; frolic of one's own; enterprise risk; mismanagement of duties; and abuse of supervisory authority and the sufficiently close nexus between the wrongful conduct and the employment. The United States supervisory harassment approach, which focuses on sexual harassment as an abuse of power or trust in employment relations, is critically regarded as having truly captured the essence of the risk of abuse inherent in the supervisor's delegated power. Statutory vicarious liability in terms of labour law is underscored because it is distinct from the common-law principles of vicarious liability in creating an element of deemed personal liability on the part of the employer for failure to take steps and ensure the eradication of gender discrimination. It is observed that women cannot be liberated as a class (gender equality) if they are not liberated as autonomous individuals (dignity). It is concluded that South African law is in harmony with the Canadian and English authorities on sexual harassment in the workplace and has the potential to deal adequately with sexual harassment cases in the workplace but only if attention is paid to the proposed emphasis and suggestions made in the thesis.
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Lawlor, Ryan Mark. "Vicarious and direct liability of an employer for sexual harassment at work." Thesis, Nelson Mandela Metropolitan University, 2007. http://hdl.handle.net/10948/825.
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Sexual harassment is an ever increasing drain on the resources of the modern employer, as well as serving to take up much time in terms of legal battles and court cases. The concept of sexual harassment has undergone much revision over the past decades, and South Africa is now firmly committed to the eradication of this problem. The Constitution protects and enshrines important rights like dignity, equality and the right to fair labour practices. These are further defined and protected through the application of various statutes, including the LRA, EEA, PEPUDA and the revised Code of Good Practice. In terms of statutory liability, the employer will be liable for the harassment of its employees, unless it takes a proactive stance and implements comprehensive sexual harassment policies. In this way it will escape liability. The common law vicarious liability of the employer cannot be escaped as easily. The entire concept of the law of delict is to remedy harm suffered. In terms of the common law, employers will be held vicariously liable for the harassment of their employees if it can be shown that the harassment occurred within a valid working relationship, if the harassment actually occurred through a delict, and if the act occurred within the course and scope of employment. The best way for employers to minimize their liability for sexual harassment is the implementation of training and educational policies that serve to make employees aware of what is permissible in the workplace. This will aid the employer in showing that it has done everything possible to reduce the risk of harassment, which will in turn serve to reduce the employer’s liability. To protect against the risk of expensive litigation, many employers are now investigating the matter of liability insurance – they would rather pay increased premiums than suffer alone when their employees take legal action against them. Sexual harassment is a problem that can only be solved through a concerted effort on the part of the legislature, judiciary, employers and employees. Together, these parties must ensure that all of those involved in the world of work are aware of the problem of harassment, as well as taking steps to educate and train employees so as to prevent it. Only in this way will we be able to take action to reduce this terrible problem in our country.
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Muzuva, Arthurnatious. "Vicarious libality for sexual harassment at work." Thesis, Nelson Mandela Metropolitan University, 2011. http://hdl.handle.net/10948/d1011386.
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Sexual harassment has been in existence for a long time in the workplace without any attempt to understand, define and effectively combat this rather undesirable and serious form of misconduct. Until fairly recently, the growing problem of sexual harassment and its damaging effect have been given much attention by legal authorities and society at large. The effect of sexual harassment is that it embarrasses or humiliates the victim. The victim may also suffer from trauma which, in turn, affects his/her performance at work. Numerous definitions have been provided on what constitutes sexual harassment. Sexual harassment takes place when a women‟s sexual role overshadows her work role in the eyes of the male, whether it be a supervisor, co-worker, client or customer. In other words, her gender receives more attention than her work. Sexual harassment is also seen as unwanted conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace.1 The Bill of Rights in the Constitution2 entrenches the rights of everyone. Worth mentioning are the “right to equality”, “the right to dignity”, “the right to privacy” and “the right to fair labour practices”. Furthermore, section 6(3) of the Employment Equity Act3 states that “harassment is a form of unfair discrimination” which is prohibited in terms of section 6(1) of the same Act. Section 60 of the Employment Equity Act deals with statutory vicarious liability where the employer is held liable for his acts and/or omission to take measures to against sexual harassment or a failure to put a grievance procedure in place. Where such an employer has done what is reasonably necessary to prevent and to address sexual harassment, he/she will escape liability for the misconduct of the employee. This section also provides for mechanisms that an employer may employ to minimise liability where harassment has taken place. In addition to statutory vicarious liability is the common law vicarious liability, where the employer is vicariously liable for the delict of the employee. This form of liability is also referred to as “no-fault liability”. The employer will be held liable where the following requirements for vicarious liability in common law are met: firstly, there must be an “employer-employee relationship”, secondly, a “delict must be committed” and thirdly, the “employee must have been acting in the scope or course of employment when the delict was committed”. Liability can also be directly imputed on the employer. In this instance, it has to be proven that “the employer committed an act or omission; the act or omission was unlawful; the act or omission was culpable, intentional or negligent, and a third party suffered harm; either patrimonial damage or injury to personality; and the act or omission caused that harm”.
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Meyer, Malcolm James. "Challenges facing the implementation of the employment equity act in public FET colleges in the Western Cape." Thesis, Cape Peninsula University of Technology, 2014. http://hdl.handle.net/20.500.11838/1949.
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Dissertation submitted in fulfilment of the requirements for the
MAGISTER EDUCATIONIS
in the Faculty of Education at the
Cape Peninsula University of Technology
2014The apartheid system caused severe pain, injustice and financial loss to the majority of South African people. To redress the aftereffects of racial discrimination in the workplace, the Employment Equity Act (EEA) of 1998 was established. While there is some research on the challenges of implementing the EEA legislation in universities, there is a paucity of research on the difficulties faced by Further Education and Training (FET) Colleges. The purpose of this research project was to investigate the extent to which the EEA has been implemented in public FET Colleges located in the Western Cape Province, with the specific objective of identifying possible barriers to the implementation of the EEA in these Colleges. The research question was: What types of challenges1, or barriers (if any), exist in the implementation of the EEA in public FET Colleges in the Western Cape? This study is informed by critical social theory. The design of research in this study is both qualitative and quantitative. Data were collected from Deputy Chief Executive Officers (Corporate Services), Human Resources Managers and Campus Heads from each of the four Colleges. Semi-structured, open-ended interviews and documentary analysis were used. Data were analysed quantitatively and qualitatively. Four of the six FET Colleges in the Western Cape Province were selected on the basis of their geographical location and the diversity of their personnel. Results revealed that in public FET Colleges in the Western Cape, white males and coloured females dominate top management positions. Data further showed that the Indian group is the least represented at both top and bottom levels of these FET Colleges. Although white females are fewer than their coloured female counterparts in top positions, they are nonetheless more than double the number of their black female counterparts. These results have serious implications for implementation of EEA legislation in general, and in the Western Cape specifically.
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Lake, Rosalind. "Discrimination against people with mental health problems in the workplace : a comparative analysis." Thesis, Rhodes University, 2006. http://hdl.handle.net/10962/d1005712.
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For a long time the rights of disabled persons have been ignored worldwide. A major obstacle faced by disabled persons is discrimination in the workplace. Due to the development of a social approach to disability and the efforts of the Disability Rights Movement, legislation has been passed throughout the world to improve this dire situation. The thesis considers the efficacy of some of these statutes. It is concluded that stigma and negative stereotypes remain a constant hurdle in overcoming discrimination. The forthcoming UN Disability Convention is demonstrative of the recognition of the importance of the needs and rights of disabled people. The convention proposes some innovative measures to overcome stigma and stereotyping. Mental health problems constitute one of the leading causes of disability. The thesis explores how people with mental health problems fit within the concept of people with disabilities and whether they are included in anti-discrimination legislation and affirmative action measures. Special attention is given to statutory definitions of disability, the different forms of discrimination and the concept of reasonable accommodation. A comparative approach is taken to analyse how South Africa's disability law measures up against that of Britain and Australia in terms of its substantive provisions and enforcement thereof. In considering the South African position American and Canadian jurisprudence is consulted in order to aid in interpretation. It is concluded that although South Africa has a comparatively good legislative framework, it is held back by an overly restrictive and medically focused definition of disability. As a result many individuals with mental health difficulties, desirous of obtaining and retaining employment may be excluded from protection against discrimination in the workplace. It is argued that it will be necessary either to amend the Employment Equity Act or for the courts to adhere strictly to the concept of substantive equality in order to ensure that the rights and dignity of people with mental health difficulties are adequately protected.
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Burton, Colin Peter. "The legal consequences of failure to give effect to affirmative action measures." Thesis, Nelson Mandela Metropolitan University, 2013. http://hdl.handle.net/10948/d1012904.
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In South African law, affirmative action has been a very controversial topic over the years. 5 Controversial issues such as perceptions and reactions of affirmative action in the South African context are varied. 6 These reactions are often categorised as politically explosive and emotionally charged. 7 Most people fear the implications of affirmative action, more specifically the impact thereof on their individual positions within the workplace.8 Those who feel threatened by these measures, tend to question the political and ethical legitimacy thereof. 9 Those who stand to benefit from these measures often dislike the labelling associated with these measures. 10 Confusion also exits in greater society about relationship between the equal opportunity, black advancement, affirmative action and diversity management paradigms and related practices. The sources of conflicting reactions to affirmative action stem from individual, group and cultural believes and values which were both shaped by the political realities of the previous regime and the ideals people cherish for themselves in the current dispensation. Colonialist and apartheid laws, policies and practices which were racist and patriarchal provided for separate societies for blacks, whites, Indians and coloureds. 11 At this point in time separate labour systems with job reservation were applicable for whites. There were also wage differentiations between white and black people and between sexes. 12 Furthermore, disabled people were kept dependant and there were also discriminatory legislative provisions against them. 13 This history of systemic discrimination and its resulting inequality and entrenched disadvantage for black, coloured and Indian women and the disabled, was and still is well-known both nationally and internationally. 14 Internationally, apartheid has been extensively disapproved. Examples hereof include the United Nations that declared apartheid and its impact a “crime against humanity” and a negation of the United Nations Charter, 15 expressions of censure culminated in the adoption of the International Convention on the Suppression and Punishment of the Crimes of Apartheid16 and the expulsion of South Africa from the United Nations and its agencies. 17 Nationally, on the other hand, South Africa promulgated several legislative pieces namely, the Constitution, the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and the Employment Equity Act 55 of 1998.
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Mgcodo, Yolanda Thandile. "Affirmative action in terms of the Empolyment Equity Act." Thesis, University of Port Elizabeth, 2004. http://hdl.handle.net/10948/356.
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The term affirmative action originated in the United States some 30 years ago to describe a process of liberating minority groups. The objective of affirmative action within an organisational context, is to democratise the workplace by enabling members of previously disadvantaged groups to progress higher up the ranks of the corporate world. The affirmative action drive only took off in South Africa when it became part of the democratisation process and the focus was directed towards liberating the historically disadvantaged black majority. Prior to 1994, the reasons for implementing affirmative action programmes were largely political because of the race-based discrimination. Historically disadvantaged people were a minority in senior positions, the reason being that although the blacks were given a chance to compete with their white counterparts, due to their poor education standards and lack of experience only a few was appointed. The Employment Equity Act 55 of 1998 aims to correct the demographic imbalances in the nation’s workforce by compelling employers to remove barriers to advancement of blacks, coloureds, Indians, women and disabled, and actively to advance them in all categories of employment by affirmative action. The Employment Equity Act consists of two main sections. The first replaces and refines the prohibition on unfair discrimination in item 2(1)(a) of Schedule 7 of the Labour Relations Act. The second aspect deals with imposing a duty to the employers to adopt affirmative action programmes. The Employment Equity Act places a positive obligation on all employers “to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice”. Where unfair discrimination is alleged, the onus of proving that discrimination is fair, or practice is not discriminatory at all, rests upon the employer. Disputes about unfair discrimination must be referred to the CCMA, and if not settled by conciliation, to the Labour Court, which has the power to order compensation or the payment iv of damages, or to direct the employer to take steps to prevent the same unfair discrimination or similar practice occurring in the future in respect of other employees. The second section of the Employment Equity Act deals with the imposition of the duty to designated employers to adopt affirmative action programmes. All employers with more than 50 employees, or which have annual turnovers equal to or above the annual turnovers for small businesses of their class, municipalities, organs of state, and those designated as such by collective agreement, must implement affirmative action measures for people from designated groups. This entails consulting with employers, conducting an analysis of employment policies, practices, procedures and the working environment to identify barriers, drawing up employment equity plans and reporting thereafter to the Director-General of the Department of Labour on progress made in implementing the plan. Any employee may bring alleged contraventions of the Act to the attention of the employer, another employee, or any trade union, workplace forum, labour inspector or the Director- General of the Employment Equity Commission. Labour inspectors appointed under the Basic Conditions of Employment Act may enter and inspect employer’s properties and documents, and are responsible for ensuring that the employer has consulted with employees as required, conducted the pre-equity plan analysis prepared its plan and is implementing it, submitted and published its reports, set up the necessary managerial infrastructure, and informed its employees of progress. Should employers be found not to have complied with these requirements, labour inspectors must request a written undertaking that they will do so. If an employer fails to give such an undertaking, the labour inspector can issue a compliance order setting out inter alia what steps the employer must take and when, and the maximum fine, if any, that can be imposed if the employer fails to comply. If the employer does not pay attention to the compliance order within the prescribed period, the Director-General may apply to have it made an order of the Labour Court. The Director-General may also conduct independent ad hoc reviews of selected designated employers. Failure by an employer to comply with the provision of the Act lead to the employer being liable for the contravention of the Act.
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Rangoato, Sello Joshua. "Discrimination based on HIV/AIDS status in the workplace." Thesis, University of Limpopo, Turfloop Campus, 2013. http://hdl.handle.net/10386/1108.
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Thesis (LLM. (Labour Law)) -- University of Limpopo, 2013This mini-dissertation outlines the protection of rights of people living with HIV/AIDS in the workplace. It will highlight the fact that people living with HIV/AIDS can perform the work as long as they medically fit. It will show the need to promote anti discriminatory laws in the workplace. People think that HIV/AIDS can be transmitted through casual contact but that will be shown in the study that HIV/AIDS can not be transmitted by casual contact. The mini-dissertation also outlines the need to educate employees about their rights more particularly those living with HIV/AIDS in the workplace. Therefore policies such as affirmative action must be implemented to affirm several advantages to people living with HIV/AIDS. Equality is what people must enjoy in the country in terms of section 9 of the Constitution including people living with HIV/AIDS.
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Ncume, Ali Zuko. "The programmatic enforcement of affirmative action." Thesis, Nelson Mandela Metropolitan University, 2015. http://hdl.handle.net/10948/5521.
Full textAbstract:
Historically, racism was deeply rooted in the workplace in South Africa where white people were largely afforded better opportunities than their black counterparts. This position changed after South Africa became a democratic country. In the new South Africa, legislation has been adopted to combat unfair discrimination. This legislation is founded upon the equality clause contained in section 9 of the Constitution of the Republic of South Africa. Section 9 prohibits unfair direct or indirect discrimination against any person on any of the listed grounds. It also makes provision for protection against unfair discrimination on unlisted grounds. The Employment Equity Act was enacted to bring equality to the workplace and to give effect to section 9(2) of the constitution. The Employment Equity Act promotes equal opportunities and fair treatment and seeks to eliminate unfair discrimination. Section 6 of the Employment Equity Act contains the main thrust of the Act’s prohibition against unfair discrimination. However not all discrimination is unfair. Section 6(2) of the Employment Equity Act provides that discrimination based on the inherent requirements of a job or in terms of affirmative action measures will not be unfair. This section implies that there are grounds of justification which may cause discrimination to be fair. These grounds are affirmative action and inherent requirements of a job. Affirmative action is a purposeful and planned placement and development of competent or potentially competent persons in or to positions from which they were debarred in the past. Affirmative action is an attempt to redress past population, on local and national level. One of the requirements of affirmative action in South Africa is that it must target persons who have been discriminated by unfair discrimination in the past. There are affirmative action measures incorporated in the Employment Equity Act. There exists also a designed programmatic enforcement of affirmative action measures.
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Howard, Ryan Michael. "A clarification of the use of multiple regression analysis in meeting the burden of proof in compensation discrimination litigation." Thesis, Stellenbosch : Stellenbosch University, 2005. http://hdl.handle.net/10019.1/50238.
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Thesis (MComm)--University of Stellenbosch, 2005.ENGLISH ABSTRACT: The new set of employment equity laws call for South African organisations to justify their compensations systems. During compensation discrimination litigation, evidence is required to support arguments put before the court in order to meet the burden of proof. The similarity between foreign and domestic legal systems, suggests that the operational implications of foreign legislation will also be relevant to South Africa. This raises the debate as to the nature of fairness in the compensation context, the debate of comparable worth and the use of multiple regression analysis. The organisation must present to the court evidence to show that the choice of compensable constructs, their measurement and application does not discrimination directly or indirectly based on group membership. Multiple regression analysis, a statistical method to model the compensation system, is fraught with difficulties and misunderstanding. It is nevertheless the most appropriate method to investigate compensation fairness. Comparable worth and multiple regression analysis require assessment in the South African context. The issues, which hindered the successful use of multiple regression analysis abroad, are reviewed in order to smooth its entry into South African litigation. A framework is presented based on literature and case law whereby all parties concerned can produce and evaluate such evidence
AFRIKAANSE OPSOMMING: Die nuwe Anti-Diskrimineringswetgewing verlang van Suid-Afrikaanse organisasies om salarisstelsels te regverdig. Gedurende salarisdiskriminasielitigasie word bewys verlang om die bewyslas oor te dra. Die gelyksoortigheid van buitelandse en binnelandse regstelsels gee te kenne dat die operatiewe implikasies van buitelandse wetgewing relevant tot Suid-Afrika sal wees. Dit bevraagteken die aard van billikheid in die kompensasie konteks, die debat van vergelykbare waarde en die gebruik van veelvoudige regressieontleding. Die betrokke party moet bewys aan die hof toon om te bevestig dat die keuse van vergoedingskonstruksie, sowel as die meting en toepassing daarvan, nie onregverdig diskrimineer, ten opsigte van demografiese groepe me. Veelvoudige regressieontleding 'n statistiese metode wat gebriuk kan word om die salarissisteem voor te stel. Alhoewel dit vele onduidelikhede bevat, is dit steeds die mees toepaslike metode om salarisbillikheid te ondersoek. Vergelykbare waarde en meervoudige regressieontleding is in die Suid-Afrikaanse konteks geëvalueer. Die aspekte wat die sukses van die gebruik van meervoudige regressieontleding in ander lande verhinder het, is ondersoek en geëvalueer om die toekomstige toepassing daarvan in Suid-Afrika te vergemaklik. 'n Raamwerk gebaseer op literatuur en gevalle studies word voorgestel, waar al die betrokke partye sodanige bewys kan produseer en evalueer.
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Kasika, Richard. "The defence of inherent requirements of the job in unfair discrimination cases." Thesis, Nelson Mandela Metropolitan University, 2006. http://hdl.handle.net/10948/450.
Full textAbstract:
The discrimination jurisprudence in South Africa has developed over the previous decade since the promulgation of the interim and final Constitutions. The Employment Equity Act of 1998 also gave impetus to the development of equality jurisprudence with reference to the workplace. In terms of both the Constitution and the Employment Equity Act, unfair discrimination is forbidden. Both the Constitution and Employment Equity Act list specific grounds on which discrimination would be regarded as unfair. Although discrimination on any of the listed grounds would be regarded as automatically unfair, there is realisation that this cannot be an absolute position. The Employment Equity Act makes provision that employers be able to justify discrimination even on the listed grounds where there are justifiable reasons. In terms of the EEA, it is not unfair discrimination to differentiate between employees on the basis of an inherent requirement of the particular job. It is this defence that is considered in the present treatise. The inherent requirements of the job as a defence in unfair discrimination cases is one, which needs to be carefully considered it in fact requires a clear understanding of what constitutes an inherent requirement. It is equally important to understand that although in one instance it may be justifiable to exclude certain employees on the basis of an inherent requirement of the job, a generalisation may give an employer difficulties under certain circumstances. An employer who is faced with a prospective employee who suffers from a particular illness that would make it impossible to do the job, could raise the defence of an inherent requirement of the job. However, the fact that a particular employee has the same illness as the previous one not employed does not give an employer an automatic right to exclude all prospective employees who suffer from the same illness without having had consideration of their circumstances as well as those of their illnesses. The defence of inherent requirements of the job is therefore valid only where the essence of the business would be undermined by employing or not employing people with certain attributes required or not required to do the job.
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Nconco, Mpumelelo. "Substantive equality and affirmative action in the workplace." Thesis, Nelson Mandela Metropolitan University, 2012. http://hdl.handle.net/10948/1617.
Full textAbstract:
During the apartheid era in South Africa there was an unequivocal commitment to white supremacy, segregation and inequality. Discrimination but not on the basis of race was entrenched by the pre-democratic government. The 1980‟s saw the first steps towards reversing such practices through various measures, in the form of formal equality. Formal equality holds that the state must be act neutrally in relation to its employees and must favour no one above another. It assumes that all people are equal and that inequality can be eradicated simply by treating all people in the same way. Formal equality is therefore blind to structural inequality. Substantive equality in contrast to formal equality holds the value that equality is not simply a matter of likeness, that those who are different should be treated differently. The very essence of equality is to make distinction between groups and individual in order to accommodate their different needs and interests. It considers discrimination against groups which have been historically advantaged to be qualitatively aimed at remedying that disadvantage. The Constitution Act 108 of 1996 confers the right to equal protection and benefit of the law and the right to non discrimination. Prohibition of unfair discrimination in itself is insufficient to achieve true equality in a historically oppressed society. Hard affirmative action measures are required, the Constitution further explicitly endorses such restitutionary measures. Affirmative action is a systematic, planned process whereby the effects of colonialism and racial discrimination are being reversed in all areas if life. It is designed to achieve equal employment opportunities. In order to achieve this goal the barriers of the workplace which restrict employment and progressive opportunities have to be systematically eliminated through proactive programmes. Affirmative action is a delicate instrument of social engineering which must be used with caution. The Employment Equity Act 55 of 1998 gives effect to the constitutional provisions and to regulate affirmative action measures in employment. The Employment Equity Act spells out the beneficiaries, who should do the protection, and advancement and what may happen to employers if they fail to comply in the view of the Director-General of the Labour. However the explicit constitutional and legislative endorsement of affirmative action comes with its controversy and legal challenges and it has been left to the courts to resolve tension on the one hand and to ensure equal treatment on the other.Abstract
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Clark, Tony Rodney. "The impact of employment equity legislation on land reform delivery within the provincial land reform office of the department of rural development and land reform in the Western Cape." Thesis, Cape Peninsula University of Technology, 2011. http://hdl.handle.net/20.500.11838/2106.
Full textAbstract:
Thesis (MTech (Public Management))--Cape Peninsula University of Technology, 2011.The main objective of this research was to evaluate the impact of Employment Equity Legislation on land reform delivery within the Provincial Land Reform Office of the Department of Rural Development and Land Reform in the Western Cape Province. In order to achieve this goal the researcher conducted a literature search of relevant books, journal articles, academic papers, news paper articles, legislation and subordinate legislation, policy documents, official reports, other applicable published and unpublished research materials. In conjunction with the literature search, the researcher developed a survey questionnaire to establish whether employment equity legislation does have a negative impact on land reform delivery within the provincial land reform office in the Western Cape. The survey was conducted arnonqst 60 employees within the Provincial Land Reform Office in Cape Town, including the District Offices of the Provincial Office. Fifty four (54) responses were used in the analysis, which represent a 90% rate of return. Based on the findings of the literature study and the empirical survey, 51.9% respondents' are of the opinion that the implementation of employment equity legislation does have a negative impact on land reform delivery within the provincial land reform office of the Western Cape. The researcher recommends that the department should consider using provincial demographics when employing staff within its provincial offices to ensure a more stable workforce. This is a true reflection of the responses as the majority of the respondents (81.5 %) agreed that Employment Equity (EE) targets should be based on provincial demographics rather than national demographics, whilst 13% of the respondents disagreed with this statement. Seventy seven comma eight percent (77.8 %) of the respondents also agreed that EE should reflect the target market being served. This will go a long way to foster good employer - employee relationships.
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Papu, Mzimkulu Gladman. "The obligation on employers to effect affirmative action measures." Thesis, Nelson Mandela Metropolitan University, 2017. http://hdl.handle.net/10948/19738.
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Since 1994, South Africa has undergone socio-economic, political and demographic transformation. The Employment Equity Act (No 55) of 1998 aims to facilitate workplace transformation through the elimination of unfair discrimination and the implementation of affirmative action measures to enable equitable representation of employees in all occupational categories and levels in the workplace. This legislation was amended on 1 August 2014, and South Africa has watched with keen interest to see what the impact of the amendments to the Employment Equity Act would be on the world of work. For many it was to see whether job seekers and individuals from the designated groups experienced equity in access to the workplace and fair treatment in employment. For others, it was to see to what extent businesses would either benefit from its accountability and fairness to all employees or suffer from increased regulatory compliance to employment equity and affirmative action amendments. At the heart of the amendments was a need to make the South African Constitution real for South Africans in facilitating work inclusive environments in which people are enabled and motivated to contribute to the goals of the organisation. The state must respect, protect, promote and fulfil the rights in the Bill of Rights, one of these rights being equality. Affirmative action as a component of employment equity is inherently part of the process of increasing and managing diversity and identifying barriers to fair employment. Transformation does make business sense. No business will survive in the long-run, unless it reinvents itself and constantly adapts to the ever-changing demands of an increasingly competitive global environment in which it operates. An organisation’s ability to create a work culture in which diversity management is effectively managed is more likely to experience the positive effects thereof on its business. Organisations require a diverse workforce with the requisite multidisciplinary talents and knowledge to achieve its goals in an ever-changing environment. The evaluation of the extent of the progress and the narrative is to be drawn from the reported workplace demographics. This is made up of statistical analyses of the representation of individuals from designated groups at different occupational levels, as well as training and progression of designated employees by reporting employers. The ultimate test of transformation however, is in the extent to which employees would vouch for the inclusivity of the workplace environment and the total absence of unfair discrimination based on listed and arbitrary grounds. For the Commission to be able to comment on the experience of diversity management and inclusion as part of employment equity, a different approach needs to be taken. I am excited to share that the Commission’s strategic plan for the period 2016 to 2021 has prioritised the need to go beyond workforce demographic statistics and move towards a better understanding of the experience of fair treatment, diversity and “inclusion” Management. There is a significant shift in the way in which the Commission is approaching its work, in the interest of the country. It is not the aim of the Commission for Employment Equity to focus its attention on the punitive measures for non-compliance only, and accordingly the third Commission hosted the Employment Equity Awards, which recognise the good work done by organisations towards furthering the transformation agenda. The third Commission moreover developed a number of Codes of Good Practice to support the implementation of employment equity. A lot of ground was covered to enable the fourth Commission to focus on their mandate more effectively. We are grateful for their hard work and we wish them well as we look forward to realising our objectives. On a different note, the United Nations offices in New York were a hub of activity and rigorous debate during the March 2016 Summit on the Status of Women. One of the themes extensively interrogated at the summit was “Women Empowerment in the economic space”. Globally, not enough is happening to turn the economic status of women. The United Nations Sustainable Goal 5 is “Gender Equality”. A 50-50 target has been set for female representivity at all occupational levels globally. South Africa needs to work towards this goal as part of their contribution. The Summit echoed the words “Women leaders in the business world is everyone’s business”. It would do us proud in the future to be able to report significant progress in this area. Another topical issue was “Equal Pay for Work of Equal Value”. Three countries, namely Canada, Sweden and Iceland have committed themselves to pay parity across gender by 2022. South Africa on the other hand has already enacted this policy. We need to see significant change in this area. In line with the discussions during the summit, I would also like to encourage designated employers in South Africa to review policies in favour of transparency around remuneration. This will go a long way in creating an enabling environment for elimination of unfair discrimination in the workplace.
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Aberceb, Carvalho Gatto Maria Luiza. "Endogenous institutionalism and the puzzle of gender quotas : insights from Latin America." Thesis, University of Oxford, 2016. https://ora.ox.ac.uk/objects/uuid:5859e964-af84-4f1e-a9e9-d2157b95db3b.
Full textAbstract:
Given their potential to negatively impact men's goal of staying in office, can gender quotas be aligned with the preferences of male legislators who adopt the policy? In other words, does the rapid spread of gender quotas worldwide challenge notions of the rationality of legislators as career-driven individuals? These are the main questions that drive this thesis. To answer these questions, I develop a prospect theory-based framework that accounts for how electoral security and political ambition impact legislators' behaviour in influencing the strength of gender quota designs. I argue that, faced with growing pressures to adopt gender quotas, male parliamentarians engage in the risk-taking process of assenting with gender quotas, meanwhile seeking to minimize the potential costs of the policy to their future careers by actively weakening quota designs. To evaluate the plausibility of my theory, I employ a series of multi-method and multi-level analyses presented across five substantive chapters, each of which is respectively based on: 1) a cross-sectional analysis of Latin America countries; 2) an elite survey experiment with Brazilian state legislators; and, in-depth process tracing of the cases of gender quota adoption in 3) Costa Rica; 4) Brazil; and, 5) Chile. The work makes three main contributions. Firstly, although previously identified, the resistance of male legislators towards gender quotas had never been systematically analysed in a comparative manner; focusing on the behaviour of male incumbents is thus a relevant contribution. Secondly, although various authors have provided explanations for the origins of gender quota adoptions, no work had ever comparatively assessed sources of the variation in gender quota designs. Thus, I move the study of gender quotas beyond the binary choice of adoption. Thirdly, I show that the static assumptions of endogenous institutionalism need to be modified by the introduction of risk, which can only be achieved by integrating the insights of prospect theory.
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Tshiki, Pakamisa Washington. "The unfair labour practice relating to benefits." Thesis, Nelson Mandela Metropolitan University, 2005. http://hdl.handle.net/10948/386.
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At the outset of this treatise the development of the unfair labour practice is traced. The point is made that common law knows nothing about fairness and it is pointed out that the concept was introduced as a statutory concept in 1979. In 1995 the development of unfair labour practices since 1979 was relied upon to provide a list of unfair labour practices. The main thrust of the treatise concerns an evaluation of an unfair labour practice relating to benefits – listed presently in section 186(2) of the Labour Relations Act. Reference is made to Industrial Court cases and case law since 1996 is considered and commented upon. In particular, the issue of remuneration not being a benefit, and the fact that interest disputes are not justiciable as unfair labour practices for instance are canvassed.
34
Venter, Trace Joan. "White women's long 'work' to freedom : an analysis of the inconsistencies surrounding the inclusion of white women in affirmative action." Thesis, Stellenbosch : Stellenbosch University, 2004. http://hdl.handle.net/10019.1/50229.
Full textAbstract:
Thesis (MPhil)--Stellenbosch University, 2004.ENGLISH ABSTRACT: Since 1994 the new ANC led South African Government has introduced a number of policies that have been aimed at promoting equality in all spheres of life including the employment sector. Forming an important part of these policies has been the upliftment of women who were severely discriminated against under the former Apartheid government. But in recent years uncertainty has risen over whether white women should be included in these upliftment policies. The research problem this thesis tries to address consists of two related problems. Firstly inconsistency seems to exist between the government's two different upliftment policies namely Affirmative Action and Transformation with regards to the inclusion of white women. The second problem is that inconsistency exists between people's opinions over whether white women should be included in policies aimed at promoting equality in the employment sector. This thesis used both qualitative and quantitative methods to address the research problem. With regards to the first problem this thesis studied Affirmative Action legislation the most important being the Employment Equity Act as well government's Transformation policies the most important being the Black Economic Empowerment Act in order to identify the inconsistencies that exist between the two. In order to address the second problem this thesis studies the qualitative arguments of academics for and against the inclusion of white women in Affirmative action. Two case studies are also included which identify the experiences of African and white women in the employment sector under Affirmative Action. Once this is done this thesis moves onto a quantitative method of measurment by study the results of the Markinor M-Bus survey conducted in 2004 in order to identify the opinions of the general South African population with regards to the inclusion of white women in Affirmative Action. The results of the M-Bus survey is also used to test the hypotheses introduced in this thesis. These hypotheses aim at identifying whether demographic variables affect South African's opinions on the inclusion of white women in Affirmative Action. Six demographic variables were studied namely race, gender, political party support, education, income and age. This thesis clearly finds that Affirmative Action and Black Economic Empowerment do not correspond with each other with regards to the inclusion of white women in Affirmative Action. While this thesis identifies that tension exists between academics supporting the inclusion of white women in Affirmative Action and those opposing it, it argues that it is difficult to discem which group is right especially when this thesis tries to maintain an objective position. After studying the results of the M-Bus survey this thesis finds that overall the general South African population is seen to oppose the inclusion of white women in Affirmative Action. After testing the hypotheses this thesis also finds that age and gender do not affect South African's opinions with regards to the inclusion of white women in Affirmative Action. They therefore do not play the role of independent variables. Education, income, political party support and race are found to play the role of independent variables. This thesis argues that these four demographic variables are all components forming a larger composite independent variable in the study. This thesis also argues that some of these demographic variables may play the role of more significant independent variables than others. Race is argued as being possibly the most significant independent variable within this composite independent variable affecting income, political party and education. It is also seen to affect gender and age. Education is also argued by this thesis as possibly being a more signi ficant independent variable than income and political party support. This thesis concludes by arguing that education could possibly replace race in the future as the most significant independent variable which affects the opinions of South Africans with regards to the inclusion of white women in Affirmative Action. This would have a positive affect it could narrow the racial cleavage existing between race groups in South Africa today. This thesis also concludes by arguing that the inconsistency that exists between Affirmative Action and the Government's Transformation policies as well as the polarization of opinions between South Africans with regards to the inclusion of white women in Affirmative Action has a negative affect on democratic consolidation.
AFRIKAANSE OPSOMMING: Sedert 1994 het die nuwe Suid-Afrikaanse regenng, onder leiding van die ANC, verskeie nuwe beleide in werking gestel wat daarop gemik is om gelykheid in alle sfere van die samelewing te bevorder, insluitende die indiensneming-sektor. 'n Belangrike deel van hierdie beleide is die opheffing van vroue, teen wie daar swaar gediskrimineer was tydens die Apartheid regering se bewind. Daar het egter in die onlangse verlede onsekerheid onstaan oor die insluiting van blanke vroue in hierdie opheffingsbeleide. Die navorsingsprobleem wat deur hierdie tesis aangespreek word bestaan uit twee verwante probleme. Eerstens blyk dit dat daar 'n teenstrydigheid bestaan tussen die regering se twee opheffingsbeleide, Regstellende Aksie en Transformasie, wat die insluiting van blanke vroue betref. Die tweede probleem is die meningsverskil wat bestaan in die openbare mening oor die insluiting van blanke vroue in beleide wat daarop gemik is om gelykheid te bevorder in die indiensneming-sektor. Hierdie tesis het kwalitatiewe sowel as kwantitatiewe metodes gebruik om die navorsingsprobleem aan te spreek. Met betrekking tot die eerste probleem, het hierdie tesis die Regstellende Aksie wetgewing, wat die Wet op Gelyke Indiensneming sowel as die regering se Transformasie beleide, waarvan die Wets op Swart Ekonomiese Bemagtiging die belangrikste is, bestudeer om die teenstrydighede wat tussen die twee is te identifiseer. Kwalitatiewe argumente, vir en teen die insluiting van blanke vroue in Regstellende Aksie, word bestudeer om die tweede probleem aan te spreek. Twee gevalle studies word ook ingesluit wat die ervarings van swart vroue en blanke vroue in die indiensneming-sektor onder Regstellende Aksie identifiseer. Wanneer dit afgehandel is, beweeg die tesis na 'n kwantitatiewe metode van meting deur die resultate van die Markinor M-Bus meningsopname, wat in 2004 plaasgevind het, om die algemene Suid-Afrikaanse publiek se opinies met betrekking tot die insluiting van blanke vroue in Regstellende Aksie te peil. Die resultate van die M-Bus meningsopname word ook gebruik om die hipoteses wat deur hierdie tesis aangebied word te toets. Hierdie hipoteses mik daarna om uit te vind of demografiese veranderlikes Suid-Afrikaners se menings oor die insluiting van blanke vroue in Regstellende Aksie beïnvloed. Ses demografiese veranderlikes word bestudeer, naamlik ras, geslag, ondersteuning van 'n politieke party, opvoeding, inkomste en ouderdom. Daar word duidelik bevind dat Regstellende Aksie en Swart Ekonomiese Bemagtiging nie met mekaar korrespondeer ten opsigte van die insluiting van blanke vrouens in Regstellende Aksie nie. Terwyl hierdie tesis die spanning tussen akademici wat die insluiting van blanke vroue steun en die wat daarteen gekant is erken, stel dit voor dat dit moeilik is om vas te stel watter groep reg is, veral wanneer daar gepoog word om 'n objektiewe beskouing te handhaaf. Namate die resultate van die M-Bus meningsopname bestudeer is, vind hierdie tesis dat die algemene Suid-Afrikaanse publiek gekant is teen die insluiting van blanke vroue in Regstellende Aksie. Nadat die hipoteses getoets is, vind hierdie tesis dat ouderdom en geslag nie Suid- Afrikaners se menings oor die insluiting van blanke vroue in Regstellende Aksie beïnvloed nie. Geslag en ouderdom speel daarom nie die rol van onafhanklike veranderlikes nie. Opvoeding, inkomste, ondersteuning van 'n politieke party en ras speel wel die rol van onafhanklike veranderlikes. Hierdie tesis voer aan dat hierdie vier demografiese veranderlikes almal komponente vorm van a groter, saamgestelde onafhanklike veranderlike. Verder word daar aangevoer dat sommige van hierdie demografiese veranderlikes 'n belangriker rol as ander mag speel. Ras word voorgestel as die mees belangrike onafhanklike veranderlike binne hierdie saamgestelde veranderlike, wat inkomste, ondersteuning van politieke party en opvoeding beïnvloed. Dit blyk ook dat geslag en ouderdom beïnvloed word. Daar word ook aangevoer dat opvoeding moontlik 'n belangriker onafhanklike veranderlike is as inkomste en ondersteuning van 'n politieke party. Die tesis word afgesluit met die argument dat opvoeding in die toekoms ras as die mees belangrike onafhanklike veranderlike kan vervang betreffende die invloed op menings van Suid-Afrikaners ten opsigte van die insluiting van blanke vroue in Regstellende Aksie. Dit sal 'n positiewe invloed hê in die sin dat dit die rasseverdeeldheid wat steeds in Suid-Afrika heers kan verminder. Verder kom hierdie tesis tot die gevolgtrekking dat die teenstrydighede wat tussen Regstellende Aksie en Swart Ekonomiese Bemagtinging bestaan sowel as die polarisasie onder Suid- Afrikaners se menings ten opsigte van die insluiting van blanke vroue in Regstellende Aksie, 'n negatiewe uitwerking op demokratiese konsolidasie het.
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Dell, Jodi B. "Reasonable accommodation under the Americans with Disabilities Act of 1990." FIU Digital Commons, 1993. http://digitalcommons.fiu.edu/etd/2767.
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The Americans With Disabilities Act (ADA) of 1990 requires that employers provide "reasonable accommodations" for qualified individuals who have a disability, provided that doing so does not result in "undue hardship". There are several guidelines that employers have been given to evaluate the reasonableness of job accommodations. Unfortunately, these guidelines have been criticized as being vague and ambiguous.
Specific factors considered when determining whether or not to grant an accommodation under the ADA have yet to be examined in psychological research. The current study evaluated the impact of cost of accommodations, position level of the employee, and attitudes of raters for their effects on judgements of the reasonableness of requests and on subjects' likelihood of honoring requests. Results showed that accommodations were rated as more reasonable and were recommended to be honored more often for higher level positions than for lower level positions. Measures of attitudes toward disabled persons, both in general and in the workplace, did not have many significant correlations with the dependent measures. Implications of the findings and ideas for future research are discussed.
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Jones, Stephen C. (Stephen Clark). "Predicting Small Business Executives' Intentions to Comply with the Americans with Disabilities Act of 1990 Using the Theories of Reasoned Action and Planned Behavior and the Concept of Offender Empathy." Thesis, University of North Texas, 1998. https://digital.library.unt.edu/ark:/67531/metadc277842/.
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This study attempted to determine if the theories of reasoned action (TRA) and planned behavior (TPB), as well as a relatively new construct called offender empathy, could help to predict the intentions of small business executives (SBEs) to comply with the employment provisions of the Americans with Disabilities Act (ADA) of 1990.
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Gouws, Erika. "An investigation of the factors necessary in the development of a retention strategy for a financial organization." Thesis, Rhodes University, 2013. http://hdl.handle.net/10962/d1008198.
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rhe research study investigated the factors necessary for the development of an organizational retention ;trategy for a financial organization pertaining to key equity employees. Equity employees are those employees jescribed as such in the Employment Equity Act 55 of(1998). Bussin's (2002) Total Rewards Model was used as the theoretical framework for the study. The investigation was conducted within an interpretive paradigm and employed a qualitative methodology. Thematic analysis was used in the interpretation of the three data sources gained access through the data collection process. A previously completed employee relationship audit's findings, and the data derived from nine exit interviews formed the basis for the twenty-four semi-structured individual interviews, which were conducted with a sample ofthe employees. A purposive sampling technique enabled the identification of particular employees, who were the equity participants in the study. An additional component of the Total Rewards Model, namely Talent Management was identified from an analysis of the results. Six salient factors were highlighted in the investigation. The factors identified were: A need for a short-term incentive plan, which would provide recognition above and beyond an employee's monthly salary. The need for career development opportunities. The utilization of new skills from the training initiated by the organization. The representation of women and Black people in senior management positions. The need for formal performance support. The standardization of the recruitment process, the management of unrealistic or unattainable expectations and listening to employees' concerns.KMBT_363
Adobe Acrobat 9.54 Paper Capture Plug-in
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Ben-Galim, Dalia. "Equality and diversity : the gender dimensions of work-life balance policies." Thesis, University of Oxford, 2008. http://ora.ox.ac.uk/objects/uuid:d078b9c7-ceab-454c-a1b6-09ebe88fb725.
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This thesis analyses the gender dimensions of work-life balance policies in the UK. It focuses on three related questions: firstly, to what extent are work-life balance policies framed by 'diversity'; secondly, how does this impact on the conceptualisation and implementation of work-life balance policies (in government and in organisations); and thirdly, what are the implications for gender equality? Through analysing published research, the UK Government's work-life balance agenda and data generated from three selected case study organisations, the prominent dimensions of diversity that shape the conceptualisation and implementation of work-life balance policies are presented. This thesis argues that the concept of diversity - as defined by the feminist literature - offers the potential to progress gender equality through overcoming the same-difference dichotomy, and by recognising multiple aspects of identity. However, this theoretical potential is not necessarily reflected in practice. With the emphasis on the individual worker and choice, diversity has been primarily defined as 'managing diversity', and has a significant affect on how work-life balance policies have been applied in both government policy and organisational practice. The UK Government states that work-life balance policies are meant to provide everyone with opportunities to balance work with other aspects of life. The current policy framework targets parents and in particular mothers, potentially limiting the choices that men and women have to 'work' and 'care'. Locating work-life balance policies within the context of 'managing diversity' supports and facilitates women's employment, but does not necessarily challenge fundamental gender disparities such as occupational segregation and gender pay gaps. Analysis of the UK Government's current agenda and organisational case studies show that despite progressive equality, diversity and worklife balance agendas, work-life balance policies are limited in challenging persistent structural gender inequalities.
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Hess, Allison. "The constraints SMMEs experieince whilst attempting to recover skills levies from the W&RSETA." Thesis, Cape Peninsula University of Technology, 2009. http://hdl.handle.net/20.500.11838/1747.
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Thesis (MTech (Human Resource Management)--Cape Peninsula University of Technology, 2009This thesis explores the barriers/constraints that the SMME may experience whilst attempting to recover their skills levies from the wholesale and retail SETA (W&RSETA). Skills development legislation was introduced in South Africa to address the previous disparities in education and training. The Skills Development Levies Act (SOLA) of 1999 established the introduction of skills levies. The SOLA stipulated that all companies with an annual payroll in excess of R 500 000 would be required to pay skills levies to the South African Revenue Service (SARS). SARS then distributes the funds to the relevant sector education and training authority (SETA). The company would then have the option of recovering up to seventy percent of its skills levies, provided that it had implemented various skills development and training initiatives throughout the year. While larger companies may be more attuned in terms of recovering these levies, small, micro and medium enterprises (SMMEs) may experience difficulties in doing so. The research design included a descriptive study of both qualitative and quantitative components. The investigation was conducted by interviewing twenty stakeholders within the wholesale and retail sector. The stakeholders were divided into two categories, namely SMMEs and the assistants to SMMEs. The information was analysed within the context of the twenty stakeholders interviewed who were located in the Westem Cape area and registered with the W&RSETA. The findings indicated that the main constraints that SMMEs may be experiencing whilst attempting to recover their skills levies from the W&RSETA included: a lack of understanding of the grant recovery system; lack of time; burdensome administration; a lack of finance; and a lack of communication and support from the W&RSETA This research would be a pilot study that would provide a basis for a future study which may seek to provide practical recommendations to policy makers both in govemment and the private sector, in terms of assisting levy paying SMMEs within the W&RSETA to recover skills levies.
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Jacot-Descombes, Marie-Thérèse. "Plaider en chien et loup: métamorphoses du sens, métabolisme des effets dans les pratiques de construction du savoir, en droit social." Doctoral thesis, Universite Libre de Bruxelles, 2005. http://hdl.handle.net/2013/ULB-DIPOT:oai:dipot.ulb.ac.be:2013/211041.
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La recherche part du constat de "l'érosion de la protection globale dont se trouvait dotée la communauté des travailleurs …" Causes de cette érosion, l'activité législative, mais aussi l'évolution de la jurisprudence ;en effet, "aucun texte n'est si clair que son application ne doive s'accompagner du choix de son sens et de sa portée et qu'il ne dispense le lecteur – et donc le juge, interprète privilégié – d'une reformulation de la règle.". Comment le juge reformule-t-il la règle, quels sont les moyens dont il dispose ou use pour ce faire, quelle est son implication dans cette érosion ?La recherche, soutenue par une réflexion à la fois juridique, politique et philosophique, analyse des décisions judiciaires, leurs commentaires, et des articles de doctrine, qui ont en commun de paraître consacrer cette érosion.
La première partie de ce travail porte sur l'éradication des inégalités entre travailleurs masculins et féminins par le recours à des discriminations positives, par le biais de ce que Dworkin appellerait un "hard case" :un arrêt de la Cour de Justice des Communautés Européennes du 17 octobre 1995, statuant quant à la conformité de la législation d'un état membre à la directive européenne du 9 février 1976 relative à la mise en œuvre de l'égalité de traitement entre hommes et femmes en ce qui concerne l'accès à l'emploi, à la formation et à la promotion professionnelles, et les conditions de travail. La haute juridiction y fait bifurquer l'idée en deux concepts, l'égalité des chances et l'égalité des résultats, les définit puis les oppose ;ensuite, elle disqualifie la législation de l'état membre, au motif que celle-ci favorise l'égalité de résultats et non la seule égalité des chances. L'analyse décrit cette construction par la Cour d'un savoir juridique de l'égalité ;elle s'inquiète de la conformité de ce savoir au droit communautaire, du bien-fondé d'une bifurcation entre chances et résultats, et de ses effets sur les inégalités entre hommes et femmes.
Sa deuxième partie porte sur la construction du savoir du droit social, en général. Elle en exhibe certains ingrédients et évalue leurs agencements :la manière dont sont traités les faits, les diverses sortes d'intérêts à l'origine de la production de jurisprudence, la maîtrise du langage et l'art de convoquer le droit, et le pouvoir du praticien d'affecter et d'être affecté par le droit et son milieu. Elle pointe deux grandes bifurcations :celle entre dire le droit et juger quant au fond ;et celle entre "juridiquement correct" et "juste". Elle observe à quelles conditions la jurisprudence devient source effective de droit et se divise en courants majoritaire et minoritaire. Elle distingue deux moments dans la pratique juridique, et deux modes d'existence du jugement. La construction de la motivation, ajustée à tel litige particulier, constitue le moment créatif, qui aboutit au jugement vivant, à l'usage des protagonistes. Ce même jugement, s'il est diffusé dans les médias juridiques, connaît une autre forme d'existence, au sein du corpus jurisprudentiel commun ;si les juristes sont libres de s'y référer ou de l'ignorer, il nourrira un nouveau moment créatif, à titre d'exemple de savoir-faire ;le moment dogmatique, lui, est celui où le système judiciaire se saisit des énoncés de tel jugement vivant pour les imposer, en tant que savoir a priori, lieux de passage obligés, mots d'ordre, limitant ainsi le champ de possibles ouvert à l'activité créatrice.
Doctorat en philosophie et lettres, Orientation philosophie
info:eu-repo/semantics/nonPublished
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Rooi, Jakob. "n Ondersoek na die stand van transformasie by Media24." Thesis, Stellenbosch : Stellenbosch University, 2004. http://hdl.handle.net/10019.1/50042.
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Thesis (MPhil) -- University of Stellenbosch, 2004ENGLISH ABSTRACT: After 1994, the year in which the first democratic election in the country was held and which placed South Africa irrevocably on the road to the creation of a new society, many institutions had to change to adapt to the new circumstances. All government and private institutions were compelled to adhere to transformation requirements. This study investigates the damage to blacks in the period before 1994, as well as the legal instruments and other regulations of the new government to assist black empowerment, with a view to creating a more equal society. The transformation of media institutions is a subject which, up to now, has not yet been researched thoroughly. This study was undertaken to establish the progress that has been made by Media24, a Naspers affiliate. The paper discusses the practical problems surrounding transformation, specifically those attached to an historic Afrikaans "white" institution like Media24. The conclusion which was derived at after interviews with top management, is that the company's leadership has moved into a position where transformation isn't questioned any more. Practical efforts are now being made to accelerate affirmative action and transformation. An audit of Media24 which was completed in 2004, and which is indicative of the company's achievements according to the transformational charter for black economic empowerment, was studied. The result shows that Media24 has made excellent progress in some areas, but has failed to achieve the desired results in others. Resulting from this, Media24's management began to set specific goals in order to be able to adhere to certain legal requirements (which includes, amongst others, affirmative action) within a specific time frame. Some of the proposals in this study include: That Media24's upcoming leadership should be measured against its ability to understand the requirements to do business in a new, diverse society; that more successful communication measurements be instituted around transformational processes and measurements and that a transformational ombud be appointed to highlight shortcomings and to help accelerate the process. The study has not exhausted the subject and, with transformation being an ongoing process, it is recommended that it be investigated further.
AFRIKAANSE OPSOMMING: Ná 1994, die jaar waarin die eerste demokratiese verkiesing in die land gehou is en Suid-Afrika onherroeplik op pad na die skepping van 'n "nuwe samelewing" geplaas is, sou baie instellings moes verander om by die nuwe omstandighede aan te pas. Alle staats- en private instellings sou aan transformasievereistes onderhewig wees. Dié werkstuk ondersoek kortliks die benadeling van swart mense in die tydperk voor 1994 en die wetlike instrumente en ander maatreëls van die nuwe regering om swart bemagtiging te help versnel en 'n meer gelyke samelewing te help skep. Die transformasie van media-instellings is 'n onderwerp wat nog nie behoorlik nagevors is nie en dié studie is aangepak om vas te stel hoe ver Media24, 'n filiaal van Naspers, gevorder het daarmee. Die praktiese probleme rondom transformasie word uitgelig, spesifiek dié by'n histories Afrikaanse "wit" instelling soos Media24. Die afleiding wat gemaak word uit onderhoude met die topbestuur van Media24 is dat die maatskappy se leierskap verby die punt is waar transformasie bevraagteken word. Praktiese pogings word nou aangewend om regstellende aksie maatreëls te versnel en transformasie vinniger te laat geskied. 'n Oudit van Media24 wat in 2004 uitgevoer is en wat die maatskappy se prestasie volgens die bemagtigingstelkaart vir swart ekonomiese bemagtiging aandui, is bestudeer. Die resultaat daarvan het getoon dat Media24 op sekere gebiede van swart bemagtiging goed vaar, maar op ander gebiede ver agter is. Media24 se bestuur het na aanleiding hiervan bepaalde teikens begin stelom die wetlike vereistes, wat onder meer regstellende aksie insluit, binne 'n sekere tydperk na te kom. Van die voorstelle in die studie sluit in: dat Media24 se opkomende leierskorps gemeet word aan die mate waarin hulle die vereistes verstaan om in die nuwe, diverse samelewing sake te doen, daar groter kommunikasie in die maatskappy moet wees oor transformasieprosesse- en maatreëls en dat 'n transformasie-ombud aangestel word om op tekortkominge te wys en die proses te help versnel. Die studie het nie die onderwerp uitgeput nie en verdere navorsing kan aangepak word, veralomdat transformasie 'n deurlopende proses is.
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Sinclair, Donna Lynn. "Caring for the Land, Serving People: Creating a Multicultural Forest Service in the Civil Rights Era." PDXScholar, 2015. https://pdxscholar.library.pdx.edu/open_access_etds/2463.
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This qualitative study of representative bureaucracy examines the extension and limitations of liberal democratic rights by connecting environmental and social history with policy, individual decision making, gender, race, and class in American history. It documents major cultural shifts in a homogeneous patriarchal organization, constraints, advancement, and the historical agency of women and minorities. "Creating a Multicultural Forest Service" identifies a relationship between natural and human resources and tells a story of expanding and contracting civil liberties that shifted over time from women and people of color to include the differently-abled and LGBT communities. It includes oral history as a key to uncovering individual decision points, relational networks, organizational activism, and human/nature relations to shape meaningful explanations of historical institutional change. With gender and race as primary categories, this inquiry forms a history that is critical to understanding federal bureaucratic efforts to meet workforce diversity goals in natural resource organizations.
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Walt, Alex. "Age discrimination in labour law : a comparative inquiry." Thesis, 2012. http://hdl.handle.net/10210/5616.
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LL.M.Age discrimination first arose in the post-industrial revolution period. Prior to that most people earned a living through a connection to the land. Agriculture was a family affair with all members contributing to the task, from the youngest to the oldest, according to their abilities. As the ability for labour waned, older people tended to be cared for by their families. Those who did not work on the land were mostly self-employed artisans and crafts people, such as cobblers, carpenters and blacksmiths, and they worked to whatever schedule they wished. Also, tools used at that time were different to those used today and expertise was achieved through age and experience, so that a tradesman such as a goldsmith was a more skilled artisan if he had 30 years experience than an associate with considerably less experience. Age discrimination in employment just did not occur because there was little employment by large impersonal corporations.
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Naicker, Pravashini. "Discrimination and the law with particular reference to recruitment strategies and policies as adopted by various countries." Thesis, 1998. http://hdl.handle.net/10413/5304.
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Naidu, Kasturi Melanie. "Indirect discrimination against women in the workplace." Thesis, 1997. http://hdl.handle.net/10413/5221.
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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.Thesis (LL.M.)-University of Natal, Durban, 1998.
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Netangaheni, Mphiriseni Irene. "A comparative analysis of employment discrimination in South Africa and Canada." Thesis, 2012. http://hdl.handle.net/10386/708.
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Thesis (LLM. (Labour Law)) -- University of Limpopo, 2012The purpose of the study is to address the effects of employment discrimination in the workplace focussing on designated groups, by comparing South Africa and Canada. Canada is one of the few countries that have addressed the employment barriers of target groups with one encompassing piece of legislation. In this study reference was made at the constitutional provisions towards unfair discrimination, labour law materials, employment and statutory provision so that the future researcher could see where employment discrimination in South African and Canada originate and what is the position. In order to address employment discrimination in the workplace case laws, courts judgments and other jurisprudence were used. The scope focused in this study is broad as a researcher did not look at other forms of employment discrimination. Employment discrimination in South Africa and Canada exists, this implies that the employment discrimination between two countries could be comparable. Policies and practices in order to identify employment barriers facing the disadvantaged groups were discussed. Therefore critical look focused on the employment systems, policies and practices at workplaces and also identify employment barriers facing designated groups in relation to recruitment, job classification, remuneration, employment benefits, conditions of services and promotion. South Africa and Canada emanated from a historical background of inequalities. Such inequalities lead to discrimination. South Africa and Canada’s discrimination affected blacks, Aboriginal people, women and people with disabilities. The grounds of discrimination were discussed in full for both countries.
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Mhungu, Valentine. "Positive discrimination in South African employment law : has affirmative action overstayed its welcome?" Thesis, 2013. http://hdl.handle.net/10413/10993.
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Tebele, Stephen Maloko. "Analysis of discrimination on the basis of sexual orientation in the workplace." Thesis, 2013. http://hdl.handle.net/10386/967.
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Thesis (LLM. (Labour Law)) -- University of Limpopo, 2013Like other forms of prohibited discriminations, discrimination on the basis of sexual orientation has become an area of concern in the workplace. The law prohibits discrimination in whatever form and declares it unlawful to discriminate people on the basis of sexual orientation. In this work, South African anti- discrimination provisions on the basis of sexual orientation will be emphasized, whereas foreign countries will only be referred to for the sake of comparative analysis. Discrimination of lesbian, gay, bisexual, transsexual and homosexual people (LGBTH) in the workplace is manifested by harassment and constructive dismissal through homophobia. Homophobia is a psychological concept which refers to the hatred of people after declaring their gay, lesbian or homosexual identities. This study reveals homophobic practices towards homosexuals as if they are not beneficiaries of contemporary democratic laws and dividends of democracy enshrined in Chapter 2 of the RSA Constitution of 1996 and Chapter 2 of the Employment Equity Act (EEA) 55 of 1998. To this, the research revealed an interesting corroboration in section 9(4) of the RSA Constitution of 1996, and section 6(1) of the EEA 55 of 1998, which provide that no person may unfairly discriminate another on the grounds of sexual orientation. The study has also revealed that among others, employment rights of people in South Africa and in foreign countries are being violated on the basis of sexual orientation. In most case laws, people who disclosed to their employers, that their gender identities are different to what was expected as straight genders and those who informed their employers about their intentions to undergo sex change surgeries are being hired and fired. The study also proved a point that when it comes to sexual orientation exclusion and discrimination, the same vulnerable groups of gays and lesbians are as well caught up in practices of sodomy and sexual harassments. Therefore, the remedies suggested by this research will also apply to everyone including gays and lesbians. To avoid controversy and issues, statutes and decided court cases have been stated as they are, in chapter 4 of this research, for the sake of comparative analysis in order to unravel the existing state of affairs through approaches from different jurisdictions.
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Nxumalo, Lindani Goodman. "Disability discrimination and undue hardship within the working environment: a critical analysis." Diss., 2014. http://hdl.handle.net/10500/19171.
Full textAbstract:
South Africa is faced with a huge challenge of disability discrimination and inequality. Disabled people are not enjoying equal treatment as compared to others. Those who are on the working sector are not reasonable accommodated. The study examines challenges faced by people with disabilities. The study further submit that people with disabilities should be reasonably accommodated and be retained in the working sector as they have a positive role to play in the economy. The study also looks at the various legislations and argues that they are ineffective as they fail to address the imbalances of the past. The study further suggest that there is a need for all people to understand disabled people and not to isolate them as such stigma cause people with disabilities to be unfairly discriminated against in society and in employmentCollege of Law
L.L.M (Commercial Law)
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Harmse-Truter, Laurentia. "Disability, discrimination and equal opportunities : a comparative labour law study." Thesis, 2012. http://hdl.handle.net/10210/5967.
Full textAbstract:
LL.D.This study aims to investigate the different ways in which the position of people with disabilities can be addressed. Antidiscrimination legislation can play a very important role. Efforts to create equal opportunities must, however, not be limited to legislative initiatives and policy declarations. There is an urgent need for education and training of this minority group. 7 Systematic efforts to heighten public awareness of civil rights and in particular the recognition of the rights of the disabled community are imperative. This study aims to bring home the truth that "disability rights are an idea and ideal whose time has come. ,, When addressing the issue of disability discrimination (or for that matter any kind of discrimination) several principles need to be addressed, the most important being the following: The meaning of the concept of "equality" needs to be established. The fact that all people are equal, does not necessarily mean that all people must be treated the same. When speaking about disability discrimination one must know who forms part of the protected class. For that reason the first issue that must be addressed is the definition of "disability": This leads to the next question, namely which individuals should be protected by anti-discrimination laws and should they benefit from affirmative action measures? What is meant by the term "discrimination"? Is it at all permissible to distinguish between groups of people and, if so, when and which standards are to be applied? What role can anti-discrimination legislation fulfil in the struggle for equality? When dealing with anti-discrimination legislation, what is required in order to prove discrimination and what remedies must be available to an aggrieved party? Normally, in case of criminal action proof is required beyond reasonable doubt and in case of civil action on the balance of probabilities. 10 Civil action offers more effective remedies, but should it be punitive in nature (by awarding damages to the aggrieved party) or non-punitive (by putting the aggrieved party in his/her "rightful place")? What sort of enforcement mechanism is needed? Is it a task for the ordinary tribunals or rather a special body created for that purpose? What defences should be available to an employer accused of discriminatory practices? Who should benefit from enforcement? Only the individual victim or all members of that group? Is anti-discrimination legislation sufficient or is something in addition called for? If positive measures are required, what form must these measures take? This study will address these questions specifically with relation to people with disabilities.The "equality principle" will first be studied. Thereafter the concept of "disability" will be defined. There is a movement away from a medical model of disability towards a social model that takes account of the disabling effects of attitudes and structural barriers on the position of disabled people. Then the concept of "discrimination" will be addressed. Discrimination has many different forms and can take place in different contexts In the following chapter possible solutions to the problem of disability discrimination will be raised. Thereafter follows an important comparative analysis of different jurisdictions on international, supra-national and national level. Different jurisdictions have reached different stages in addressing this problem. The factual analysis of each jurisdiction will include the existence of any anti-discrimination legislative measures, the scope of the protected class, applicable employment provisions, defences available to employers, and the success achieved in addressing the problem. The contentious issue of affirmative action measures will also be addressed. By drawing inferences from the comparative study, suggestions will be made for future developments in South Africa. The conclusion is reached that it is imperative for South Africa to draft disability anti-discrimination legislation that takes account of the needs of this minority group. Legislative initiatives, however, are not enough and must be supported by various programmes aimed at the disabled themselves and the community that they live in. Only then can human rights become a reality also for people with disabilities.