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1
Medem, Andreas von. "Kündigungsschutz und allgemeines Gleichbehandlungsgesetz : die Integration der Diskriminierungsverbote der Richtlinien 2000/78/EG, 2000/43/EG und 76/207/EWG in das deutsche Kündigungsschutzrecht /." Berlin : Duncker & Humblot, 2008. http://d-nb.info/989741230/04.
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Reichegger, Heidi. "Die Auswirkungen der Richtlinie 2000/78/EG auf das kirchliche Arbeitsrecht unter Berücksichtigung von Gemeinschaftsgrundrechten als Auslegungsmaxime /." Frankfurt am Main [u.a.] : Lang, 2005. http://www.gbv.de/dms/spk/sbb/recht/toc/478523416.pdf.
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Tse, Sau-kuen. "Labour policy and the protection of the legal entitlements of private sector employees." [Hong Kong : University of Hong Kong], 1992. http://sunzi.lib.hku.hk/hkuto/record.jsp?B13236416.
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Matthews, John. "The legal issues relating to human resources for foreign investors in Hong Kong and/or China." Thesis, Click to view the E-thesis via HKUTO, 1995. http://sunzi.lib.hku.hk/HKUTO/record/B38627814.
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Tse, Sau-kuen, and 謝秀娟. "Labour policy and the protection of the legal entitlements of private sector employees." Thesis, The University of Hong Kong (Pokfulam, Hong Kong), 1992. http://hub.hku.hk/bib/B31964163.
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Sawall, Sandra. "Die Entwicklung der Arbeitsgerichtsbarkeit /." Aachen, Germany : Shaker, 2007. http://bvbr.bib-bvb.de:8991/F?func=service&doc_library=BVB01&doc_number=016137064&line_number=0001&func_code=DB_RECORDS&service_type=MEDIA.
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Gauss, Tanja Claudine. "The extension of employment rights to employees who work unlawfully." Thesis, Nelson Mandela Metropolitan University, 2011. http://hdl.handle.net/10948/1569.
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South Africa has over the years and particularly since the enactment of our new Constitution, attracted an increasing number of foreigners. One of the main problems associated with the large number of illegal immigrants in this country is that they are placing strain on South Africa‟s already scare resources such as housing and healthcare. A further problem is that these illegal immigrants are competing with South Africans for jobs which are already scarce, and thus aggravating the unemployment situation. Nevertheless, these illegal immigrants are being employed and by virtue of their circumstances are easily exploited and often the victims of cheap labour, corruption, eviction and assault. Given that these workers are illegal immigrants not in possession of the required work permits, their employment is prohibited by the Immigration Act 13 of 2002. They are thus illegal workers. Another category of illegal workers are those, predominantly women, who are employed in an industry which offers easy income with no contractual obligations – the prostitution industry. Despite the prohibition of prostitution by the Sexual Offences Act 23 of 1957, the prostitution industry throughout South Africa continues to exist. These workers are also particularly vulnerable and easily exploited and abused by their employers. Illegal immigrants and sex workers in South Africa have until recently been denied access to the protection of our labour legislation, by virtue of the illegality of their employment contracts. However two recent controversial decisions, that of the Labour Court in the Discovery Health case, and that of the Labour Appeal Court in the Kylie case, have changed this position.
8
Wiesenecker, Philipp. "Arbeitsrecht der Länder im Nachkriegsdeutschland /." Baden-Baden : Nomos, 2005. http://bvbr.bib-bvb.de:8991/F?func=service&doc_library=BVB01&doc_number=013366045&line_number=0001&func_code=DB_RECORDS&service_type=MEDIA.
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Iannone, Enrico. "Die Kodifizierung des Arbeitsvertragsrechts - ein Jahrhundertprojekt ohne Erfolgsaussicht? : eine Untersuchung vorangegangener Bemühungen um ein Arbeitsvertragsgesetz und Analyse möglicher Erfolgsaussichten des Reformprojekts /." Frankfurt, M. ; New York, NY : Lang, 2009. http://d-nb.info/996363491/04.
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Frohlich, Ingmar. "Vertragsstrukturen in der Arbeitsverwaltung /." Baden-Baden : Nomos, 2007. http://bvbr.bib-bvb.de:8991/F?func=service&doc_library=BVB01&doc_number=015825491&line_number=0001&func_code=DB_RECORDS&service_type=MEDIA.
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Gillespie, Neil. "The legal protection of temporary employees." Thesis, Nelson Mandela Metropolitan University, 2013. http://hdl.handle.net/10948/d1019793.
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This paper is divided into two distinct sections. The first being an analysis of the legal protection of temporary employees as things currently stand. It deals with the various labour laws that currently regulate temporary employment as well as the temporary employment contract and the common-law. The second section summarises and analyses the provisions of the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill as they apply to fixed-term employees. Temporary employees are protected by the general protection extended to all employees in terms of section 23(1) of the Constitution of the Republic of South Africa, 1996, guaranteeing all employees the “right to fair labour practice”. The Labour Relations Act has as one of its main objectives to give effect to and regulate the fundamental rights contained in the Constitution. Thus the Labour Relations Act must not only give effect to constitutional rights but it must also ensure that it in no way unreasonably or unjustly denies or limits constitutional rights. Temporary employees have a number of labour laws protecting their interests. Where the provisions of the Basic Conditions of Employment Act, a Bargaining Council Agreement or a Sectoral Determination do not apply the employee will rely on the terms of the fixed-term employment contract and thereafter the common law for protection. The only protection offered to temporary employees contained in the Labour Relations Act is in section 186(1)(b), where a dismissal is defined to include the non-renewal of temporary contracts of employment where there is a reasonable expectation of renewal on the same or similar terms. This provision has proved to be highly controversial in that it does not expressly cater for temporary employees who harbour reasonable expectations of indefinite employment. An analysis is made of the most important cases relating to section 186(1)(b). The second section unpacks and critically analyses the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill which have been long in the offing and when they are finally enacted, will bring with them sweeping changes for atypical employment . The amendments will drastically change the way employers make use of fixed-term employees as well as the way in which Temporary Employment Services may conduct business if they are in fact able to keep working at all. There is very little literature of substance written about the Labour Relations Amendment Bill as it applies to atypical employment. The fact that the proposed amendments have changed so many times over such a long period of time might have deterred many writers from investing time and effort in attempts to analyse and summarise the amendments. Articles posted on the internet are in the main short and have very little content. No books were found with any discussion that pertains to the amendments. The amendments divide employees involved in atypical employment into two different categories. These categories consist of employees earning above the threshold in terms of section 6(3) of the Basic Conditions of Employment Act and those earning below this threshold. All fixed-term employees may rely on the provisions of section 186 of the Labour Relations Act. Employees earning below the threshold are considered to be the most vulnerable and have been afforded additional protections in terms of sections 198(A), (B) and (C). Issues surrounding Temporary Employment Services and fixed-term employees have been very divisive and have been the topics of heated debate at all levels of Industrial Relations for a long time. Discussions regarding the use of the services of Temporary Employment Services can be highly emotive, with Temporary Employment Services being accused of committing wideThis paper is divided into two distinct sections. The first being an analysis of the legal protection of temporary employees as things currently stand. It deals with the various labour laws that currently regulate temporary employment as well as the temporary employment contract and the common-law. The second section summarises and analyses the provisions of the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill as they apply to fixed-term employees. Temporary employees are protected by the general protection extended to all employees in terms of section 23(1) of the Constitution of the Republic of South Africa, 1996, guaranteeing all employees the “right to fair labour practice”. The Labour Relations Act has as one of its main objectives to give effect to and regulate the fundamental rights contained in the Constitution. Thus the Labour Relations Act must not only give effect to constitutional rights but it must also ensure that it in no way unreasonably or unjustly denies or limits constitutional rights. Temporary employees have a number of labour laws protecting their interests. Where the provisions of the Basic Conditions of Employment Act, a Bargaining Council Agreement or a Sectoral Determination do not apply the employee will rely on the terms of the fixed-term employment contract and thereafter the common law for protection. The only protection offered to temporary employees contained in the Labour Relations Act is in section 186(1)(b), where a dismissal is defined to include the non-renewal of temporary contracts of employment where there is a reasonable expectation of renewal on the same or similar terms. This provision has proved to be highly controversial in that it does not expressly cater for temporary employees who harbour reasonable expectations of indefinite employment. An analysis is made of the most important cases relating to section 186(1)(b). The second section unpacks and critically analyses the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill which have been long in the offing and when they are finally enacted, will bring with them sweeping changes for atypical employment . The amendments will drastically change the way employers make use of fixed-term employees as well as the way in which Temporary Employment Services may conduct business if they are in fact able to keep working at all. There is very little literature of substance written about the Labour Relations Amendment Bill as it applies to atypical employment. The fact that the proposed amendments have changed so many times over such a long period of time might have deterred many writers from investing time and effort in attempts to analyse and summarise the amendments. Articles posted on the internet are in the main short and have very little content. No books were found with any discussion that pertains to the amendments. The amendments divide employees involved in atypical employment into two different categories. These categories consist of employees earning above the threshold in terms of section 6(3) of the Basic Conditions of Employment Act and those earning below this threshold. All fixed-term employees may rely on the provisions of section 186 of the Labour Relations Act. Employees earning below the threshold are considered to be the most vulnerable and have been afforded additional protections in terms of sections 198(A), (B) and (C).
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Plöger, Henning. "Sonderarbeitsrechte im Pressebereich : Auswirkungen eines institutionellen Grundrechtsverständnisses auf das Arbeitskampf- und arbeitsrechtliche Statusrecht der Presse /." Frankfurt am Main ; Berlin ; Bern ; Bruxelles ; New York ; Oxford ; Wien : Lang, 2003. http://bvbr.bib-bvb.de:8991/F?func=service&doc_library=BVB01&doc_number=010317697&line_number=0002&func_code=DB_RECORDS&service_type=MEDIA.
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Nielandt, Dörte. "Das SGB III als Konfliktfeld von Sozial- und Wettbewerbsrecht : die Beihilfenrelevanz von SGB-III-Maßnahmen unter Berücksichtigung des Vergaberechts /." Berlin : BWV, Berliner Wiss.-Verl, 2006. http://bvbr.bib-bvb.de:8991/F?func=service&doc_library=BVB01&doc_number=014942635&line_number=0001&func_code=DB_RECORDS&service_type=MEDIA.
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Wagner, Christian-David. "Betriebliche Bündnisse für Arbeit - Retter der Tarifautonomie? /." Berlin : Duncker & Humblot, 2009. http://d-nb.info/993929877/04.
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Schmiege, Thorsten. "Betriebsverfassungsrechtliche Organisationsstrukturen durch Tarifvertrag /." Berlin : Duncker & Humblot, 2007. http://bvbr.bib-bvb.de:8991/F?func=service&doc_library=BVB01&doc_number=015626432&line_number=0001&func_code=DB_RECORDS&service_type=MEDIA.
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Chadd, Kevin Mark. "Insubordination in the workplace." Thesis, Rhodes University, 1999. http://hdl.handle.net/10962/d1003183.
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This thesis traces the development of insubordination in the employment relationship. The essence of the relationship is that the employee, by contracting out his or her productive capacity, occupies a subordinate position. The primary aim is to locate and define the nature of subordination and to investigate how the breach of this position would justify dismissal as interpreted and applied by the courts. This is achieved by investigating dismissal for insubordination under the common law contract of employment, the unfair labour practice jurisdiction and the 1995 Labour Relations Act. Initially the obligation of the employee to be subordinate, an essential term of the contract of employment, is located and defined by using the tests of Control, Organisation and Dominant Impression, which theoretically indicate the true nature of insubordination. Insubordination under the common law is equated with disobedience to the lawful and reasonable instructions of the employer which were given in good faith and fell squarely within the contractual relationship. Insubordination under the unfair labour practice jurisdiction was equated with a challenge to the authority of the employer of which disobedience was a manifestation of such intention. Instructions given by the employer under the unfair labour practice jurisdiction had to be lawful, reasonable and fair. What was fair depended on the surrounding circumstances of the dismissal and a wilful and unreasonable refusal of the employee to obey the valid instructions of the employer justified dismissal Under the 1995 Labour Relations Act it is submitted that insubordination will be dealt with in essentially the same manner as under the previous jurisdiction, subject to the Act's objectives and purposes. The disobedience of the employee is to be tolerated if that employee is attempting to achieve the Act's objectives, and any dismissal as a result of the disobedience could be unfair, because the employer's conduct fiustrates the purpose of the Act. Therefore, the contractual right of the employer to expect subordination from the employee may have been whittled away to such an extent over time that it seems superficial to regard subordination as an essential term of the contract of employment.
17
Peter, Doreen. "Nebentätigkeiten von Arbeitnehmern : Interessenkollisionen von Arbeitgebern und Arbeitnehmern /." Frankfurt am Main ; New York : P. Lang, 2006. http://bvbr.bib-bvb.de:8991/F?func=service&doc_library=BVB01&doc_number=014609665&line_number=0001&func_code=DB_RECORDS&service_type=MEDIA.
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18
Petersen, Desmond. "Changing terms and conditions of employment in the South African labour relations arena -- the approach of the courts: A comparative analysis." University of the Western Cape, 2004. http://etd.uwc.ac.za/index.php?module=etd&.
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This paper focused on how competing interests of employers and employees are accomodated in the South African Labour Relations arena. An analysis of the legislative framework was undertaken to establish how the legislation provides for changes in workplace practices as well as the protection that it affords employees against unwanted or unilateral changes. The main focus of the research was on how the South African Courts have interpreted the legislation and how it has applied the law in cases involving the changing of terms and conditions of employment, that has come before it.
19
Strydom, Masunet. "The status of employees employed by temporary employment services." Thesis, Nelson Mandela University, 2017. http://hdl.handle.net/10948/13680.
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The traditional employer-employee relationship came under an increased threat the past two decades with employers finding the option of utilising the services of Labour Brokers more attractive. Various reasons existed for this tendency amongst employers to opt for the use of Labour Brokers, some of these reasons being valid but mostly some reasons being born out of fear for the unknown labour law duties and obligations that were proposed to be placed on employers post 1994. In the absence of an action plan between the role players in the labour fraternity pathing the way traditional employer-employee relationships could be salvage, employers resorted to the appointment of Labour Brokers and Government on their part retaliated by considering either the total ban of Labour Brokers or the regulation of the profession to such an extent that same became largely unattractive and problematic. The non-addressing of problems and fears faced with by employers post 1994 resulted in an opportunity waisted to narrow the gap between employers and employees with the fight over work force power being the more important factor taken into consideration. This treatise will explore the options that faced the roll players post 1994 in the labour market, the reason for choices made and the effect same has had since on the labour market. The problematic amendments made to Section 198 of the Labour Relations Act in an attempt to iron out the wrinkles poor choices made by the stake holders over the regulations of Labour Brokers, will be discussed. The ripple effect the amendments to Section 198 of the Labour Relations Act had on other pieces of South African legislation will be considered and the uncertainty and confusion it has created discussed. Specific attention needs to be drawn to the intention of the legislature as to which party, the Labour Broker or employer, will be responsible for the ramifications of the wrong doings of an employee. Also, which party will be responsible to the employee to fulfil its labour rights as granted in the Constitution of South Africa. Unleashing reaction to the regulations of Temporary Employment Services does not seem to be a problem, the problem arises where the regulations proposed did not unleashed the desired reaction and roll players finding themselves frustrated and with having no alternative as to turn the Courts to solve the largely self-inflicted conundrum. The courts are left with the task of clarifying the legislature’s true intension in amending section 198 of the Labour Relations Act, which impact the writer with all due respect do not think the legislature even appreciated when the amendments were drafted. Currently, there is dividing views on the future of Labour Brokers per se in South Africa and the interpretation concerning Section 198 of the Labour Relations Act, as amended. The focus of this treatise is to highlight the different interpretations given to these amendments this far and highlight that if it is in fact the wish of stake holders in the Labour fraternity that Labour Brokers should continue to exist, clarification is needed by our Constitution Court on certain vital issues and as discussed in this treatise.
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Cherdron, Julianne. "Tarifliche Sanierungs- und Sozialplanvereinbarungen /." Berlin : Duncker & Humblot, 2008. http://bvbr.bib-bvb.de:8991/F?func=service&doc_library=BVB01&doc_number=016684341&line_number=0001&func_code=DB_RECORDS&service_type=MEDIA.
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Myeki, Mfundo. "Dismissal law in the education sector." Thesis, Nelson Mandela Metropolitan University, 2011. http://hdl.handle.net/10948/1567.
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This treatise will therefore critically discuss fairness requirements in dismissal law within the context of the education sector from: i) the perspective of a dismissed employee; and ii) the perspective of an employer who wishes to dismiss employees fairly; and iii) the perspective of a deemed dismissal. It will be proper to flow this discussion from the premises of what should be considered procedural and substantive fairness in dismissals.
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Govender, Mogisvaree Murugan. "Determining reasonableness in the light of Sidumo." Thesis, Nelson Mandela Metropolitan University, 2016. http://hdl.handle.net/10948/11648.
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The primary purpose of this treatise is to consider the development, analysis and application of the review test in relation to arbitration awards which is set out in the Constitutional Court (CC) judgment of Sidumo & Another v Rustenburg Platinum Mines Ltd & Others (Sidumo).1 This judgment has already had significant implications for employers and employees alike and will continue to do so in the future. Many lawyers, trade unions and employees launch or oppose review applications in the Labour Court on behalf of employers or employees. In observing this litigation process, it became clear that practitioners make two fundamental mistakes. Firstly they do not appreciate the distinction between reviews and appeals and / or, secondly, they misconstrue the Sidumo test in seeking to review or defend an arbitration award. This causes serious prejudice to their clients and results in delays in labour dispute resolution which is contrary to the spirit and purpose of the Labour Relations Act,2 as amended (LRA). The application of the Constitution of the Republic of South Africa,3 legislation and case law is fundamental to the review of arbitration awards and the role of arbitrators in that process. The common thread is the notion of “reasonableness” and “fairness” which has been and continues to be of significant importance in the assessment of arbitration awards. During the course of this research paper, reference is been made to the Constitution, legislation, case law, academic papers and journal articles. The references are mostly precedent setting and authoritative in relation to reviewable irregularities in arbitration awards. The purpose of this paper is guide and assist labour court practitioners to analyse arbitration awards and identify reviewable irregularities in order to determine whether it meets the bandwidth of reasonableness within the context of the Constitution and LRA. In doing so, practitioners will be able to successfully review awards without unduly delaying the dispute resolution process. During the research process, one of the important findings was that there has been inconsistent jurisprudence relating to the application of the grounds of review and the review test itself as per Sidumo which blurred the distinction between reviews and appeals. Many review applications failed to attack the reasonableness of the decision of the commissioner, but rather focused on the cogency of the evidence presented at the arbitration and thereby incorrectly invoking an appeal instead of a review. A further challenge was that the jurisprudence created a perception amongst practitioners that there was a decline in the Sidumo test. This approach was inherently incorrect and recent judgments have clarified and upheld the Sidumo test in review applications.4 The recent landmark judgments by the Supreme Court of Appeal (SCA) clarified that reasonableness was not a separate ground of review but was to be suffused with the grounds of review set out in section 145(2)(a) of the LRA.5 Lastly, Sidumo did not postulate the bandwidth of reasonableness and it was left to the courts to determine the extent of judicial interference. There are various factors to be considered and CC judgments have provided much needed guidance on how to determine reasonableness. In essence, a wrong decision per se is not reviewable. At best, erroneous reasons or lack of proper reasons may serve as evidence for a reviewable ground that will together with other considerations require compelling proof to justify a court’s interpretation that the decision reached is not one that a reasonable decision could have reached.7 In order to obtain an award on the basis of the Sidumo test, the 4 Andre Herholdt v Nedbank [2013] 11 BLLR 1075 (SCA); Goldfields Mining South Africa (Pty) Ltd v CCMA [2014] BLLR 20 (LAC). applicant must thus assail not only the commissioner’s reasons, but also the result of the award.
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Ah, Shene Lee-Anne Dorothy. "Large scale retrenchments: an overview of Section 189 A." Thesis, Nelson Mandela Metropolitan University, 2012. http://hdl.handle.net/10948/d1012042.
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This treatise sets out and evaluates recent developments in the area of large-scale retrenchments in South Africa. Dismissals are considered to be a source of great controversy, but more so large scale retrenchments. It was with this in mind that the various role players sought an amendment in 2002 so as to address the concerns by both employers and employees. The applicable legislation, namely section 189A of the Labour Relations Act 66 of 1995, was enacted to ensure the smooth operation of this genre of retrenchments. In this treatise, section 189A will be evaluated. Section 189A stipulates what procedure should be utilized, for dismissals necessitated by operational requirements. The inclusion of this provision was an attempt to address the concerns of both employers and employees. Chapter 1 provides us with an overview with regard to why change with regard to retrenchment legislation was necessary. In Chapter 2 the definition of operational requirements will be unpacked as well as what definition the courts have attached to the term "operational requirements‟, and more importantly the issue relating to substantive fairness. Chapter 3 examines when the applicable provision is triggered, whether or not an employer can stagger retrenchments, the facilitation process, and the regulations pertaining to facilitations. The facilitation process itself and the consultation aspect of the facilitation process are recounted. The meaning of „consultation‟ is evaluated, and it should be noted that section 189 and section 189A are interrelated when topics of consultation are considered. Chapter 4 addresses the instance when no facilitator is appointed and the mechanisms of section 189A(7) and (8); further discussions relating to subsection 13, and 19 will furthermore be evaluated with reference to case law. Chapter 5 sets out the various viewpoints on whether or not section 189A has been successful, and the chapter questions the effectiveness of the provision to provide a realistic view of large-scale retrenchments and whether the enactment thereof was an effective mechanism protecting the rights of employees faced with possible unemployment. The implementation of the training lay off system will be looked at and the statistics of the CCMA will be used as a measure to determine the effectiveness of section 189A. Chapter 6 concludes the thesis, by highlighting lessons learnt from case law for both employees and employers.
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Brenner, Sven. "Die strafrechtliche Bekämpfung der Schwarzarbeit unter besonderer Berücksichtigung wirtschaftlicher Aspekte /." Berlin : BWV Berliner Wissenschafts-Verlag, 2008. http://deposit.d-nb.de/cgi-bin/dokserv?id=3072593&prov=M&dok_var=1&dok_ext=htm.
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Strydom, Wynand Wilhelmus. "The requirement of "bumping" in operational-requirement dismissals." Thesis, Nelson Mandela Metropolitan University, 2015. http://hdl.handle.net/10948/5896.
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This treatise interrogates the concept of bumping and commences with the background and rationale to the study. It poses a problem statement and sets out the aims and objectives it intends to achieve by virtue of specific research questions identified in the first chapter. The second chapter deals with the history and origin of the concept of bumping whereafter it elaborates on the evolution of bumping in the South African labour-law context and it furthermore introduces the retrenchment guidelines as drafted by Halton Cheadle in 1985. A review and reappraisal of the retrenchment guidelines by Andre van Niekerk are also raised in the second chapter. This is followed by a discussion on the aspects relating to fair selection criteria as pronounced by South African labour-law jurisprudence and deals specifically with the concept of LIFO and the employment universe. The third chapter also raises the various forms of bumping, as well as applicable limitations thereto. Following an in-depth look at the South African courts’ interpretation of bumping-related scenarios, a comparison with international standards is launched whereby relevant ILO recommendations are used as reference. An interpretation of United Kingdom case law is discussed, whereafter it is compared with the South African approach. The fifth chapter deals with the legislative requirements for fair dismissals and fair retrenchment dismissals in particular. The nexus between substantive and procedural fairness requirements is highlighted and the remainder of the fifth chapter deals with procedural fairness requirements which would be applicable in bumping-related retrenchment scenarios. The final chapter briefly alludes to whether bumping should be categorised as a genuine alternative to retrenchment, or merely as an extension of LIFO as a selection criterion. The treatise concludes with procedural recommendations in dealing with bumped employees in the form of retrenchment guidelines for consultations with employees affected by bumping.
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Cokile, Siyabonga. "The remedies for unfair dismissal." Thesis, Nelson Mandela Metropolitan University, 2009. http://hdl.handle.net/10948/1033.
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In terms of section 193 of the Labour Relations Act 66 of 1995, there are basically three remedies for unfair dismissal and unfair labour practice, namely reinstatement, re-employment and compensation. In disputes of unfair labour practice an arbitrator may determine a dispute on terms that the arbitrator deems reasonable, including the abovementioned three remedies. For example, in an unfair labour practice dispute relating to promotion or appointment, an arbitrator may order that the process of appointment be started afresh, if is found that the process was flawed. The right to fair labour practice is a right that is enjoyed by everyone and it is a right upon which every employee enjoys not to be unfairly dismissed is entrenched in section 23 of the Bill of Rights. The rights of every employee contained in the Labour Relations Act give content and effect to the right to fair labour practice contained in section 23 of the Bill of Rights. Every trade union, employer’s organisation and employer has a right to engage in collective bargaining, which includes but not limited to the formulation of disciplinary policies in the workplace, which should be observed by every employee. Our constitution mandates the Legislature to enact legislation that regulates collective bargaining. One of the purpose of our Labour Relations Act is to promote collective bargaining and the effective resolution of labour disputes. The remedies for unfair dismissal and unfair labour practice therefore give content and effect to the purpose of the Act, which is to promote effective resolution of labour disputes. The Legislature has given a legislative and policy framework, in terms of which the labour disputes may be resolved. In order to restrict the powers of the arbitrators and courts, section 193 of the Act provides that in ordering the reinstatement and re-employment of dismissed employee, they must exercise a discretion to order reinstatement re-employment, not earlier than the date of dismissal. The remedy of compensation is an alternative remedy, which must be ordered if the circumstances set out in section 193(2)(a) to (d) are applicable. Some arbitrators have made a mistake of treating this remedy as part of the primary remedies. However, our courts have clarified the intention of the Legislature in crafting the remedies for unfair dismissal.
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Van, Loggerenberg Johannes Jurgens. "Constructive dismissal in labour law." Thesis, University of Port Elizabeth, 2003. http://hdl.handle.net/10948/301.
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The history of constructive dismissals in South Africa imitated from the English law in 1986, when an employee successfully challenged the employer on this particular concept after an incident relating a forced resignation. From the literature it is clear that constructive dismissal, as we know it today, originated from our English counterparts. Being a relatively new concept, the South African labour laws caught on at a rapid pace. The leading case on which the South African authors leaned towards was the English case of Woods v WM Car Services (Peterborough). In South Africa constructive dismissals were given statutory force in unfair dismissal law and is defined as the coerced or forced termination of a contract of employment resultant in from the conduct of the employer. There are many forms in which constructive dismissals would postulate that could justify an employee to lay claim to constructive dismissal. Examples thereof are the amendment of the contract of employment, rude language and sexual harassment. It is eminent that certain elements should be present before an employee would have reasonable prospects of succeeding with such a claim. Constructive dismissal comes into the equation when an employer behaves in such a manner that eventually and ultimately leads to the employee, being the receiving party, in the employment relationship, to terminate the employment contract. This termination must be the direct result of the conduct of the employer that irreparably frustrated the relationship and made it impossible for the employee to remain in the service of the employer in question. It appears that the courts have taken a firm stance on coerced or forced resignation, in its various forms tantamount to breach of contact, that any sufficiently unreasonable conduct by an employer may justify that the employee to terminate services and lay claim to the fact that he had been constructively dismissed. It needs to be mentioned that the fact that the mere fact that the employer acted in an unreasonable manner would not suffice and it is up to the employee to prove how the conduct of the employer justified the employee to leave and claim that the employer’s conduct resulted in a material or fundamental beach of the employment contract. In dealing with the contingency of the concept of constructive dismissals it has been expressly provided for in numerous systems of labour law. As is seen herein, a constructive dismissal consists in the termination of the employment contract by reason of the employee’s rather than the employer’s own immediate act. The act of the employee is precipitated by earlier conduct on the part of the employer, which conduct may or may not be justified. Various authors and academics endeavoured to defined constructive dismissal and all had the same or at least some of the elements present, to justify constructive dismissal. The most glaring element being the termination of employment as a result of the any conduct that is tantamount to a breach going to the root of the relationship by the employer, that frustrated the relationship between the employer and the employee and rendered it irreparable. The employee resigns or repudiates the employment contract as a result of the employer normally not leaving the employee any other option but to resign. This can also be termed as coerced or forced resignations and are commonly better known as “constructive dismissal”. The employee is deemed to have been dismissed, even though it is the employee who terminated the employment contract. The most important element to mention is the employee terminated the employment contract, ie resigned yet this is regarded as a dismissal, it is however for the employee to first lay a claim at the proper authority and the employee must prove his / her allegation before it can be a constructive dismissal. As will become clear, that the onus of proof is on the employee to show that the termination of employment resulted from the conduct of the employer. Equally true as in all cases of constructive dismissal, including cases of sexual harassment, being a ground for constructive dismissal, the employee must prove that to remain in service would have been unbearable and intolerable. Sexual harassment is one of the most difficult forms of constructive dismissals, in many cases there are no witnesses and the employee either “suffers in silence or opt to place her dignity at stake to prove her case. It seems as though the test is to determine if the employer’s conduct evinced a deliberate and oppressive intention to have the employment terminated and left the employee with only one option that of resignation to protect her interests. Employees have a right to seek statutory relief and needs to be protected. If a coerced or forced resignation had taken place irrespective whether the employee resigned or not. It is against this back drop that constructive dismissals was given legality and are now recognized as one of the four forms of dismissals in terms of the Act.
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Clouet, Johanne. "La domesticité juvénile en Haïti : une vision à travers la lentille du pluralisme juridique." Thesis, McGill University, 2008. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=115989.
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In this thesis, we present the outcomes of a research conducted on children's domestic labor in Haiti. In addition to being engaged in housekeeping work -- which has a negative impact on access to basic education -- children in domesticity are generally victims of harmful disciplinary measures as well. Consequently, our main objective is to expose the actual norms and practices regarding the education and the physical treatment of young domestic workers.Based on legal pluralism, the approach undertaken during this research combines both theoretical and empirical research, and focuses on law and norms existing at multiple levels.
First, we present the information gathered from our theoretical approach. After exploring the notion of "Haitian child domestic servant", sketching social profiles of actors engaged in the practice of domesticity, and identifying the most significant contingent factors, we underline the principal national and international norms guaranteeing children the right to education as well as to physical integrity.
Second, we explore the local norms related to the education and to physical treatment of young domestic servants through the results of empirical research carried out in Haiti in the form of observation and interviews with relevant actors.
We conclude by identifying the framework of norms that govern the behaviour of families that host domestic children. Understanding that framework allows jurists and other actors to identify and implement the actions more likely to improve the quality of life of child domestic workers.
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Mnguni, Sihle. "The application of section 17 of the Employment of Educators' Act." Thesis, Nelson Mandela Metropolitan University, 2016. http://hdl.handle.net/10948/11865.
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The purpose of this treatise is to discuss the implementation of section 17 of The Employment of Educators’ Act1 with a view to examining its shortcomings in fulfilling the requirements of fairness. Section 17 makes dismissal for transgressing any of the misconduct cases listed therein compulsory. This is so because of the use of the term “must” in its opening sentence. The Constitutional Court in Sidumo v Rustenburg Platinum Mines2 emphasizes the consideration of the totality of circumstances before the dismissal sanction is imposed by an employer. These include but not limited to the importance of the rule that has been breached to the employer; the basis of the employee’s challenge to the dismissal; the harm caused by the employee’s conduct; the effect of dismissal on the employee and the length of service. The treatise argues that in its current form section 17 of The Employment of Educators’ Act does not cater for the consideration of these circumstances set by the Constitutional Court. The study will also discuss the applicable dismissal legislation in education. The Constitution of the Republic of South Africa guarantees everyone a right to fair labour practices.3 This right is further qualified by the Labour Relations Act4 in section 185. The Labour Relations Act also has in it Schedule 8 which is a Code of Good Practice: Dismissal. The Code endorses the concept of corrective or progressive discipline5 and the need to give due consideration to certain circumstances before dismissing an employee.6 The consideration of the circumstances listed by the Constitutional Court in Sidumo v Rustenburg Platinum Mines7 and the provisions of items 3(2) and 3(6) cannot be said to be well catered for under section 17 of the Employment of Educators’ Act because of the use of the term “must”. For the principle of fair labour practices to be fully accommodated under section 17 of the Employment of Educators’ Act a need to amend it is necessary. This treatise will introduce amendments that will provide for pre-dismissal arbitration as a possible approach to ensuring full compliance for fairness in dismissals that are as a result of transgressing any of the misconduct cases listed in section 17. Other amendments suggested are aimed at realigning section 17 to other child specific legislation like the Children’s Amendment Act8 and the Sexual Offences and Related Matters Amendment Act.
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Delport, Gerhardus Jordaan. "The constitutionality of Section 14 of the Employment of Educators Act." Thesis, Nelson Mandela Metropolitan University, 2017. http://hdl.handle.net/10948/15479.
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The Department of Education, as part of the public sector, employs educators in terms of the Employment of Educators Act (EEA),1 whereas the rest of the public servants are employed in terms of the Public Service Act (PSA). If an educator is absent for more than 14 consecutive days without the permission of the employer, the educator is deemed to be discharged according to section 14(1)(a). With regard to the rest of the public sector, a similar provision is put in place, where section 17(5)(a) provides for the discharge of a public officer who is absent from his / her duties without the permission of the Head of Department for a calendar month (31 days). Sometimes long absent periods are caused by personal circumstances of the employee which are unforeseen. If the employee reports for duty after the dismissal, section 14(2) of the EEA provides that, the employee may be reinstated by the employer on good cause shown, after a post-dismissal hearing. If an employee in the public sector is discharged based on these deeming provisions, the employment is terminated by the operation of the law and there is no dismissal. This means that the employer is not responsible for the termination, meaning than there exists no option to review the dismissal. The supreme law of the Republic of South Africa (RSA) is the Constitution of the Republic of South Africa (the Constitution).5 The question at hand is whether the deeming provision of section 14 of the EEA6 is constitutional. The Labour Relations Act (LRA) goes further by stipulating that every person has the right not to be unfairly dismissed, and not to be subjected to unfair labour practice.7 Section 23 of the Constitution provides that everyone has the right to fair labour practices. Furthermore, section 33 of the Constitution provides for fair administrative action. The question is whether these provisions, dealing with the dismissal of educators, limit the employee’s constitutional right to a fair labour practice.
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Reinecke, Femke. "Leistungsbestimmung des Arbeitnehmers /." Frankfurt am Main ; New York : P. Lang, 2006. http://bvbr.bib-bvb.de:8991/F?func=service&doc_library=BVB01&doc_number=015611371&line_number=0001&func_code=DB_RECORDS&service_type=MEDIA.
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Boy, Anthony Albert. "Dismissal for medical incapacity." Thesis, Nelson Mandela Metropolitan University, 2004. http://hdl.handle.net/10948/d1016262.
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Labour law in South Africa has evolved over the past century at an ever increasing pace. The establishment of a democratic government in 1995 has been the trigger for a large number of labour law statutes being promulgated, particularly with reference to the laws governing the employment relationship and dismissal. From very humble and employer biased dispute resolution application under the common law of contract, labour law in this country has evolved through the various acts culminating in a labour law system which is highly regulated and codified. Dismissal for medical incapacity in this treatise is reviewed with regard to the applicable statutes and the various codes of good practice as the law has evolved and developed from the period covered by the common law through that covered by the 1995 LRA up to and including the current period. Particular attention is paid to both substantive and procedural requirements as well as the remedies applicable under the different legal regimes and the pertinent tribunals and courts. Regard is also given to the duration and causes of incapacity and the effect this may have on the applicable remedy applied by these tribunals. It will become apparant that the medically incapacitated employee occupied a relatively weak and vulnerable position under the common law as opposed to the current position under the 1995 LRA. The influence of the remedies applied by the tribunals under the 1956 LRA are clearly evident in the current regulations and codes under the 1995 LRA which contain specific statutory provisions for employees not to be unfairly dismissed. Distinctions are drawn between permissible and impermissible dismissals, with medical incapacity falling under the former. Furthermore, a distinction is drawn statutorily between permanent and temporary illhealth/injury incapacity with detailed guidelines for substantive and procedural fairness requirements to be met by employers. The powers of the specialist tribunals (CCMA, Bargaining Councils and Labour Courts) are regulated by statutory provisions and deal with appropriate remedies (reinstatement and/or compensation) a wardable in appropriate circumstances. Certain specific areas nonetheless still remain problematic for these tribunals and hence questions that require clear direction from the drafters of our law are: How to distinguish misconduct in alcohol and drug abuse cases? What degree of intermittent absenteeism is required before dismissal would be warranted? In certain other areas the tribunals have been fairly consistent and prescriptive in their approach and remedies awarded. Included here would be permanent incapacity, HIV cases and misconduct. It will emerge, however, that under the 1995 LRA the position of employees and the protections afforded them have been greatly increased.
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Maul-Sartori, Mathias. "Europäische arbeitsverhältnisbezogene Informationsrechte : Die Richtlinie 91/533/EWG und ihre Umsetzung in Deutschland (Nachweisgesetz), Frankreich und Großbritannien /." Baden-Baden : Nomos, 2008. http://bvbr.bib-bvb.de:8991/F?func=service&doc_library=BVB01&doc_number=016463641&line_number=0001&func_code=DB_RECORDS&service_type=MEDIA.
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James, Ncumisa Portia. "The relationship between an automatically unfair dismissal in terms of section 187(1)(c) of the labour relations act and a dismissal for operational reasons." Thesis, Nelson Mandela Metropolitan University, 2009. http://hdl.handle.net/10948/1034.
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Common law does recognise the concept of dismissal based on operational requirements. It recognises dismissals that are based on breach of expressed or implied terms of contract of employment. The concept of operational requirements has its roots in the Labour Relations Act 28 of 1956. This Act recognised termination of employment of a number of employees due to ability, capacity, productivity, conduct and operational requirements and needs of undertaking industry trade or occupation of the employer as legitimate. Under the 1956 LRA, employers were allowed to dismiss employees if employees refused to accept the proposed change to conditions of employment. The dismissal is called lock-out dismissal. This kind of dismissal entitled employers to dismiss employees on condition that the dismissal was temporary and the workers would be re-employed when they agree to the demands of the employer. After the contract of employment was terminated between the employer and employees, the employer was allowed to implement the changes using scab labour. The 1995 Labour Relations Act introduced section 187(1)(c) that was intended to re-enforce the abolishing of the lock-out dismissal. This section strictly forbids the dismissal of employees in order to compel them to accept demands of the employer in matters of mutual interest. Such dismissals are regarded as automatically unfair. In terms of section 64(4) of the 1995 LRA employers are not permitted to unilaterally effect changes to employees’ terms and conditions of employment. They are required to seek and obtain consent of the affected employees. If employees refuse to accept the proposed changes, the employer can use lock-out as defence. Firstly, the employer can initiate lock-out until employees accede to its demand. Secondly, the employer can lock-out employees in response to the notice of strike or strike of the employees. The employer can use scab labour during this lock-out period. Unlike the lock-out dismissal, lock-out under the 1995 LRA does not include termination of contract of employment. iv In contrast, employers are allowed to dismiss employees who refuse to agree to change to their terms and conditions of employment on the ground of operational requirements provided a fair procedure is followed. This reason for dismissal is not viewed by the courts as a dismissal to induce employees to accept the demand of the employer. The question that this study seeks to examine is the relationship between automatic unfair dismissal in terms of section 187(1)(c) of the Labour Relations Act and dismissal for operational requirements. A dispute between the employer and employees regarding change to terms and conditions of employment is a mutual interest dispute; and it therefore falls under collective bargaining. The same dispute can easily fall to rights dispute, because the reason for the proposed change to the production system and demand to the pursuit of improved efficiency and better achievement of profit objective related to operational requirement. There is obvious overlap between operational requirements and wage work bargaining. In Schoeman v Samsung Electronics, the court held that the employer is entitled to run its business in a prosperous way and this may entail affecting changes to terms and conditions of employment when the market forces demand so. In Mwasa v Independent Newspapers, the court held that change to terms and conditions of service of an employee can be proposed as a way to avoid retrenchment; dismissal of employees for refusing to accept the change is not covered by section 187(1)(c). In Fry’s Metals v Numsa, the court has rejected the notion that there is tension between section 187(1)(c) and section 188(1)(a)(ii). The court held that section 186(1) refers to dismissal or termination of workforce with the intention to end the employment contract and replacing the workforce with employees that are prepared to accept terms and conditions of employment that suit the employer’s operational requirements. The court argued further that the meaning of dismissal should be a v starting point when one wants to dispute the two sections. On the other hand, section 187(1)(c) was effected with a certain purpose, which is to prohibit the employer from dismissing employees in order to compel them to accept its demand in dispute of mutual interest. The court held that the dismissal in this case was final. The employer dismissed its employees because it did not need them anymore. This dismissal is in accordance with section 186(1). The court rejected that operational requirements is confirmed to saving business from bankruptcy. The court argued that the principle includes measures calculated to increase efficiency and profitability. The employer can dismiss and make more profit.
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Rafapa, Malose Given. "Establishing good cause subsequent to a deemed dismissal." Thesis, Nelson Mandela Metropolitan University, 2017. http://hdl.handle.net/10948/11425.
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The establishing of good cause subsequent to a deemed dismissal, as practiced currently only in the public sector, has been a controversial issue for the courts, labour law commentators and academics alike. It has been so because of a number of legislative deficiencies which caused the inconsistent application of the deeming provisions across the public service. Amongst others, the legislative deficiencies regarding establishing good cause are; the time-limit for establishing good cause, what happens when the employee returns, whether establishing of good cause should be entertained through written response or a hearing, the Termination of Employment Convention, 1982(No. 158) is silent on the deeming provisions, review of the employer’s discretion not to reinstate the absconding employee and the legal position regarding the traditional healer’s certificate. There will be an intensive investigation on the validity of the traditional healer’s certificate. Majority of South Africans rely on the THP for a number of illnesses. In some cases, they use the traditional healer’s certificate to establish good cause subsequent to a deemed dismissal. The traditional healer’s certificate is not yet valid given the pending legislative processes. This issue will be broadly explored in order to uncover the causes for the delay in finalising this crucial issue. Most of the absconding employees have a problem of alcoholism. There is a causal relationship between deemed dismissal and alcoholism. It is again the intention of this study to fully investigate this phenomenon and provide solutions for the employers faced with this challenge. Practical solutions will be proposed for each identified legislative deficiency and any related challenge to help employers to manage the deeming provisions in a very effective and efficient manner.
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Van, der Walt Johann. "The impact of the Administrative Adjudication of Road Traffic Offences Act on the employment relationship." Thesis, Nelson Mandela Metropolitan University, 2009. http://hdl.handle.net/10948/1038.
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The focus of this dissertation is the impact that the Administrative Adjudication of Road Traffic Offences Act 45 of 1998 (AARTO) will have on the employment relationship between employers and employees. AARTO was promulgated in order to, amongst other things; assist with the streamlining of the traffic offence administration and the collection of payable fines for traffic infringements. Very little has been written with regard to the implications of AARTO on the employment relationship. The purpose of this dissertation is to unpack the mechanics of AARTO, and further to provide the writer’s view on its impact, problems and possible solutions, of the employment relationship within the South African Labour law framework. The writer will attempt to reconcile the Labour Relations Act and AARTO insofar as it impacts on the employment relationship, more especially the termination thereof. Writer will set out the provisions of AARTO and the sections pertaining to the allocation of demerit points on an individual driver’s licence. Unfortunately for the sake of completeness the writer will deal with the majority of sections in AARTO to provide a better understanding of the mechanisms envisaged by the Act to bring about the demerit points. It is writer’s view that dealing with the allocation of demerit points in vacuum will not provide the reader with a clear understanding of the impact of AARTO on labour relations. With regards to the actual implications that AARTO will have on the employment relationship writer has taken it upon himself to provide a categorization of employees in the broad sense and thereafter to discuss the impact of AARTO on the different categories of employees. More over the writer will examine the different categories of dismissal specifically misconduct, incapacity and operational requirements as well as the impact and applicability of AARTO thereon. vi The writer will also attempt to deal with peripheral issues that arise as a spinoff or AARTO insofar as employment relationships are concerned.
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Lapere, Jan Noel Romain. "Occupational medical examinations and labour law." Thesis, University of Port Elizabeth, 2003. http://hdl.handle.net/10948/302.
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South Africa’s Constitution and the Employment Equity Act have a major impact on the performance of medical examinations within the employment relationship. Health and safety statutes list a number of occupational medical examinations, which an employer must perform. Other legislation permits the execution of medical examinations. After listing the different statutory references to occupational medical examinations, this treatise examines under which conditions medical testing is required or permissible. The fairness of employment discrimination based on medical facts, employment conditions, social policy, distribution of employee benefits and inherent job requirement is analysed through a study of the legal texts, experts’ opinions and case studies. The particularities of the ethical and legal duties of the medical professional, performing the occupational medical examination, are also examined. Finally, a comprehensive analysis of the different forms of occupational medical examinations is compiled by combining legal and policy-related job requirements and is attached as an annexure. This is the practical result of the research in this treatise combined with the personal experience of the author.
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Nel, Werner. "Procedural fairness in unprotected strike dismissals." Thesis, University of Port Elizabeth, 2003. http://hdl.handle.net/10948/314.
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The Labour Relations Act contains a definition of a strike which reads as follows: “’strike’ means the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to ‘work’ in this definition includes overtime work, whether it is voluntary or compulsory.” The Labour Relations Act offers strikers special protection against dismissal if they conform with the Act and its provisions. Hence the distinction between those strikes and protest action in compliance with the Act, namely ‘protected’ strikes and protest action, and those strikes and protest action in violation of the Act, namely, ‘unprotected’ strikes and protest action. Participation in an unprotected strike is one form of misbehaviour. The Labour Relations Act expressly prohibits the dismissal of employees engaged in a lawful strike. Employees engaged in strike action contrary to the provisions of the Labour Relations Act may be dismissed since their strike action is deemed to be a form of misconduct. The dismissal of striking employees must be both substantially and procedurally fair.
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Fischat, Herbert Robert James Falconer. "The criterion of justifiability as a ground for review following Sidumo v Rustenburg Platinum Mines (2007) 12 BLLR 1097 (CC)." Thesis, Nelson Mandela Metropolitan University, 2013. http://hdl.handle.net/10948/d1019792.
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This treatise will focus on the review of labour arbitration awards provided for under the oversight of the Commission for Conciliation, Mediation and Arbitration (CCMA), bargaining councils, statutory councils, accredited private agencies and approved private arbitration tribunals. The general grounds of review applicable to the arbitration awards of the different bodies are set out. Thereafter the case of Carephone (Pty) Limited v Marcus NO & others (1998) 19 ILJ 1452 (LAC) is analysed and the core principles pertaining to the justifiability test are clarified for the first time in the forum of the Labour Appeal Court. The judicial rationale for the relevance and applicability of the test to CCMA arbitration proceedings and criticisms of the test are examined. The justifiability tests are only applicable to review proceedings in CCMA matters and not available to private arbitration review matters. There are however three approaches which are being suggested for the application of the justifiability tests to private arbitration review. Firstly, it is suggested that the Arbitration Act could be interpreted to include the justifiability test under the statutory review grounds. Secondly, the arbitration agreements could be interpreted to include an implied term that the arbitrator is under a duty to give justifiable awards. Finally, it can be submitted that the law should be developed by reading into all arbitration agreements the ability to arbitrators to give justifiable awards. Since the judgment of Sidumo v Rustenburg Platinum Mines [2007] 12 BLLR 1097 (CC) various critical questions arose in relation to the interpretation and application for the purpose of dealing with subsequent review applications. Firstly, this research paper will seek to establish whether the courts in subsequent matters to the Sidumo judgment have interpreted reasonableness as a test or ground for review. Secondly the research paper will scrutinise case law whether the reviewing court is entitled to rely on and consider reasons other than those provided for by the commissioner in his award to determine inter alia, the reasonableness of his decision arrived at. The Constitutional Court in the Sidumo case rejected the so-called employer’s test, stating that ultimately the commissioner’s sense of fairness is what must prevail and not the employer’s view. Consequently an impartial determination whether or not a dismissal was fair is likely to promote labour peace amongst the labour force. The test arrived at by the Constitutional Court in the Sidumo case for determining whether a decision or arbitration award of a CCMA commissioner is reasonable, is a stringent test that will ensure that such awards are not easily interfered with. The question to be asked in determining whether there has been compliance with the standard is whether the decision of the commissioner is one which a reasonable decision maker could have reached. This approach will underpin the primary objectives of the Labour Relations Act which is the effective resolution of disputes. This finding will be apparent from important cases decided and discussed after the Sidumo landmark ruling.
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Jones, Jonathan. "The interpretation and effect of section 197 of the Labour Relations Act 66 of 1995." Thesis, Stellenbosch : Stellenbosch University, 2001. http://hdl.handle.net/10019.1/52544.
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Thesis (LLM)--University of Stellenbosch, 2001.ENGLISH ABSTRACT: Section 197 of the Labour Relations Act 66 of 1995 ensures the transfer of a contract of employment from an old employer to a new employer on the transfer of a business as a gomg concern. Although section 197 is mostly based on European and British statutes and regulations, one should not rely on foreign provisions when interpreting section 197 without careful consideration. It is only when we understand the inherent limitations of applying these provisions, that they can be of any help to formulate definitions for the terms "transfer", "business" and "going concern". The two most important effects that section 197 has, is that it ensures the transfer of the contract of employment and that it protects the terms and conditions of employment when such a transfer takes place. Unfortunately, this section does not regulate dismissal on the transfer of a business. Section 197 also does not deal satisfactorily with the transfer of contracts of employment on the transfer of an insolvent business. As a result of the above-mentioned and other shortcomings of the current section 197, it was decided to amend the Act. The Labour Relations Amendment Bill 2000 relies heavily on precedents from foreign law, but unfortunately it does not adequately address all the current problems.
AFRIKAANSE OPSOMMING: Artikel 197 van die Wet op Arbeidsverhoudinge 66 van 1995 verseker die oordrag van 'n dienskontrak van 'n ou werkgewer na 'n nuwe werkgewer by die oordrag van 'n besigheid as 'n lopende onderneming. Alhoewel artikel 197 gebaseer is op Europese en Britse wetgewing en regulasies, moet die leser versigtig wees om sulke bepalings sonder skroom aan te wend by die interpretrasie van artikel 197. Wanneer ons die inherente beperkings daarvan begryp, mag die bepalings van hulp wees om definisies te vorm van die begrippe "oordrag", "besigheid" en "lopende onderneming". Artikel 197 het hoofsaaklik twee uitwerkings: dit fasiliteer die oordrag van die dienskontrak en verseker dat die terme en voorwaardes van indiensneming onveranderd bly. Die artikel reguleer nie ontslag by die oordrag van 'n besigheid nie. Artikel 197 reguleer ook nie genoegsaam die oordrag van dienskontrakte waar 'n insolvente besigheid oorgedra word nie. As gevolg van bogenoemde en ander tekortkominge is besluit om die Wet te wysig. Die Wysigingswetsontwerp op Arbeidverhoudinge 2000 steun op buitelandse presedente, maar spreek ongelukkig ook nie al die huidige probleme suksesvol aan nie.
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Barnardt, Gerard Louis. "Electronic communication in the workplace : employer vs employee legal rights." Thesis, Stellenbosch : Stellenbosch University, 2004. http://hdl.handle.net/10019.1/49942.
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Thesis (LLM)--University of Stellenbosch, 2004.ENGLISH ABSTRACT: The monitoring of electronic communication is likely to face all employers sooner or later. The rapid advancement in technology aimed at helping to monitor electronic communication, makes it easier than ever before for employers to monitor the electronic communications of their employees. There are important questions to consider when dealing with the topic of monitoring electronic communication. Examples include "mayan employer legally monitor electronic communications?" and "how does monitoring affect the employee's right to privacy?" This thesis is an attempt to answer these and other related questions by analysing, inter alia, South African legislation, the Constitution and case law, as well as comparing the law as it applies in the United Kingdom and the United States of America. The analysis and conclusion offered in this thesis aim to provide theoretical consideration to academics and practical application for employers that are faced with the reality of monitoring electronic communications.
AFRIKAANSE OPSOMMING: Alle werkgewers sal waarskynlik die een of ander tyd met die monitering van elektroniese kommunikasie gekonfronteer word. Die snelle voortuitgang in tegnologie wat daarop gemik is om te help met die monitering van elektroniese kommunikasie, maak dit vir werkgewers makliker as ooit tevore om sodanige kommunikasies van hulle werknemers te monitor. Daar is egter belangrike vrae wat oorweeg moet word wanneer die onderwerp van monitering van elektroniese kommunikasie ter sprake kom. Voorbeelde hiervan is "mag 'n werknemer regtens elektroniese kommunikasies monitor?" en "hoe raak monitering die werknemer se reg tot privaatheid?" Hierdie tesis is 'n poging om hierdie en ander verwante vrae te beantwoord deur die ontleding van, onder andere, Suid-Afrikaanse wetgewing, die Grondwet en die reg soos deur hofuitsprake ontwikkel, sowel as vergelyking van die reg soos wat dit van toepassing is in die Verenigde Koninkryk en die Verenigde State van Amerika. Die ontleding en gevolgtrekking wat in hierdie tesis aangebied word, is gemik op die verskaffing van teoretiese oorweging aan akademici en praktiese toepassing vir werkgewers wat met die realiteit van die monitering van elektroniese kommunikasies gekonfronteer word.
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Prat, Ramon Maria Immaculada. "La ejecución de sentencias en el ámbito del derecho del trabajo: en particular la ejecución de sentencias por despido." Doctoral thesis, Universitat de Barcelona, 2016. http://hdl.handle.net/10803/386477.
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Es difícil sintetizar en quinientas palabras, la presente Tesis Doctoral. Se parte del proceso ejecutivo como base de la explicación de la institución de la ejecución, contemplado en la Ley de Enjuiciamiento Civil (LEC) de 1/2000, de 7 de enero, que tiene carácter supletorio, respecto de la L.R.J.S. Se estudia la ejecución laboral, regulada en la vigente Ley Reguladora de la Jurisdicción Social (L.R.J.S.), en sus dos fases: ejecución provisional y ejecución definitiva. En la presente Tesis se tratan por un lado, las novedades que afectan a la ejecución como procedimiento: la figura del Secretario Judicial y la reforma efectuada por Ley 13/2009, y su nueva resolución procesal: el decreto y la posibilidad de dictar resoluciones orales. Por otro lado, se trata la incidencia de la Ley 22/2003 Concursal (modificada por Ley 38/2011) y su carácter controvertido en la ejecución laboral. Es de destacar, igualmente, la nueva configuración del Fondo de Garantía Salarial. La novedad de la reforma de la sustitución del despido por sanción y su tratamiento en la ejecución. Los distintos tipos de procesos en la ejecución: Ejecución de sentencias en materia de Seguridad Social; ejecución de sentencias de despido con especial referencia a los despidos colectivos y recientes sentencias del TS; ejecución de sentencias de conflicto colectivo y novedosa posibilidad de transacción en la ejecución. Hay una referencia a la ejecución laboral internacional. Finalmente constan las conclusiones a las que he llegado.És difícil sintetitzar en cinc-centes paraules, la present tesi doctoral. Es parteix del procés executiu com a base de l'explicació de la institució de l'execució, previst en la Llei d'Enjudiciament Civil (LEC) de 1/2000, de 7 de gener, que té caràcter supletori, respecte de la LRJS. S'estudia el execució laboral, regulada en la vigent Llei Reguladora de la Jurisdicció Social (LRJS), en les seves dues fases: execució provisonal i execució definitiva. En la present Tesi es tracten d'una banda, les novetats que afecten a l'execució com a procediment: la figura del secretari judicial i la reforma efectuada per Llei 13/2009, i la seva nova resolució processal: el decreto.y la possibilitat de dictar resolucions orals. D'altra banda, es tracta la incidència de la Llei 22/2003 Concursal (modificada per Llei 38/2011) i el seu caràcter controvertit en l'execució laboral. És de destacar, igualment, la nova configuració del Fons de Garantia Salarial. La novetat de la reforma de la substitució de l'acomiadament per sanció i el seu tractament en l'execució. Els diferents tipus de processos en l'execució: Ejecucion de sentències en matèria de Seguretat Social; execució de sentències d'acomiadament amb especial referència als acomiadaments col·lectius i recents sentències del TS; execució de sentències de conflicte col·lectiu i nova possibilitat de transacció en l'execució. Hi ha una referència a l'execució laboral internacional. Finalment consten les conclusions a què he arribat.
It is difficult to summarize in five hundred words, this PhD thesis. It is part of the executive process as a basis for explaining the institution of execution, provided for in the Code of Civil Procedure (LEC) 1/2000 of 7 January, which has additionally, regarding the LRJS. Provisonal final execution and performance: the work execution, regulated in the current law regulating the Social Jurisdiction (LRJS), in its two phases is studied. In this thesis are discussed on the one hand, developments affecting the implementation and procedure: the figure of the Clerk and the reform introduced by Law 13/2009 and further procedural order: the decreto.y the possibility of issuing resolutions oral. On the other hand, the incidence of Bankruptcy Act 22/2003 (as amended by Law 38/2011) and its controversial character in the work execution is. It is noteworthy, too, the new configuration of the Wage Guarantee Fund. The novelty of the reform of the replacement of the dismissal sanction and its treatment in execution. The different types of processes in execution: enforcement of judgments in matters of social security; enforcement of judgments of dismissal with particular reference to collective and recent judgments of TS layoffs; enforcement of judgments collective action and innovative potential transaction execution. There is a reference to international labor execution. Finally comprise the conclusions I have reached.
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Mamabolo, Lethabo Caroline. "An analysis of the concept of employee in South African Labour Law." Thesis, 2011. http://hdl.handle.net/10386/722.
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Thesis (LLM. (Labour Law)) -- University of Limpopo, 2011The definition of an employee in most protective labour legislations excludes various categories of workers. The definition of what an employee is, is different in labour legislation. A new presumption of what an employee is, is just a guideline and not exhaustive. The tests developed by our courts do not assist in defining an employee in boarderline cases. It is not simple as it originally seemed. In the beginning it seemed certain but in the end the definition can no longer be valid. The definition of an employee is a journey of a thousand miles which begins with the test step-with no end. The words of Francis Bacan seem to hold water regarding most definition of an employee. Francis Bacan said I quote ‘if a man will begin with certainties, he shall end in doubts, but if he will be content to begin with doubts, he shall end in certainties.
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Itzkin, Riaz. "Operational requirements as a fair reason for dismissal in South Africa." Thesis, 2012. http://hdl.handle.net/10210/5253.
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LL.MThe provisions of South Africa’s law on dismissal based on operational requirements are frequently relied on by employers who dismiss employees to further various objectives. Against this background, this dissertation critically analyses the law providing for employers to rely on their operational requirements as a basis for fair dismissal, and the legal principles on selecting employees for dismissal based on operational requirements. As part of this analysis, the approach in South Africa is compared with the approach in Germany, the United Kingdom and Australia. The analysis is based on a critical literature study that includes a consideration of the relevant legislation, treaties, conventions, directives, case law, recommendations, textbooks, journal articles and statistical sources. This dissertation draws broad conclusions regarding the contents, effects and shortcomings of the aspects of South African law on dismissal based on operational requirements that fall within its scope. In broad terms, this dissertation finds that the conceptual model underpinning the South African regime on dismissal based on operational requirements, is intrinsically sound, but that certain aspects require reform. It finds further that South Africa’s law on dismissal based on operational requirements generally provides employees with a relatively high degree of employment security, and severely limits managerial prerogative. This dissertation concludes that the primary areas requiring reform relate to the test for substantive fairness that does not include a proportionality analysis to weigh up the competing interests of the employer and the employee(s), and the requirements regarding selection criteria that fail to include consideration of the impact of dismissal on individual employees and their dependents. This dissertation makes proposals for reform in these areas.
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Davison, Ruth Louise. "Disciplining P-12 public school personnel for off-duty conduct an analysis of the judicial response /." 2005. http://etd.louisville.edu/data/UofL0100d2005.pdf.
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Van, der Merwe Francois Johannes. "Die invloed van onbillike arbeidspraktyke op die verbintenisse uit die dienskontrak." Thesis, 2015. http://hdl.handle.net/10210/14280.
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Mokabane, Mokgadi Jackson. "A critical analysis of the law relating to the fairness of promotion of employees." Thesis, 2012. http://hdl.handle.net/10386/723.
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Thesis (LLM. (Labour Law)) --University of Limpopo, 2012The issue of promotion in the workplace has become a subject of discussion these days. As this issue is sensitive and important to both employers and employees it will always bring about conflicting interacts and rights between the two parties. Promotion of employees in the workplace helps the employers to fill up vacant posts and at the same time helps some employees to move up the ladder or get promoted and thereby improving their livelihood or living conditions. In the process of doing this, some employees who did not succeed will feel disappointed and challenge the employer’s decision in the bargaining councils or Commission for Conciliation Mediation and Arbitration (CCMA) and even in courts. This dissertation has been extensively researched and supplemented accordingly by incorporating the latest case law in promotional disputes in the shop floor in court or arbitration proceedings. Both employers and employees will find the information contained in this comprehensive and reliable work an indispensible guide to a complex and yet interesting area of law. This work deals with promotion in the workplace in general and the manner in which employers should handle them in order to avoid unnecessary promotion disputes which are often protracted and costly and on how these disputes should be dealt with successfully once they arise.
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Risinamhodzi, Rosemary. "Dismissal for exercising statutory rights." Thesis, 2012. http://hdl.handle.net/10386/793.
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Thesis (LLM. (Labour Law)) -- University of Limpopo, 2012Since the advent of constitutional democracy, there has been a steady growth in the volume of employment and labour protection legislation.1 More than a decade following the enactment of the new labour code has witnessed an avalanche of decisions of courts and arbitration awards of labour adjudicatory tribunals.2 Many of them involve unfair dismissals generally, unfair suspensions,3 residual unfair labour practices,4 disputes over promotion hinging on affirmative action, employment equity and unfair discrimination,5 the recurrent problem of jurisdiction,6 and review of arbitration proceedings.7 While wage and disputes8 on the one hand, and strikes9 on the other will always feature as perennial events in the labour-management calendar, truly important interface over several years has been dismissal of employees for automatically unfair reasons. 1 See eg, Labour Relations Act 66 of 1995; Basic Conditions of Employment Act 75 of 1997; Employment Equity Act 55 of 1998; Educators Employment Act 76 of 1988; Promotion of Administrative Justice 3 of 2000; Protected Disclosures Act 26 of 2000; Public Service Act (Proc 103 of 1994) Skills Development Act 97 of 1998; Skills Development Levies Act 9 of 1999; Unemployment Insurance Act 30 of 1966; The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. 2 See generally; Zondo, R ‘The new Labour Courts and labour law: The first seven months of the new LRA’ (1998) 19 ILJ 686; Wallis, M.J.D. ‘The new era – How decisive is the break from the past (1999) 20 ILJ 902. 3 Ngwenya v Premier of KwaZulu-Natal [2001] 8 BLLR 924 (LC); MEC for Tourism Affairs: Free State v Nondumo & others (2005) 26 ILJ 1337 (LC); SAPU & another v Minister of Safety & Security & another (2005) 26 ILJ 524 (LC). 4Department of Finance v CCMA & others (2003) 24 ILJ 1969 (LAC). 5 See eg: Minister of Finance & another v Van Heerden (2005) 26 ILJ 1593 (CC). For a detailed discussion: Zondo, R ‘The new Labour Courts and labour law: The first seven months of the new LRA’ (1998) 19 ILJ 686; Wallis, M.J.D. ‘The new era – How decisive is the break from the past (1999) 20 ILJ 902. 6 See eg: Old Mutual Life Assurance Co SA Ltd v Gumbi (2007) 28 ILJ 1499 (SCA). See also Pretorius SC, P ‘A dual system of dismissal law: Comment on Boxer Superstores Mthatha & another v Mbenya (2007) 28 ILJ 2209 (SCA) (2007) 28 ILJ 2172; 7 See generally Carephone (Pty) Ltd v Marcus NO & others1999 (3) SA 304 (LAC); Sidumo & another v Rustenburg Mines Ltd & others (2007) 28 ILJ 2405 (CC). 8 See generally, Du Toit, D ‘What is the future of collective bargaining (and Labour Law) in South Africa?’ (2007) 28 ILJ 1405; Landman, A ‘The duty to bargain – an old weapon pressed into service’ (2004) 25 ILJ 39. 9 Modise v Steve’s Spar Blackheath (2000) 21 ILJ 519 (LAC); PSA v Minister of Justice & Constitutional Development & others [2001] 11 BLLR 1250 (LC). See also Myburgh, JF ‘100 years of strike law’ (2004) 25 ILJ 962. 8 In pith and substance, the study concerned with dismissals that undermine the fundamental values that labour relations community in our country depends on to regulate its very existence. In the first part of the study, the constitutional and statutory framework will be briefly considered. An early appreciation of the constitutionalisation of the right to fair labour practices will provide a point of reference for evolving contemporary labour law corpus on automatically unfair dismissals. The second part takes a frontal examination of novel questions of constitutional vintage concerning automatically unfair dismissals. In turn, this raises questions of dismissals for exercising statutory employment rights. The other aspects are instances of employee victimisation resulting from lodging a grievance, protected disclosures, as well as trade union activities. Also arising are dismissals that can be ascribed to unfair discrimination. While the first part of this study concentrates on those situations where the employer has victimised and/or dismissed for exercising statutory rights, part three examines that question which has vexed the Labour Court, Labour Appeal, and to a lesser extent the Supreme Court of Appeal in recent times, the intersection between automatically unfair dismissals on the one hand, and corporate restructuring, on the other. In effect, the contentious issues naturally call for discussion: the uneasy relationship between corporate restructuring and collective bargaining, dismissal of protected strikers for operational reasons, dismissals in support of employer’s demands as well as dismissals of transferred employees consequent to transfer of undertaking. Before moving onto the heavyweight topic of automatically unfair dismissals, it is perhaps appropriate at this stage to reflect on the constitutional and statutory framework underpinning the Labour Relations Act 66 of 1995.
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Matlou, Eliah Pheagane. "An analysis of reinstatement as a remedy to unfair dismissal." Thesis, 2013. http://hdl.handle.net/10386/1026.
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Thesis (LLM. (Labour Law)) -- University of Limpopo, 2013Reinstatement is one of the remedies for unfair dismissals. Dismissed employees have a recourse to approach the Commission for Conciliation, Mediation and Arbitration1 or labour courts to seek reinstatement. The arbitrator or the courts have a discretion to order reinstatement based on the facts of the case, sometimes retrospectively. Retrospectivity is a discretionary matter in the hands of the courts and therefore the courts of law have been inundated with cases where the employers wanted to limit the retrospectivity of the application of reinstatement as a remedy for unfair dismissals. On the other hand, the dismissed employees would want the court to extend the application. In other circumstances the court would award compensation instead of retrospective reinstatement like where reinstating the employee is just practically impossible or the employee himself does not want to be reinstated. The Labour Relations Act2 has limited the power or discretion of the employers to dismiss employees at will. Section 185 of the LRA provides that there should be fair and valid reason for dismissals. The employer would have to prove the reason for dismissal for it to be valid. On the other hand, the case law also has established that where there is unfair dismissal, the arbitrator or the court must give the primary remedy in favour of the employees which is to reinstate them in their work. Such reinstatement would have the effect as if the employee was never dismissed in the first place.
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Kasuso, Tapiwa Givemore. "The definition of an "employee" under labour legislation : an elusive concept." Diss., 2015. http://hdl.handle.net/10500/21121.
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