Dissertations / Theses: 'Unfair labor practices'

1

Share, Hanli. "Suspension as an unfair labour practice." Thesis, Nelson Mandela Metropolitan University, 2013. http://hdl.handle.net/10948/d1018655.

Full text

Abstract:

Suspension as a form of an unfair labour practice can be of two categories. There could be a situation where an employer suspends an employee as a disciplinary sanction after an employee has committed an act of misconduct. This is often referred to as a punitive suspension. An employer may also suspend an employee pending a disciplinary hearing. In this case the employee has not yet been found guilty because the investigation into the alleged misconduct is still on going. The employee may be suspended as a way of preventing him from interfering with the investigation process into the alleged misconduct. This form of suspension is often referred to as a preventative suspension. It is very important to note the distinction between the two forms of suspension because the processes that are followed when effecting them are different. Failure to acknowledge the difference might result in a situation where an employer might be effecting a preventative suspension but the consequences might be that of a punitive suspension and end-up being an unfair labour practice. Suspension is a disciplinary measure, and it is important to note that in the event that the employer elects to implement a suspension, its conduct must be disciplinary in nature and intent and should be corrective rather than punitive.Unlike dismissals where the Code of Good Practice of the Labour Relations Act, No 66 of 1995 provides guidance on what constitutes procedural and substantive fairness, there are no guidelines on what constitutes procedural and substantive fairness when it comes to suspensions. This has resulted in a situation where suspension is treated as a minor aspect of disciplinary measures that is frequently abused as it is often on full remuneration. This, however, does not allow an employer to suspend employees at will, without merit and without following proper procedure. Suspension could have severe adverse effects on employees and often affects their reputation, goodwill, human dignity, self-esteem and the right to meaningful association and work. It is for this reason that suspension must be effected in a way that is procedurally and substantively fair.Punitive suspension is implemented as a sanction and is often without pay and is a last resort prior to dismissal. Preventative suspension occurs prior to a disciplinary hearing, with the aim of temporarily removing the employee from the workplace to enable the employer to conduct a proper investigation without interference. Unfortunately preventative suspensions are often abused by employers in that they protract over extended periods of time, making the preventative suspension punitive in nature, to the extent that the courts have been forced to intervene and lay down stringent requirements that must be met in order to prevent such abuse.There are various requirements for suspension which range from the intention of the employer, the audi alteram partem rule, sufficient reasons prior to suspension to period of suspension. Most employment relationships are governed by disciplinary codes or collective agreements, which often place limitations on the concept of suspension. Some codes provide for special leave at the option of the employee, which the employer often abuses instead of utilizing the preventative suspension option. This, however, is more often than not to suit a political agenda.In the event of non-compliance by an employer, an employee is not left remediless. An unfair suspension constitutes an unfair labour practice and an employee has the right to refer such dispute to the relevant labour forums like the CCMA or the relevant bargaining council. Employees are cautioned not to refer their disputes to the Labour Court for final relief, but rather to only approach the courts for urgent interim relief, like interdicts.

APA, Harvard, Vancouver, ISO, and other styles

2

Brand, Hugo. "Unfair discrimination in recruitment practices." Thesis, Nelson Mandela Metropolitan University, 2015. http://hdl.handle.net/10948/d1021197.

Full text

Abstract:

The focus of this paper is to emphasize the importance for every employer to avoid unfair discrimination during the recruitment process and to value diversity in the workplace. This is not only a legal requirement, but also gives an employer the best chance of getting the right person for the job. It is crucial to understand that job applicants are mostly people that employer’s do not actually employ, but might be able to make an unfair discrimination claim against the employer if the claimant believes he/she was not selected for a job because the employer discriminated against them unlawfully in the recruitment process. When writing the job description and a person specification, the employer should state clearly what tasks the person will have to execute and what skills will be needed for the job. Job descriptions should accurately describe the genuine essential duties and inherent requirements of the job. Personnel specifications should accurately describe the relevant, non-discriminatory and objectively justifiable requirements to be met by the post-holder. Specifications should not have any requirements that are not directly related to the job and it is important for employers to provide evidence that each recruitment and screening practice is job-related and consistent with business necessity. Employers are advised to devise and implement recruitment procedures and guidelines for all staff and applicants involved in the process of recruitment and to ensure that these incorporate the principles of the organisation’s equal opportunity principles. Employers should administer recruitment and other selection procedures without regard to race, colour, national origin, sex, religion, age and disability. Even though South Africa is now governed by a new democratic order, historical workplace inequalities still need to be addressed. Not only compelled to redress inequalities by the Constitution, the South African government was motivated by the International Labour Organisation (ILO) to enact laws that would prohibit discrimination and promote the economic advancement of the majority. Recruitment tests or selection procedures must be job-related and its results appropriate for the employer’s purpose. If a recruitment procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. The justification of discrimination in recruitment practices and affirmative action is only meaningful if it is targeted towards particular aims. One of the more important defences against unfair discrimination in the workplace is the general fairness defence. The general fairness defence is considered to be an applicable defence based on fairness in situations where the two statutory exceptions do not apply. This means than when one looks at the concept of unfair discrimination it implies that discrimination may be justified in certain circumstances Legislation prohibits discrimination on various grounds especially throughout the process of recruitment and selection. There are limited exceptions to the general principle that it is unlawful to use gender, race, religion or sexual orientation as a criterion in the recruitment process. These exceptions are known as genuine occupational qualifications and the specifications for jobs should be carefully examined to ensure that there are no factors contained that are indirectly discriminatory. Focus must be placed on avoiding indirect discrimination in job factors. In the early stages of the recruitment process, an employee specification should be written that describes the type of person the employer seeks to be appointed in terms of qualifications, experience, skills and personal attributes. The imposition of inappropriate or unsuccessfully high standards or criteria may indirectly discriminate against people from a particular minority or racial group or religion. Employees must have the necessary skills to demand employment equity status especially where a designated employer does not have sufficient affirmative action employees and is obliged to rectify the situation. However, this does not mean that affirmative action applicants must be chosen above non-affirmative action employees. The principle of reversed discrimination stands firm if the motivation for appointing a particular person is based on a genuine desire to promote diversity, to apply affirmative action and to increase the numbers of people from a disadvantaged group in employment, or to create a more balanced workforce.

APA, Harvard, Vancouver, ISO, and other styles

3

Abrahams, Dawood. "The unfair labour practice relating to promotion." Thesis, University of Port Elizabeth, 2004. http://hdl.handle.net/10948/329.

Full text

Abstract:

This article deals with the South African law relating to promotions. As promotion disputes mostly arise as alleged unfair labour practices, a short discussion on how the concept of an unfair labour practice developed in South Africa is undertaken. In this regard the common law is studied in order to see whether it makes provision for protection of employees subjected to unfair labour practices relating to promotions. Through this study one soon realises that the common law is in fact inadequate to deal with unfair labour practices relating to promotions, and thus an enquiry into various legislative provisions are undertaken. The impact of the all-important Wiehahn Commission of Enquiry, established in 1979, is also briefly discussed. In this article an attempt is made to define the term ‘promotion’. In this regard reference is made to some cases adjudicated upon by the Commission for Conciliation Mediation and Arbitration (the “CCMA”). The cases referred to seem to favour the view that when one is defining the term ‘promotion’, regard must be had to the employment relationship between the employer and the employee, as well as the nature of the employee’s current work in relation to the work applied for, in order to establish whether in fact a promotion has taken place. It is necessary to consider what unfair conduct is defined as in the context of promotions. It seems that managerial prerogative is at the center of the enquiry into unfair conduct of the employer. Further to the analysis of unfair conduct, various principles that govern both procedural and substantive unfairness are considered. These principles are dealt with separately with reference to case law. Lastly the dispute resolution mechanisms are considered and a brief discussion on remedies is undertaken. The remedies are discussed with reference to case law, as well as the provisions of the Labour Relations Act 66 of 1995 as amended by the Labour Relations Amendment Act 12 of 2002. The broad headings of this article are accordingly unfair labour practices, definition of promotions, unfair conduct of the employer, onus of proof and remedies. It is concluded with the proposition that once an employer has set policies and procedures in place in dealing with promotions, then such an employer should stick to those policies and procedures within the context of the law, as well as within the percepts of the vague and nebulous term of ‘fairness’. Should the employer fail to do so, the majority of cases indicate that such an employer will be guilty of an unfair labour practice relating to promotion.

APA, Harvard, Vancouver, ISO, and other styles

4

Timothy, Andrea Francis. "The unfair labour practice relating to benefits." Thesis, Nelson Mandela Metropolitan University, 2015. http://hdl.handle.net/10948/d1021157.

Full text

Abstract:

The meaning of the term “benefits” in the context of unfair labour practice jurisprudence, having previously been unsettled for more than a decade, has now been settled by the Labour Appeal Court in the Apollo.1 Prior to Apollo,2 our courts have struggled to adopt a stance to maintain the distinction between disputes of rights and disputes of interest as separate compartments. The prevalent view at that stage was that, in order for an employee to lodge a dispute at the CCMA or Bargaining Council the employee would have to show that he or she had a right to the benefit that arises by virtue of contract, statute or collective agreement, failing which the CCMA or a Bargaining Council would not have the jurisdiction to determine the dispute, in which case it may constitute a dispute of interest and the employee will have to embark on an industrial action to secure a benefit. Apollo3 endorsed a previous decision of the Labour Court,4 i.e. by placing “benefits” into the following two categories: (1) Where the dispute is about a demand by employees concerning their benefits, it can be settled by way of industrial action. (2) Where the dispute concerns the fairness of the employer's conduct, it must be settled by way of adjudication or arbitration. As a result of the above categorisation, the CCMA or Bargaining Council may adjudicate a dispute relating to benefits where there is a pre-existing benefit and the employer refuses to comply with its obligation towards the employer in that regard. It may also adjudicate disputes relating to the provision of a car allowance (i.e. where the employer retains the discretion to grant or withhold the allowance) and disputes relating to the provision of bonuses (i.e. where the employer retains the discretion to grant or withhold the bonus). In this treatise, I set out the history and development of the legislation in relation to the concept of “benefits” (in the context of unfair labour practice) so as to understand how our Labour Appeal Court has now come to settle the issues above.

APA, Harvard, Vancouver, ISO, and other styles

5

Tsheko, Toto. "Unfair labour practice relating to promotion in the public education sector." Thesis, Nelson Mandela Metropolitan University, 2015. http://hdl.handle.net/10948/6050.

Full text

Abstract:

This topic deals with unfair labour practice relating to promotion and will focus mainly on the public education sector. The Labour Relations Act of 1956 and 1995, with respect to the concept of unfair labour practice, will be analysed. It is through this discussion that one appreciates how the concept of unfair labour practices has evolved in South African law. An attempt is made to define promotion and in this regard reference is made to cases decided upon by the Commission for Conciliation, Mediation and Arbitration (CCMA) or the Labour Court (LC). Furthermore, promotion is defined within the context of public education and applicable legislation. Due regard must be to the employment relationship between the employer and the employee as well as compare the current employee’s job with the job applied to. Unfair conduct by the employer will be discussed within the context of promotion. The prerogative of the employer will be discussed with reference to case law and that discussion will include an analysis of various principles with regard to procedural and substantive fairness. Various remedies provided for in dispute resolution mechanism in line with the provisions of the Labour Relations Act 66 of 1995 and relevant case laws will also be discussed. The last chapter deals with how to strike a balance between employee rights (that is educators) and the rights of learners, in the context of promotion disputes. In this regard reference to case laws will be made. In general the topic will deal with unfair labour practice, definition of promotion including promotion of educators, unfair conduct of the employer, onus of proof, remedies and striking the balance between the rights of the learners and educators.

APA, Harvard, Vancouver, ISO, and other styles

6

Gixana-Khambule, Bulelwa Judith. "Unfair discrimination in employment." Thesis, University of Port Elizabeth, 2004. http://hdl.handle.net/10948/359.

Full text

Abstract:

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.

APA, Harvard, Vancouver, ISO, and other styles

7

Cokile, Siyabonga. "The remedies for unfair dismissal." Thesis, Nelson Mandela Metropolitan University, 2009. http://hdl.handle.net/10948/1033.

Full text

Abstract:

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.

APA, Harvard, Vancouver, ISO, and other styles

8

Sotshononda, Ndomelele. "Recent development concerning the unfair labour practice relating to promotion." Thesis, Nelson Mandela Metropolitan University, 2017. http://hdl.handle.net/10948/14400.

Full text

Abstract:

This treatise considers the promotion process in the workplace and focuses on the meaning of promotion and the provisions of the Labour Relations Act, 66 of 19951 (Hereinafter referred to as the LRA) relating to promotion. It also considers unfair labour practices from an employee’s perspective. Chapter 2 of this treatise discusses the processes employers should follow when dealing with promotions. Neither the LRA nor the Constitution provides employees with a right to be promoted. However, the Constitution2 provides that all workers have the right to fair labour practices. The concept of unfair labour practices was introduced in South Africa in 1979 following the recommendations of the Wiehahn Commission. For a long time in South Africa the concept of unfair labour practice was defined in broad terms and included unprotected strikes and lockouts. It was left to the Industrial Court to determine conduct which constituted an unfair labour practice. The promulgation of LRA (which took effect in 1996) provided a clear definition of what constitute unfair labour practice in the workplace. The LRA provided a closed list of practices which constitute an unfair labour practice which provided as follows: “(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee; (b) unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee; (c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and (d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.”The LRA brought about significant changes including the exemption of trade unions from committing unfair labour practice to the employers as it was the position under the old Act. There are conflicting views amongst employers and employees as well as labour law experts regarding the determination of the remedies available to applicants when unfairness has been proven in promotion disputes. It is has been observed that many awards has been successfully reviewed by employers, particularly awards that involves protective promotion. Chapter one will be an introduction regarding unfair labour practice, the originality of the concept and the changes and developments the concept has gone through. Chapter two will investigate the meaning of promotion in the workplace. This chapter will focus on the definition of promotion. Elements that constitute promotion will also be addressed. Chapter three considers the provisions of the LRA relating to unfair labour practice: promotion. However, the focus will be narrowed down from the definition of unfair labour practice to the issue of promotion as it is central to the study. Chapter four will examine the manner in which the applicants are differentiated. Furthermore, this chapter will also address the issue of whether the internal applicant should be given preference on the basis that he or she has been working in the organisation but not in the advertised post. Chapter five discusses the importance of substantive and procedural fairness in promotion processes. Chapter six examine the appropriate remedies for aggrieved applicants during the promotion process. A disappointed candidate has a statutory right to approach the relevant bargaining council to seek recourse with regard to the matter. The dispute must be referred to the CCMA within 90 days by the aggrieved applicant.

APA, Harvard, Vancouver, ISO, and other styles

9

Moela, Matlose Phineas. "Exploring the unfair labour practice relating to promotion in the education sector." Thesis, Nelson Mandela Metropolitan University, 2016. http://hdl.handle.net/10948/12209.

Full text

Abstract:

This research paper explores the means at the disposal of employers and employees to address the phenomenon of unfair labour practice relating to promotion in the workplace. Furthermore the paper endeavours to illustrate that there are aspects of South African law that provide a framework within which unfair labour practices can be addressed in the workplace. As I explore these fundamental issues of the law, the fairness relating to recruitment and selection practices will be examined. Some recommendations are also made as to how departments and organisations must address promotion issues at the workplace. There are often perceptions of alleged unfairness committed by employers in the workplace. These perceptions emanate from a number of allegations. The allegations include but are not limited to past practices, policy considerations, acting in higher positions, prior promises, being better qualified, receiving higher marks in the interviews, irregular conduct by the interviewing panel, unfair decisions by appointing authority or their failure to apply their minds, affirmative action or equity considerations. The study seeks to explore some of these allegations and further provide certainty as to what the legal recourse is under those circumstances. The research further seeks to provide the legal certainty pertaining to issues of promotion in the workplace. The study commences on a general approach to the principles of law relating to unfair labour practice in the public sector. Further developments of the law relating to promotion as it applies to the education sector are explored. The study culminates with possible remedies available to instances where an unfair conduct has been found to be committed by the employer during the promotion process. There is sufficient case law which covers the promotion processes. The study also exposes forms of relief which can be awarded to applicants who had lodged disputes in which it is found that indeed the employer had committed unfair labour practice relating to promotion. The study further aims to explore both procedural and substantive fairness with regard to appointment and promotion processes. Issues which are dealt with concerning fairness in promotion disputes include polygraph tests, whether there are hard and fast rules to the process, whether employees have the general right to promotion, what the requirements for fair appointment or promotion are, the law on substantive fairness, affirmative action and promotion, the consequences of failure to appoint the most suitable candidate, dealing with candidates who obtained higher scores in the interviews, promoting a candidate who had not met minimum requirements and promoting candidates based on flawed scores. The research also deals with frivolous referrals of disputes and costs which can be awarded against such applicants. Further issues which are dealt with in this research include the concept of “joinder” which is critical where there is an incumbent in the post which is disputed and the relief sought is that such post must be set aside. Further clarity is given on who is supposed to be joined in a dispute which is referred in the education sector. The CCMA rules on joinder are also clarified. The consequences of failure to join the incumbent are also dealt with. The research is also clarifying the concept of prematurity or ripeness in promotion disputes and its consequent lack of jurisdiction if such is referred.

APA, Harvard, Vancouver, ISO, and other styles

10

Dayimani, Vuyisile. "The determination of compensation in unfair dismissal cases." Thesis, Nelson Mandela Metropolitan University, 2014. http://hdl.handle.net/10948/d1020775.

Full text

Abstract:

The LRA 66 of 1995 was established to give effect to section 23(1) of the Constitution of the Republic of South Africa, which guarantees that everyone has a right to fair labour practices. Amongst others, the purpose of the LRA is to advance economic development, labour peace and the effective resolution of labour disputes. At common law termination of employment was occasioned by the conduct of the employer or employee, in terms of which either party may terminate an employment contract by giving agreed notice or reasonable notice. The LRA broadened the common law concept of “repudiation” of a contract of employment in terms of which section 186 of the LRA now defines the term “dismissal” to mean various possible instances that can be caused by the employer or employee. Furthermore, section 185 of the same Act clearly states that a dismissal can be found to be unfair and makes provision for redress to an employee who would be aggrieved by a dismissal. Compensation is one of the remedies that can be awarded to an employee who is found to have been unfairly dismissed. Unlike the LRA of 1956 which gave the courts an unfettered discretion regarding the compensation that could be awarded, section 194 of the current LRA places a limit on the compensation amount that can be awarded. A decision hereon is determined with reference to whether the dismissal is found to have been procedurally, substantively unfair or both. The Act further requires that the compensation must be just and equitable. A challenge in applying section 194 of the Act in this regard is that there would be vast inconsistencies in terms of the amount of compensation to be awarded and that certain presiding officers could consider different approaches in considering factors to be determined when deciding on compensation. In many other instances compensation for unfair dismissal would be decided around the idea of solely punishing the employer. This research document is mainly concerned with identifying the said challenges through case law by considering the decisions of the commissioners and judges in interpreting the old and current provisions of section 194 of the Act. The old section 194 of the Act created a formula to be followed by presiding officers when making a determination on the compensation awarded. The interpretation of the section and its formula brought with it its own complications. The amended section 194 on the other hand, conferred a discretion on presiding officers to award compensation within the caps of 12 months and 24 months for procedurally and substantively unfair dismissal respectively, for as long as the compensation would be just and equitable in all circumstances. Relevant case law and the opinions of labour law experts have been of great assistance in interpreting the current section 194. The factors do not constitute an exhaustive list. They are a mere guideline to presiding officers so as to eliminate or minimize inconsistencies in awarding compensation.

APA, Harvard, Vancouver, ISO, and other styles

11

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.

Full text

Abstract:

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.

APA, Harvard, Vancouver, ISO, and other styles

12

Le, Roux André. "Inherent requirements of a job as a defence to unfair discrimination." Thesis, Nelson Mandela Metropolitan University, 2015. http://hdl.handle.net/10948/8757.

Full text

Abstract:

Equality is a fundamental constitutional value in the Constitution. Formal equality presupposes that all persons are equal bearers of rights and that inequality can be eliminated by extending the same rights to all. Formal equality is blind to social and economic differences between groups and individuals. Substantive equality, on the other hand, is receptive to entrenched, structural inequality, meaning that the equality clause of the Constitution must be read as founded on a substantive concept of equality. An employer can utilise the defence of an inherent requirement of a job in the case of an unfair-discrimination claim since the defence is available in terms of both the Employment Equity Act, in respect of employment discrimination, and the Labour Relations Act in respect of discriminatory dismissals. The defence is narrow in that only essential duties of a particular job will be taken into account to determine inherent requirements of a particular job. Reported judgments where this defence is used are scant. What makes the defence more onerous is that an employer has to show that the particular employee could not be reasonably accommodated, before the inherent-requirement defence will succeed. It is integral to the determination of whether there was unfair discrimination and whether such discrimination was justifiable. An important debate in our discrimination law relates to the question of whether any significance should be attached to the fact that only unfair discrimination is outlawed. Neither of the aforementioned pieces of legislation clearly state that affirmative action or an inherent requirement of a job are the only defences available to employers. Where these two defences are found to be not applicable, may the fairness be decided in terms of a general fairness defence? This question is also addressed in the present treatise. It is submitted that foreign law is a valuable interpretive tool, provided it is used wisely, in that judgments originating from courts and tribunals in the United Kingdom and Canada may assist to provide an understanding of the issues central to employment discrimination law and the parameters of the defence of inherent requirements of the job. Thus, in developing employment discrimination law in South Africa, consideration of foreign jurisprudence may prove informative.

APA, Harvard, Vancouver, ISO, and other styles

13

Voultsos, Leon. "Fairness of a dismissal from a contractural and administrative law perspective." Thesis, Nelson Mandela Metropolitan University, 2010. http://hdl.handle.net/10948/1288.

Full text

Abstract:

Section 157 of the LRA provides for the nature and extent of the Labour Courts jurisdiction. This provision has been subjected to extensive interpretation by the Judiciary and the various interpretations of the courts have not been entirely consistent. Specific mention is made of the relevance and applicability of section 157(1) and (2) of the LRA regarding the overlap between administrative law and contractual law into labour law. Reference will be made to case law specifically dealing with cases concerning the jurisdiction of the civil courts and labour courts where cases concerning employment and labour matters were brought either in terms of the PAJA or on the basis of contract law. The question arose whether matters which appear to be quintessential labour matters but simultaneously also capable of being entertained on the basis of the PAJA or in terms of contract law are matters which, generally, in terms of section 157(1) of the LRA fall within the exclusive preserve of the Labour Court or, in terms of section 157(2) of the LRA, fall within the concurrent jurisdiction of the High Court and the Labour Court. The discussion which follows will also include reference to the current legal position pertaining to the prohibition of public sector employees from pressing their claims relating to employment or labour matters in the civil courts on the basis of the PAJA as decided in the Chirwa v Transnet Ltd (2008) 2 BLLR 97 (CC) and; the impact thereof on employees pressing claims pertaining to employment and labour matters in the civil courts on the basis of contract law. In addition the similarity of considerations which are common to both administrative law and contract law regarding the “overlap” of each into labour law will be considered and discussed. In the light of the discussion which follows agreement will be expressed with certain decisions of the High Court and the SCA where civil courts were held to retain jurisdiction to entertain common law contractual claims concerning labour and iv employment matters as opposed to restricting all employment and labour matters to the forums established under the LRA and to claims and remedies which are provided for by the LRA.

APA, Harvard, Vancouver, ISO, and other styles

14

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 text

Abstract:

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.

APA, Harvard, Vancouver, ISO, and other styles

15

Gelandt, Jacobus Johannes. "Opvoeders in landelike skole se kennis van onbillike arbeidspraktyke." Thesis, Cape Peninsula University of Technology, 2009. http://hdl.handle.net/20.500.11838/1855.

Full text

Abstract:

Thesis (MTech (Education))--Cape Peninsula University of Technology, 2009
The purpose of this study was to determine the post level I CS-educators' knowledge of their rights and duties in respect of unfair labour practice. The specific aim was to determine educators' knowledge of unfair labour practices in terms of the literature study. The method of research was based on interviews with post level I CS-educators in rural primary schools. The interviews consisted of structured questions of which the format as well as the order was determined beforehand. No coaching was given to respondents because it may have compromised their answers. The sample consists often educators (five males and five females) who teach in rural schools. In this way a fair opportunity was granted to both groups to be included in the sample. The researcher is of the opinion that this is a reasonable representation of the total sub population. From the empirical research it was evident that educators in rural schools had a vague knowledge of unfair labour practices. Shortcomings that were apparent from this study was addressed, recommendations were made, as well as possible future research on related topics was discussed.

APA, Harvard, Vancouver, ISO, and other styles

16

Grigor, Francois. "Establishing a fair sanction in misconduct cases." Thesis, Nelson Mandela Metropolitan University, 2013. http://hdl.handle.net/10948/d1021217.

Full text

Abstract:

It is the right of every employee in South Africa not to be unfairly dismissed. According to the Labour Relations Act 66 of 1995 an employer may fairly dismiss an employee on the grounds of conduct, capacity or operational requirements. In addition, the employer is required to also comply with a fair procedure before effecting a dismissal. The requirement of procedural fairness is, however, not as stringent as it was under the previous dispensation established by the former Industrial Courts in terms of the earlier Labour Relations Act. The question as to whether or not a reason for dismissal is fair, is to be established by the facts of each individual case, and the suitability of dismissal as an appropriate remedy. It remains a challenge to establish if dismissal would be an appropriate sanction in a particular case of misconduct. The test is whether the award is one that a reasonable decision-maker could arrive at taking into account the evidence to be considered. It is no longer the employer’s view that is dominant, but “[u]ltimately, the commissioner’s sense of fairness is what must prevail”. The notion of fairness however applies equally to employer an employee and it involves balancing the competing and, every so often, inconsistent, interests of the employer on the one side, and the employee on the other side. The relative weight afforded to the particular interests creates very specific challenges, but nonetheless depends essentially on the overall circumstances of each individual case. Whether dismissal for misconduct is for a fair reason would established by the facts of the case, coupled with the appropriateness of dismissal as a sanction. Dismissal as a penalty should be reserved for cases involving serious misconduct and repeated disciplinary infractions. A crucial question would be whether the misconduct is of such a serious nature that it goes to the core of the employment relationship and makes any possible continued employment relationship intolerable. Additionally, apart from aspects like the importance of the rule breached and the harm caused by the employee’s breach, certain considerations should also be accounted, like length of service disciplinary history, and the employee’s personal circumstances, as well as the particular circumstances surrounding the infringement. Dishonest conduct by an employee that destroys the goodwill, trust and confidence an employer holds towards an employee, would normally be deemed as a significant breach which may justify a sanction of dismissal. The test is whether or not the misconduct was of such serious nature that it would make a continued employment relationship intolerable; “whether or not respondent’s actions had the effect of rendering the continuation of the relationship of employer and employee intolerable”. It still remains for the employer to present evidence that a continued relationship would be intolerable and not to merely liken serious misconduct with such a finding. Relatively recent case law seems to suggest that employers are entitled to a strict attitude towards dishonesty as a ground for dismissal. The objective of the CCMA Guidelines on Misconduct Arbitrations, effective from 1 January 2012, is to ensure that arbitrators issue consistent awards on dismissals involving misconduct. The questions that the guidelines seek to address are, inter alia, (i) how an arbitrator should conduct the proceedings; (ii) the valuation of evidence for the purpose of making an award; (iii) assessing the procedural fairness of a dismissal; (iv) assessing the substantive fairness of a dismissal; and (v) determining the remedy for an unfair dismissal. The Guidelines are peremptory in that arbitrators will have to take them into account and will have to provide an explanation if they deviate. It is undoubtedly a useful tool in guiding employers on what they need to present to commissioners at arbitration.

APA, Harvard, Vancouver, ISO, and other styles

17

Van, Loggerenberg Johannes Jurgens. "Constructive dismissal in labour law." Thesis, University of Port Elizabeth, 2003. http://hdl.handle.net/10948/301.

Full text

Abstract:

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.

APA, Harvard, Vancouver, ISO, and other styles

18

Van, Der Merwe Christine. "Creating a new underclass : labour flexibility and the temporary employment services industry." Thesis, Rhodes University, 2010. http://hdl.handle.net/10962/d1003079.

Full text

Abstract:

The core of the research focuses on the Temporary Employment Services (TES) Industry and its ability to provide labour flexibility for a number of client firms. The underlying notion that work is changing and becoming more flexible creates an exploratory realm for the concept of non-standard employment. The thesis draws on the conceptual model of the „flexible firm‟ and argues that the rise in non-standard forms of employment, particularly temporary employment within the TES industry, is primarily a result of the demand for labour flexibility. The TES industry that offers „labour on demand‟ is found to be an extremely secretive industry that is diverse in both its structure and services. The thesis reveals that the clients within the triangular employment relationship (TER) are reaping the most benefits especially with regard to escaping their obligations as the employer. The thesis explores human resource practices, unfair labour practices and the extensive loopholes exploited by the TES industry because of poor regulation. Consequently, the industry creates an „underclass‟ that is unprotected, insecure and easily exploitable. Qualitative research techniques were used in the form of semi-structured interviews. The thesis provides insights into the demand and supply of temporary workers in Port Elizabeth and addresses the problems associated with a TER and the TES industry as a whole.

APA, Harvard, Vancouver, ISO, and other styles

19

Strydom, Wynand Wilhelmus. "The requirement of "bumping" in operational-requirement dismissals." Thesis, Nelson Mandela Metropolitan University, 2015. http://hdl.handle.net/10948/5896.

Full text

Abstract:

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.

APA, Harvard, Vancouver, ISO, and other styles

20

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.

Full text

Abstract:

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.

APA, Harvard, Vancouver, ISO, and other styles

21

Sipuka, Sibongile, and Supervisor details. "Termination of the contract of employment not constituting dismissal." Thesis, Nelson Mandela Metropolitan University, 2015. http://hdl.handle.net/10948/4811.

Full text

Abstract:

Section 23 of the Constitution provides that everyone has a right to fair labour practice. The constitutional right to fair labour practices includes the right not to be unfairly dismissed and is given effect to by section 185 of the LRA. The constitutional right not to be unfairly dismissed is given effect to by Chapter VIII of the Labour Relations Act 66 of 1995 (the LRA), which provides a remedy for an unfair dismissal. Schedule 8 of the LRA contains a “Code of Good Practice: Dismissal”, which the Commission for Conciliation, Mediation and Arbitration (the CCMA) and the Labour Courts must take into account when determining the fairness of a dismissal. The LRA expressly recognises three grounds for termination of the employment contract namely; misconduct on the part of the employee, incapacity due to an employee’s poor work performance, ill health or injury and termination due an employer’s operational requirements. In terms of the LRA, a dismissal must be procedurally and substantively fair. The requirements for procedural and substantive fairness are contained in Schedule 8 of the Code of Good Practice: Dismissal. The provisions of section 185 of the LRA apply to all employers and employees in both the public and the private sectors, with the exception of members of the National Defence Force, the National Intelligence Agency, the South African Secret Service and the South African National Academy of Intelligence. Section 213 of the LRA defines an “employee” as any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration and any person who in any manner assists in carrying out or conducting the business of an employer. Section 200A of the LRA sets out the presumption as to who is an employee. This is a guideline to assist in determining who is an employee. The Basic Conditions of Employment Act 75 of 1997 (the BCEA) sets minimum terms and conditions of employment including the notice of termination of employment. Under the common law an employment contract of employment can be terminated on either the expiration of the agreed period of employment or on completion of the specified task in cases of fixed-term contracts. Also, in terms of general contract principles an employment contract may be terminated by notice duly given by either party or by summary termination in the event of a material breach on the part of either party. The death of either party may terminate the employment contract. However, the death of an employer will not necessarily lead to the contract’s termination. An employment contract may also terminate by operation of law or effluxion of time namely retirement and coming into being of fixed-term contracts, by mutual agreement, employee resigning, due to insolvency of the employer and due to supervening impossibility of performance. In the circumstances indicated above, the termination of the contract of employment does not constitute dismissal. This means that the CCMA and the Labour Court do not have jurisdiction to determine should the employee allege that his or her dismissal was unfair. It has been argued that the instances where a termination of a contract of employment is terminated, but there is no dismissal should be scrutinised to avoid a situation where employees are deprived of protection afforded by the fundamental right not to be unfairly dismissed. There have been some instances where employment contracts contain clauses that provide for automatic termination of employment contracts. It has been held by the courts in various decisions that such clauses are against public policy and thus invalid. The Labour Court stated that a contractual device that renders the termination of a contract something other than a dismissal is exactly the exploitation the LRA prohibits. There are various court decisions providing guidelines of circumstances in which termination of employment may be regarded as not constituting dismissal. The main focus of the treatise is to discuss these instances and critically analyse the approach taken by forums like the CCMA, bargaining councils and the Labour Court in dealing with such instances.

APA, Harvard, Vancouver, ISO, and other styles

22

Sipuka, Sibongile. "Termination of the contract of employment not constituting dismissal." Thesis, Nelson Mandela Metropolitan University, 2015. http://hdl.handle.net/10948/d1021152.

Full text

Abstract:

Section 23 of the Constitution provides that everyone has a right to fair labour practice. The constitutional right to fair labour practices includes the right not to be unfairly dismissed and is given effect to by section 185 of the LRA. The constitutional right not to be unfairly dismissed is given effect to by Chapter VIII of the Labour Relations Act 66 of 1995 (the LRA), which provides a remedy for an unfair dismissal. Schedule 8 of the LRA contains a “Code of Good Practice: Dismissal”, which the Commission for Conciliation, Mediation and Arbitration (the CCMA) and the Labour Courts must take into account when determining the fairness of a dismissal. The LRA expressly recognises three grounds for termination of the employment contract namely; misconduct on the part of the employee, incapacity due to an employee’s poor work performance, ill health or injury and termination due an employer’s operational requirements. In terms of the LRA, a dismissal must be procedurally and substantively fair. The requirements for procedural and substantive fairness are contained in Schedule 8 of the Code of Good Practice: Dismissal. The provisions of section 185 of the LRA apply to all employers and employees in both the public and the private sectors, with the exception of members of the National Defence Force, the National Intelligence Agency, the South African Secret Service and the South African National Academy of Intelligence. Section 213 of the LRA defines an “employee” as any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration and any person who in any manner assists in carrying out or conducting the business of an employer. Section 200A of the LRA sets out the presumption as to who is an employee. This is a guideline to assist in determining who is an employee The Basic Conditions of Employment Act 75 of 1997 (the BCEA) sets minimum terms and conditions of employment including the notice of termination of employment. Under the common law an employment contract of employment can be terminated on either the expiration of the agreed period of employment or on completion of the specified task in cases of fixed-term contracts. Also, in terms of general contract principles an employment contract may be terminated by notice duly given by either party or by summary termination in the event of a material breach on the part of either party. The death of either party may terminate the employment contract. However, the death of an employer will not necessarily lead to the contract’s termination. An employment contract may also terminate by operation of law or effluxion of time namely retirement and coming into being of fixed-term contracts, by mutual agreement, employee resigning, due to insolvency of the employer and due to supervening impossibility of performance. In the circumstances indicated above, the termination of the contract of employment does not constitute dismissal. This means that the CCMA and the Labour Court do not have jurisdiction to determine should the employee allege that his or her dismissal was unfair. It has been argued that the instances where a termination of a contract of employment is terminated, but there is no dismissal should be scrutinised to avoid a situation where employees are deprived of protection afforded by the fundamental right not to be unfairly dismissed. There have been some instances where employment contracts contain clauses that provide for automatic termination of employment contracts. It has been held by the courts in various decisions that such clauses are against public policy and thus invalid. The Labour Court stated that a contractual device that renders the termination of a contract something other than a dismissal is exactly the exploitation the LRA prohibits There are various court decisions providing guidelines of circumstances in which termination of employment may be regarded as not constituting dismissal. The main focus of the treatise is to discuss these instances and critically analyse the approach taken by forums like the CCMA, bargaining councils and the Labour Court in dealing with such instances

APA, Harvard, Vancouver, ISO, and other styles

23

Ledwaba, Jack Malesela. "Comparative study of a dismissal on account of operational requirements between South Africa and German labour law." Thesis, University of Limpopo (Turfloop Campus), 2008. http://hdl.handle.net/10386/927.

Full text

APA, Harvard, Vancouver, ISO, and other styles

24

Qotoyi, Thanduxolo. "Dismissals within the context of collective bargaining." Thesis, Nelson Mandela Metropolitan University, 2009. http://hdl.handle.net/10948/1039.

Full text

Abstract:

Competitive forces in the market force employers to change the way they operate their businesses. The changes that employers have to make often demand an alteration of the employees’ terms and conditions of employment. By law employers are not permitted to unilaterally effect changes to the employee’s terms and conditions of employment. They have to obtain the consent of the affected employees. This is where collective bargaining fits in. The employer has to negotiate with the employees. One way in which through the process of collective bargaining an employer can exert pressure on the employees to accept the changes is to effect a lock-out. Under the Labour Relations Act 28 of 1956 within the context of a lock-out, an employer was permitted to use conditional dismissal as a bargaining weapon. This conditional dismissal had to be coupled with an offer of reemployment should the employees accept an employer’s demand. In essence, the lock-out had a bite in the form of the conditional dismissal. This made the lock-out quite effective. The 1995 Labour Relations Act prohibits in no uncertain terms the use of a dismissal as a means of compelling employees to accept an employer’s demand in any matter of mutual interest. Within the collective bargaining context, dismissal is not a legitimate option. The employer only has the lock-out as a tool of compulsion. The definition of a lock-out in terms of this Act does not accommodate the use of dismissal. This makes the lock-out option to be less potent than it was under the 1956 Labour Relations Act. However, employers are permitted to dismiss on operational grounds, provided that they follow a fair procedure. Terms and conditions of employment greatly feature in the operational requirements of a business. If the employees’ terms and conditions of employment are not responsive to the operational requirements of the business and they are unwilling to accept changes to those terms, the employer has the right to dismiss them. The employer will not be dismissing the employees as a way of inducing them to accept the changes. He will instead be dismissing them on the basis of operational requirements. iv The question that then arises is how should a dismissal that is intended to compel employees to accept an employers demand (falling within section 187(1)(c) of the 1995 Labour Relations Act be distinguished from a dismissal that is genuinely based on operational requirements as contemplated by section 188(1)(a)(ii). Doesn’t the fact that section 187(1)(c) explicitly prohibits the use of dismissal within the context of collective bargaining give rise to some tension with section 188(1)(a)(ii) which categorically gives employers the right to dismiss on operational grounds. The decision of the Labour Appeal Court in Fry’s Metals v NUMSA has stated that there is no tension whatsoever between the two sections. The court has also ruled that the dismissals that are hit by section 187(1)(c) are those dismissals that are accompanied by an offer of reemployment. According to the court, this offer is indicative of the real purpose of the employer, namely to compel employees to accept his demand. Dismissals not accompanied by an offer of re-employment are on the other hand a true reflection of the fact that the employer is indeed dismissing the employees for operational requirements. This literal interpretation of the meaning and scope of section 187(1)(c) has the potential of opening the floodgates. Instead of resorting to the use of the lock-out to secure the agreement of employees in the collective bargaining process, employers now have a potent tool in the form of a dismissal. As long as the employer makes it abundantly clear that the dismissal is final and irrevocable, he is free from the claws of section 187(1)(c). Given the fact that the lock-out option is not always effective, employers may find it hard to resist the temptation to use the threat of permanent dismissal as a bargaining chip. It is an option that is emasculated by the fact that in an employer initiated lock-out the use of replacement labour is prohibited. The threat of not just a conditional dismissal but a permanent one may force employees to capitulate to the employer’s demand during negotiations. This would effectively render negotiations about changes to terms and conditions of employment a farce. The employer would have an upper hand. The implications of this narrow interpretation are quite far-reaching. The long held view that dismissal is not a legitimate weapon of coercion in the collective bargaining process is under serious challenge. Only conditional dismissals are illegitimate in the collective bargaining v arena. Permanent dismissals are permitted. This negates the very purpose of the collective bargaining process. This study seeks to examine the anomalies that flow from this interpretation of the meaning of section 187(1)(c). The study further investigates if this interpretation is not at odds with what the legislation really intended to achieve by enacting this clause. The study also explores ways in which the sanctity of collective bargaining could be restored. Recommendations are made to that effect.

APA, Harvard, Vancouver, ISO, and other styles

25

Mpati, Lungisa. "Termination of employment contract by operation of law in the education sector: the constitutionality and validity of the deeming provisions." Thesis, Nelson Mandela Metropolitan University, 2012. http://hdl.handle.net/10948/1600.

Full text

Abstract:

Fundamental to any contract of employment is the obligation that rests on an employee not to be absent from work without justification. Under the common law, if an employee did that, the employer would be entitled to dismiss him or her on notice. The International Labour Organization Convention (ILO) 158 of 1982 provides that the employer must have a reason for a dismissal and sets out broad categories or reasons for dismissals . Section 23 of the Constitution of the Republic of South Africa, 1996(Act 108 of 1998) provides that “Everyone has the right to fair labour practices”. Section 33 of the Constitution provides that “Everyone has the right to administrative action that is lawful, reasonable and procedurally fair. The Promotion of Administrative Justice Act 3 of 2000 (PAJA) is designed to give effect to just administrative action. Section 1 and 3 of the Labour Relations Act,1995(Act 66 of 1995)(LRA) require compliance with Article 7 and 8 of the ILO Convention 158 of 1982, when the employment of a worker has been terminated by his or her employer. The LRA protects employees against unfair dismissal. In the Department of Education, Section 14(1)(a) of the Employment of Educators Act, 1998 provides for the discharge of an educator in the event that he or she absents himself or herself from work for a period exceeding 14 consecutive days without the permission of the employer. A similar provision, Section 17(5)(a)(i) of the Public Service Act, 1994 provides for the discharge of an officer other than an educator who absents himself or herself from his or her official duties without the permission of the Head of Department for a period exceeding one calendar month. Section 14(2) of the Employment of Educators Act, 1998 and 17(5)(b) of the Public Service Act,1994 afford an employee who has been deemed discharged to show good cause why he or she should be reinstated. Against this background, the critical legal question is the constitutionality of the deeming provisions. The study will examine the validity of these provisions in relation to the ILO Conventions, Constitution, LRA and PAJA.

APA, Harvard, Vancouver, ISO, and other styles

26

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.

Full text

Abstract:

Thesis (LLM. (Labour Law)) -- University of Limpopo, 2013
This 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.

APA, Harvard, Vancouver, ISO, and other styles

27

Nkgapele, Mmakgwana Freddy. "Dismissal for operational requerments : comparison between South Africa and English Labor Law." Thesis, University of Limpopo, 2010. http://hdl.handle.net/10386/3023.

Full text

APA, Harvard, Vancouver, ISO, and other styles

28

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.

Full text

Abstract:

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.

APA, Harvard, Vancouver, ISO, and other styles

29

Partington, Jonathan. "Re(viewing) the constitutional court's decision in Sidumo v Rustenburg Platinum Ltd." Thesis, Nelson Mandela Metropolitan University, 2009. http://hdl.handle.net/10948/1032.

Full text

Abstract:

In Sidumo v Rustenburg Platinum Ltd ((2007) 12 BLLR 1097 (CC); (2007) 28 ILJ 2405 (CC); 2008 (2) SA 24 (CC)) the Constitutional Court made two findings of immense significance for dismissed employees: firstly, the court rejected the use of the so-called “reasonable employer” test in our law, a test which traditionally required arbitrators and courts evaluating the fairness of a dismissal for proven misconduct to treat the employer’s decision on sanction with a measure of deference; and secondly, on scrutiny of the more controversial issue before the court, to wit, the basis, if any, upon which arbitrators are obliged to make reasonable decisions, the court (in confirming that arbitrators are so obliged) held that the obligation to do so suffuses section 145 of the LRA, and that the extended review grounds legislated under PAJA do not apply. In the present article these judicial conclusions are critically analysed and evaluated, and a number of submissions are made, inter alia: it is submitted that the Constitutional Court’s rejection of the “reasonable employer” test was premised on a fundamental misinterpretation of the test; that while the court’s attempt to locate the reasonableness standard within the LRA was perhaps justifiable, the court failed to consider properly, or at all, the wording of section 145 and its history, with the consequence that the court failed to appreciate that section 145 of the LRA (save on an unduly strained interpretation) could not conceivably be construed to cater, in itself and without more, for the constitutional right to lawful, reasonable and procedurally fair administrative action; and further, that the labour landscape post-Sidumo is, to an extent, unquestionably one bathed in greater uncertainty. In conclusion, the author poses the question whether, on a review of Sidumo, the Constitutional Court should not be considered to have fallen short of fulfilling its constitutional obligations under the rule of law.

APA, Harvard, Vancouver, ISO, and other styles

30

Pauw, Julius Bremer. "Statutory regulation of temporary employment services." Thesis, Nelson Mandela Metropolitan University, 2013. http://hdl.handle.net/10948/d1019715.

Full text

Abstract:

This treatise specifically explores section 198 of the Labour Relations Act, 66 of 1995, which regulate temporary employment service. However, before one can assess this section in particular, other legislation has to be considered dealing with temporary employment services, read in conjunction with the Constitution of the Republic of South Africa Act 108 of 1996 (hereinafter the “Constitution”), as all legislation is subject thereto. As summarised by Navsa AJ in the judgment of Sidumo& Another v Rustenburg Platinum Mines Ltd & Others: “The starting point is the Constitution. Section 23(1) of the Constitution of the Republic of South Africa, 1996 provides that everyone has the right to fair labour practices”. The Labour Relations Act, 66 of 1995 (hereinafter the “LRA”) is also subject to the Constitution, and section 198 has to be evaluated and assessed against the Constitution as is set out in section 1 of the LRA, which provides that: “The purpose of this Act is to advance economic development, social justice, labour peace and the democratisation of the workplace by fulfilling the primary objects of this Act, which are (a) to give effect to and regulate the fundamental rights conferred by section 27 of the Constitution...” The LRA was drafted while the Interim Constitution was in effect, this being the reason why section 1(a) refers to section 27 of the Constitution, the Interim Constitution, and not the final Constitution, which was enacted in 1996. The Honourable Justice Conradie held in NAPTOSA & others v Minister of Education, Western Cape & others [2001] 22 ILJ 889 (C): “that the effect of section 1(a) is to ensure that the LRA “[marries] the enforcement of fundamental rights with the effective resolution of labour dispute temporary employment service . . . If an employer adopts a labour practice which is thought to be unfair, an aggrieved employee would in the first instance be obliged to seek a remedy under the LRA. If he or she finds no remedy under that Act, the LRA might come under constitutional scrutiny for not giving adequate protection to a constitutional right. If a labour practice permitted by the LRA is not fair, a court might be persuaded to strike down the impugned provision. But it would, I think, need a good deal of persuasion”. The Constitution and the LRA lay the basis for temporary employment services in the South African law context, and are the primary laws dealing with this topic. Although the main focus of the treatise is section 198 of the LRA in dealing with temporary employment services, it is evident that secondary labour legislation also regulates temporary employment services. It is noteworthy that each piece of legislation has different requirements and/or essentials regulating temporary employment services, even though some of the legislation have very similar provisions. Secondly, each of the pieces of legislation also determines and attaches different meanings to who the real employer is. This is important so as to establish who, as between the temporary employment service and its client, may be held liable for obligations arising out of the employment relationship. A tripartite relationship is created by temporary employment service arrangements, in that there is the temporary employment services –client relationship, the temporary employment service’s employer - employee relationship and the client –employee relationship, each with its own rights, obligations, and requirements for termination. A further focus of the treatise is the problems experienced in the employment relationship between the temporary employment service and its employees and the termination of the relationship. The difficulties and potential unfairness arising from termination of the relationship between the temporary employment service and its employees have resulted in legislative developments and proposed amendments, most notably the repeal of section 198. These proposals are discussed herein, including the question of whether section 198 should be repealed, or whether temporary employment services should be more strenuously regulated in order to resolve the problems being experienced with the application of section 198 in its present form. It is proposed in conclusion that temporary employment services be more strenuously regulated, as the repeal of section 198 will not be socially and economically beneficial to the workforce of South Africa, nor the Labour Market. Further, it would be contrary to the Constitution and purpose of the Labour Relations Act.

APA, Harvard, Vancouver, ISO, and other styles

31

Tshiki, Pakamisa Washington. "The unfair labour practice relating to benefits." Thesis, Nelson Mandela Metropolitan University, 2005. http://hdl.handle.net/10948/386.

Full text

Abstract:

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.

APA, Harvard, Vancouver, ISO, and other styles

32

Mathekga, Mmanoko Jerry. "The political economy of labour market flexibility in South Africa." Thesis, Stellenbosch : University of Stellenbosch, 2009. http://hdl.handle.net/10019.1/1532.

Full text

Abstract:

Thesis (MPhil (Political Science))--University of Stellenbosch, 2009.
ENGLISH ABSTRACT: The impact of globalisation can be found in every aspect of human life. Globalisation has also brought about changes in the world of work, such as the call for labour market flexibility, which has restructured the workplace. This study focuses on the implications of labour market flexibility for workers in South Africa and for trade unions, within the context of the introduction of a macroeconomic neoliberal policy in South Africa in 1996. The study examines the changing nature of employment and work in a company in the South African retail sector, namely Pick n Pay. Labour market flexibility comes about as companies try to compete and cut costs at the expense of workers. This implies a reduction of protection and benefits and has resulted in the creation of a ‘working poor’ labour segment. Trade unions have been ineffective in providing a voice and representation for the new working poor. This study argues that under conditions of economic globalisation, trade unions are disempowered and flexible labour market practices are introduced to cut costs in order to maintain market share and increase competitiveness. Economic globalisation has pressurised the South African government, and the African National Congress (ANC), to shift gradually to the right and to adopt a neoliberal macroeconomic policy. This has led to an increase in inequality, unemployment, new forms of insecure jobs and the creation of an informal economy. This study found that instead of creating jobs and alleviating poverty, the government’s Growth, Employment and Redistribution Strategy (GEAR) has resulted in retrenchments, downsizing and restructuring. The unemployed, retrenched and working poor find themselves in the ‘second economy’. The retail sector in particular makes use of labour market flexibility in order to compete for market share. Pick n Pay is an example of a retail company that increasingly makes use of flexible labour market practices. This study found that labour market flexibility has created a situation that trade unions find difficult to deal with, and that labour market flexibility has been accompanied by increasing inequality, which overlaps with race and gender identities. Furthermore, Pick n Pay maintains flexible employment under conditions of increased productivity and contrary to labour legislation.
AFRIKAANSE OPSOMMING: Impak van globalisering kan in elke aspek van mense se lewens waargeneem word. Globalisering het verandering in die wêreld van werk teweeggebring, soos die aandrang op arbeidsmarkbuigsaamheid wat tot die herstrukturering van die werkersmag gelei het. Hierdie studie fokus op die implikasie van arbeidsmarkbuigsaamheid vir werkers in Suid‐ Afrika, en die implikasie vir vakbonde in die konteks van die inwerkingstelling van ’n makroekonomiese neo‐liberale beleid in Suid‐Afrika in 1996. Verder ondersoek die studie die verandering in die aard van indiensneming en werk in ’n Suid‐Afrikaanse maatskappy in die kleinhandelsektor, naamlik Pick n Pay. Buigsaamheid in die arbeidsmag ontstaan wanneer besighede in ’n poging om kompeterend te wees, uitgawes ten koste van werkers besnoei. Dit bring die vermindering van beskerming en voordele mee, wat tot ’n arbeidsegment van ‘arm werkers’ lei. Vakbonde kon nie ’n stem en verteenwoordiging aan hierdie nuwe segment van arm werkers gee nie. Hierdie studie voer aan dat ekonomiese globalisering werkersunies magteloos laat terwyl buigsame arbeidsmarkpraktyke aangewend word om kostes te sny ten einde markaandeel en verhoogde kompetisie te verseker. Ekonomiese globalisasie plaas meer druk op die Suid‐Afrikaanse regering, die African National Congress (ANC), om ‘n verskuiwing na regs te maak en ’n neo‐liberale makroekonomiese beleid te volg. Dit het gelei tot verhoging in ongelykheid, werkloosheid, nuwe vorme van onsekere werksgeleenthede, en die skepping van ’n informele ekonomie. Die studie bevind dat die regering se Groei, Indiensnemings‐ en Herdistribusiebeleid (GEAR), wat veronderstel was om werk te skep en werkloosheid te verminder, eerder tot meer afdankings, afskaling en herstrukturering gelei het. Die werklose, afgedankte en armwerkerskorps bevind hulself nou in ’n ‘tweede ekonomie’. In die besonder maak die kleinhandelsektor gebruik van arbeidsmarkbuigsaamheid om vir ’n deel van die mark te kompeteer. Pick n Pay is ’n voorbeeld van ’n kleinhandelmaatskappy wat toenemend gebruik maak van arbeidsmarkbuigsaamheid. Die studie kom tot die slotsom dat arbeidsmarkbuigsaamheid ’n situasie geskep het wat vakbonde verlam het, en wat met ’n verhoging in ongelykheid wat verder met ras en geslagsidentiteite oorvleuel, gepaardgaan. daarby maak Pick n Pay gebruik van buigsaame indiensnemingspraktyke onder omstandighede van verhoogde produktiwiteit, in weerwil van arbeidswetgewing

APA, Harvard, Vancouver, ISO, and other styles

33

Ebert, Paulo Roberto Lemgruber. "O conteúdo deontológico da liberdade sindical e a proteção contra os atos antissindicais e antirrepresentativos." Universidade de São Paulo, 2016. http://www.teses.usp.br/teses/disponiveis/2/2138/tde-22022017-142313/.

Full text

Abstract:

O direito fundamental à liberdade sindical, consagrado no ordenamento jurídico brasileiro não apenas na Constituição Federal, mas também nos mais importantes Pactos Internacionais de Direiros Humanos ratificados pelo Brasil, possui, a despeito de sua conceituação aberta e aparentemente imprecisa, um conteúdo histórico-institucional que pode ser objetivamente delineado e que, por tal razão, condiciona a atuação dos órgãos estatais e dos atores particulares nas situações concretas de aplicabilidade. Demonstrar-se-á, nesse sentido, que o conteúdo institucional da liberdade sindical foi talhado não só pelo contexto fático presente no momento histórico de seu surgimento, como também pelas vicissitudes ocorridas ao longo de seu desenvolvimento espaço-temporal, de modo a ensejar como consectário lógico, dentre os diversos aspectos individuais e coletivos a ele inerentes, a tutela dos trabalhadores e de suas entidades representativas contra as condutas antissindicais e antirrepresentativas praticadas pelos empregadores, pelo Estado e pelos próprios sindicatos. Para além disso, a tese buscará elencar, de modo objetivo, (i) os sujeitos titulares da proteção contra os atos antissindicais e antirrepresentativos subjacente ao conteúdo histórico-institucional do princípio da liberdade sindical, (ii) as circunstâncias sob as quais estes últimos encontram-se amparados, (iii) os parâmetros objetivos a serem observados pelo legislador ordinário, bem como pelo Poder Judiciário e pelo Poder Executivo quando da concretização, da aplicação e da regulamentação dos dispositivos do ordenamento jurídicos a consagrarem o direito fundamental à liberdade sindical e (iv) os mecanismos de tutela de que dispõem dos trabalhadores e de suas entidades em face daquelas práticas.Ao cabo de tal análise, ter-se-á o delineamento objetivo da tutela emanada do princípio da liberdade sindical consagrado no ordenamento jurídico pátrio em relação aos atos antissindicais e antirrepresentativos passíveis de serem praticados contra os trabalhadores e suas entidades e das diretrizes a vincularem os agentes públicos na implementação prática de tal tutela.
The freedom of trade unions association, as an human right recognized by the Brazilian law not only in the text of the Federal Constitution, but also in the most important International Human Rights Conventions signed by Brazil, own, despite its open and apparently imprecise definition, an historic content that can be defined in objective lines and which terms links the public authorities and the private actors to its lines in the concrete situations. The study intend to demonstrate, on that sense, that the institutional content owned by the freedom of trade unions association was defined not only in the historical moment when these right has arrived, but also in the situations occurred during its development as an institutional right. The evolution faced by the freedom of trade unions association lead us to understand the protection of the workers and its collective bodies from the acts against the labor organization (as known as unfair labor practices) promoted by the employers, by the public authorities or by the trade unions itself as a matter inherent to these institutional right. Moreover, the study will try to describe objectively (i) the subjects of the protection against those unfair labor practices, (ii) the circumstances under which these subjects are protected, (iii) the objective terms to be followed by the authorities of the Legislative, Judiciary and Executive in the task of giving practical sense to the freedom of trade unions association as an instrument of protection against the unfair labor practices and (iv) the protection mechanisms which the law offers to the workers and its bodies in order to protect them from those unfair practices.After all, it will be possible to describe the objective terms of the protection that the freedom of trade nunions association recognized by the Brazilian law as an autonomous institution give to workers and its organizations against those unfair labor practices.

APA, Harvard, Vancouver, ISO, and other styles

34

Yeh, Chiang-Ting, and 葉建廷. "A Study of Unfair Labor Practices." Thesis, 1997. http://ndltd.ncl.edu.tw/handle/22808277455135373687.

Full text

APA, Harvard, Vancouver, ISO, and other styles

35

Fa, Wu Yung, and 吳永發. "A study on the Unfair Labor Practices of Japan." Thesis, 1995. http://ndltd.ncl.edu.tw/handle/82295254677198121803.

Full text

APA, Harvard, Vancouver, ISO, and other styles

36

CHIANG, KUO-HAO, and 江國豪. "A Study on Judicial Review of Administrative Remedy on the Area Unfair Labor Practice─Contrast with the Japanese Intention of Unfair Labor Practices." Thesis, 2014. http://ndltd.ncl.edu.tw/handle/39qghb.

Full text

Abstract:

碩士
國立臺北大學
法律學系一般生組
102
There are many kinds of unfair labor practices which refer to certain actions taken by employers to dominate or interfere with the formation or administration of labor unions, including disadvantageous treatment, collective bargaining, yellow-dog contract, and so on. In Taiwan, Act for Settlement of Labor-Management Disputes has been activated on the 1st of May 2011, the drastic change of overall content, which led to an unfortunate result of everlasting labor disputes in multiple occasions. The Act for Settlement of Labor-Management Disputes took a reference from Alternative Dispute Resolution (ADR) of United States, updated with a chapter of ‘Decision’, expecting it could provide similar performance of recovering the right of those labors who fall victim rapidly. Yet, the regulation of Anti-ULP (Unfair Labor Practice) is set particularly aiming at capital, which shows well with a lack of integrity and fairness. Current level of administrative acts involve more extensively than before that handling cases are more likely to relate to reconciles of civil rights due to increasing of labor practices concerned. In addition, modern public affairs are more complicated that the scope of executive power enlarges intensively. It’s still questionable whether traditional judicial reviews toward administrative discretion are proper to deal with different situations caused by varied conditions and referred issues. Focusing on cases of Judicial Review of Administrative Remedy on the Area Unfair Labor Practice, this Article pays attention to the operation of method of proof, the explanation of application period, and the contents of order for relief. By observing judgments concerning personnel evaluation and disadvantageous treatment in Japan, this Article intends to review the relief procedures in Taiwan, and provides suggestion for administrative remedies through the Labor Commission in the future.

APA, Harvard, Vancouver, ISO, and other styles

37

Lin, Yu-Chieh, and 林裕杰. "Research on Remedies for Unfair Labor Practices in the United States." Thesis, 2012. http://ndltd.ncl.edu.tw/handle/97774358475954101005.

Full text

Abstract:

碩士
國立高雄大學
法律學系碩士班
100
The main purpose of dissertation is introducing Unfair Labor Practices in the United States and through discussion of specific issues in order to improve and advance the adjudication institution in Taiwan. There are six charts in this dissertation, which is divided into two core parts of research. The first part is introducing Unfair Labor Practices in the United States, which includes the background and purposes of the adjudication institution, the variety of Unfair Labor Practices, the application of statutes, the method of remedies and the criteria created by Supreme Court. Meanwhile the organization, operation and authority of NLRB will be introduced and described, also including causes and effects of quasi-judicial of NLRB. The second part is introduction of injunction, and focusing on the relationship between injunction and union activities. In short, in the past, the injunction was used to restraint union activities, but nowadays it has transformed into an important remedy for Unfair Labor Practice. This dissertation will introduce the injunction provisions in NLRA and attempt to find out the possibilities of application in Taiwan legal system. In the conclusion chart, I will compare and analyze the issues of relationship between quasi-judicial of NLRB, estoppel, the method of remedies and the approach of remedies. Besides, I will provide my own opinions for adjudication institution in Taiwan.

APA, Harvard, Vancouver, ISO, and other styles

38

Lu, Wen-Chi, and 呂文琪. "The Political Economy of Labor Dispute Settlements on Unfair Labor Practices in Taiwan, 2011-2012." Thesis, 2012. http://ndltd.ncl.edu.tw/handle/58067098762065176691.

Full text

Abstract:

碩士
國立臺灣大學
政治學研究所
100
Since the ‘New Labor Tri-Act’ has been activated on the 1st of May 2011, the drastic change of overall content, which led to an unfortunate result of everlasting labor disputes in multiple occasions. Both capital and labor should adjust the attitude and reform the methodology in order to face the newly established legal environment. The Act for Settlement of Labor-Management Disputes took a reference from Alternative Dispute Resolution (ADR) of United States, updated with a chapter of ‘Decision’, expecting it could provide similar performance of recovering the right of those labors who fall victim rapidly. Yet, the regulation of Anti-ULP (Unfair Labor Practice) is set particularly aiming at capital, which shows well with a lack of integrity and fairness. Though the ‘Decision mechanism’ has now run more than a year, it demonstrated only complexity and time-consuming on labor dispute and private/non-private divergence issues, which, comparing to the United States and Japan, contains lesser independency and questionable specified responsibility, and drove situation to further chaos. It has been proven, by researching case studies, closed Decisions benefit the side of labor in higher portion. In the dissertation, despite analyzing the design of ‘Decision mechanism’ to clarify problems on legal and execution phase, comparing with Decision mechanism operation and features of ULP from United States and Japan as study material, the following content as well conducted up-to-date closed Decision cases analysis, then discuss problematic of ‘Decision mechanism’ relative procedure and specific cases executed by the ‘Board for Decision’, according to analytical case studies. In general, the over extended and complex design of Decision procedure, and the yet to be confirmed Decision-derived effect have against the will of introducing and import the structure of ADR to the new Act. It should be the organization of Board for Decision, alongside with committee member qualification and election system that have disturbed the Act’s independency and responsibility-specification. Debate should it be appropriate executing the Decision as an order while the procedure of Decision comes across the private right. Discuss issue that before the responsibilities of members of Board has been clarified, should the Board able to produce conclusion of cases those have private right involved. And, under circumstance Board for Decision is not qualified with quasi-judicial power, does the review intensity powerful enough to protect the rights of people. Explore possibilities of connection and relation between Decision, including orders of certain actions to take and not to take, and labor policy. The thesis discusses formation and operation of ULP Decision, and evaluates the suitability of current decree content and its system by matching the equivalent in both United States and Japan. The end result is presumed to provide practical suggestion and support to the system for possible future adjustment.

APA, Harvard, Vancouver, ISO, and other styles

39

LIN, CHING-EN, and 林慶恩. "Unfair Labor Practices Adjudication Decisions in Taiwan-the Case of Banking Industrial." Thesis, 2019. http://ndltd.ncl.edu.tw/handle/sf9fpv.

Full text

Abstract:

碩士
中國文化大學
勞工關係學系
107
The core of this paper is to explore the situation of the operation of judicial remedy system of Unfair Labor Practice in the banking industry, so as to understand whether the labor relations in the industry and the judicial system needs to be improved. The content of this paper can be divided into two parts: first is to introduce the concept of judicial remedy of unfair labor practice system and its current development in Taiwan; second is to organize the improper labor behavior cases and judgments of banks in Taiwan. Through a literature analysis, the development history, this paper will deal with the current situation and types of unfair labor practice, the implementation judicial system of the unfair labor practice, and the related cases of unfair labor practice in banking industry, etc. The statistical information announced by the government will be referred as the basis for the research and discussion. Both literature and statistical analysis will be done in order to understand the development and the current situation of the judicial remedy system of unfair labor practice. The three basic labor rights, namely the right to organize and join labor unions, the right to bargain collectively, and the right to dispute. The purpose to rule the basic labor rights is to improve the standard of working conditions and to enhance labors’ social and economic status. The "rights to organize and join labor unions " in labor rights is the most important and basic one. The main reason to create the judicial remedy system of unfair labor practice, is to realize the right to organize, to protect the autonomy a union, and to exclude the interference or nuisance from employers rather than merely enacting the immunity of labors. The application of the judicial remedy system of unfair labor practice in Taiwan covers the unfair labor practices of employers and unions, which are stipulated in Article 39 and Article 51, Section 1 of the Labor Dispute Resolution Law, while the definition and rules of unfair labor practice are set out in Article 35 of the Labor Union Law and Article 6, Section 1 of the Collective Agreement Act. This paper will list some relevant cases regarding the decisions of The Board for Decision on the Unfair Labor Practices and the court's opinion. Cases dealt in this paper will include disadvantageous treatment, dominance intervention and rejection of collective bargaining. At the end of the study, specific recommendations are made for the results summarized, and the benefits of the relevant labor relations and to reduce the misconduct in Taiwan are expected.

APA, Harvard, Vancouver, ISO, and other styles

40

Dimpe, Phomolo Sylvia. "Unfair labour practice in an institution of higher learning / Phomolo Sylvia Dimpe." Thesis, 2005. http://hdl.handle.net/10394/11420.

Full text

Abstract:

This dissertation serves to investigate the existence of unfair labour practices (ULPs) in one institution of higher learning called X University, for reasons of confidentiality. The problem of this research is that there is existence of unfair labour practice in the X University. The above problem gave rise to different sub-problems and the research hypothesis. Literature review of this study surveyed different theories of labour relations. The theories reviewed include issues such as fair and unfair discrimination, the Labour Relations Act, discipline, Occupational Health and Safety and the role of the Labour Unions. Research methodology of this dissertation is quantitative. Qualitative methods used was not dominant. There was a use of percentages and frequencies for computing data. Data collection was in the form of questionnaires administered to 100 subjects. Preferred way of dealing with the subjects was through purposive sampling. The sample of this research is 100. It is through data that research subjects indicated that there is prevalence of ULPs in the X University. Sensitivity is exercised here, not to attribute the research findings to other organisations. The campus chosen has its own realities. This dissertation based its recommendations on the findings. The study mainly recommended that ULPs could be minimised by adopting policy relating to labour practices of the university.
M.Admin. (Industrial Relations) North-West University, Mafikeng Campus, 2005

APA, Harvard, Vancouver, ISO, and other styles

41

Nthelebovu, Masebole Paul. "Employee response to unfair discrimination by immediate supervisors / Masebole Paul Nthelebovu." Thesis, 2011. http://hdl.handle.net/10394/15720.

Full text

Abstract:

The relationship between an immediate supervisor and an employee is of critical importance in employment relations. This relationship should be founded on trust in order to ensure job satisfaction and productivity. Unfair discrimination is prohibited in South African organisations, and is therefore legally and socially unacceptable. Unfair discrimination by immediate supervisors could lead to lower levels of job satisfaction and other negative forms of work behaviour. Employees who are exposed to unfair discrimination can respond in a number of formal and informal ways. South African labour laws allow for a number of informal and formal procedures for dispute resolution in the workplace, including unfair discrimination disputes. This study investigated white collar employee intended response to unfair discrimination by immediate supervisors. It was found that they will generally resolve such problems through direct communication with supervisors, before invoking more formal procedures. There were no significant differences in intended response of employees from different gender and age groups, but significant differences in the intensity of intended responses of people from different race groups were found.
Thesis (MBA) North-West University, Mafikeng Campus, 2011

APA, Harvard, Vancouver, ISO, and other styles

42

Itzkin, Riaz. "Operational requirements as a fair reason for dismissal in South Africa." Thesis, 2012. http://hdl.handle.net/10210/5253.

Full text

Abstract:

LL.M
The 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.

APA, Harvard, Vancouver, ISO, and other styles

43

Liu, Shu-Ting, and 劉舒婷. "Unfair labor practices arising from duty to bargain in good faith - a comparison between the United States and Taiwan." Thesis, 2018. http://ndltd.ncl.edu.tw/handle/c4324s.

Full text

APA, Harvard, Vancouver, ISO, and other styles

44

Van, Zyl Phillipus Edmond. "Die beregting van 'n onbillike arbeidspraktyk in die nywerheidshof." Thesis, 2015. http://hdl.handle.net/10210/14151.

Full text

APA, Harvard, Vancouver, ISO, and other styles

45

Lebepe, Nthuse Norman. "Inherent requirements of the job as a defence to a claim of unfair discrimination : a comparison between South Africa and United States of America." Thesis, 2010. http://hdl.handle.net/10386/487.

Full text

APA, Harvard, Vancouver, ISO, and other styles

46

Bosiane, Josephine. "Employee response to untrustworthy behavior by immediate supervisors / Josephine Bosiame." Thesis, 2011. http://hdl.handle.net/10394/14791.

Full text

Abstract:

Trust is one of the interconnecting links that nurture ongoing interactions between individuals. Trust is the crucial component of organisational effectiveness and is also viewed as an elementary aspect on developing communication relationships and satisfaction in the workplace. The purpose of this study was to investigate the differences in employee intended response towards untrustworthy behaviour by immediate supervisors. Untrustworthy behaviour by immediate supervisor results in confusion, worry, and fear, which at the end slows the wheels of progress and profit. A major finding in this study indicates that employees can intend to respond to untrustworthy behaviour by immediate supervisor in a number of ways, which might be formal as well as informal. A group of South African white collar employees intended to respond to untrustworthy behavior, through direct communication with supervisors, before invoking more formal procedures. These employees intend to respond stronger by declaring a CCMA dispute when faced with untrustworthy behaviour. There were no significant differences in intended response of employees from different gender and age groups. There are significant differences in the intensity of response of African and white employees. African employees intend to respond stronger to untrustworthy behavior by immediate supervisor than white employees.
Thesis (MBA) North-West University, Mafikeng Campus, 2011

APA, Harvard, Vancouver, ISO, and other styles

47

Kumwenda, Joshua. "Can a defective hearing be cured by a subsequent appeal? : an examination of fair procedure in employer's disciplinary inquiry." Thesis, 2012. http://hdl.handle.net/10386/1028.

Full text

APA, Harvard, Vancouver, ISO, and other styles

48

Ramafalo, Mahodiela Rodney. "Dismissals based on operational requirements in the workplace." Thesis, 2013. http://hdl.handle.net/10386/960.

Full text

Abstract:

Thesis (LLM. (Labour Law)) -- University of Limpopo, 2013
The coming into power of the democratic government played an important role in transforming South African labour law system. After the Labour Relations Act 66 of 1995 (LRA) was implemented on 11 November 1996, the old Labour Relations Act of 1956 was repealed. The law on retrenchment forms an integral part of law of dismissals. The South African labour market has in the past years been characterized by restructuring and consequently retrenchment of employees. In most cases, employer’s decisions to retrench were challenged by the employees and unions in courts. Section 189 of the LRA stipulates procedures to be followed by an employer when contemplating dismissal of one or more employees for reasons based on operational requirements. The employer does not only have to follow the procedures set out in section 189 to render dismissals for operational reasons fair, but there must also be a valid reason to dismiss. The courts have always not been willing to second-guess the employer’s decision to retrench provided that the decision is made in good faith.

APA, Harvard, Vancouver, ISO, and other styles

49

Raligilia, K. H. "Current issues concerning the duty of mutual trust and confidence in South African Labour Law." Thesis, 2012. http://hdl.handle.net/10386/731.

Full text

Abstract:

Thesis (LLM. (Labour Law)) -- University of Limpopo, 2012
In Joseph v University of Limpopo & Others (JA14/09) [2011] ZALC 8 (13 May 2011) the Labour Appeal Court affirmed that there was unfairness in the process adopted by the employer in failing to renew the employee’s fixed term contract. This research paper examines the Labour Appeal Court’s reasoning in this case, with particular focus on the development of an implied term that each party to an employment contract owes the other a mutual duty of trust and confidence, and general reasonable behaviour. This paper further argues that mutual trust and confidence in the employment context protects the legitimate expectations of employees by serving as a bulwark against illegitimate conduct or acts of on the part of the employer designed or likely calculated to destroy the employer-employee relationship, thereby ensuring fuller protection of an employee’s constitutional rights. Joseph v University of Limpopo & others is of great significance. It indicates that the employer’s ability to rely successfully upon its prerogative not to renew fixed term contract where an employee has legitimate expectation of renewal may be contingent on its having acted in a manner consonant with mutual trust and confidence.

APA, Harvard, Vancouver, ISO, and other styles

50

Risinamhodzi, Rosemary. "Dismissal for exercising statutory rights." Thesis, 2012. http://hdl.handle.net/10386/793.

Full text

Abstract:

Thesis (LLM. (Labour Law)) -- University of Limpopo, 2012
Since 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.

APA, Harvard, Vancouver, ISO, and other styles

Dissertations / Theses on the topic 'Unfair labor practices'

Create a spot-on reference in APA, MLA, Chicago, Harvard, and other styles