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1
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.
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Diedericks, Shaun Sylvester. "Aspects of constructive dismissal." Thesis, Nelson Mandela Metropolitan University, 2013. http://hdl.handle.net/10948/d1011641.
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Before the introduction of the concept of constructive dismissal in the LRA, the old industrial courts relied on the strides made in this field by the English and American courts. Constructive dismissal is the fourth type of dismissal and it is instituted by the employee through his/her resignation, unlike the other three types of dismissals which is instituted by the employer. Section 186(e) of the LRA defines constructive dismissal as the termination a contract of employment with or without notice by the employee because the employer made continued employment intolerable for the employee. With a fundamental breach in the contract of employment employees have a choice to either base their claims on constructive dismissal in the LRA or repudiation of the contract in common law, depending on the circumstances. Landmark judgments like Jooste v Transnet and Pretoria Society for the Care of the Retarded v Loots set the tone for constructive dismissal law in South Africa. It introduced the concept of intolerability as well as looking at the employer‟s conduct as a whole and judging it reasonable. The test for constructive dismissal throughout the evolution of case law in South Africa has not changed. Constructive Dismissal under the common law is also discussed in depth by looking at the landmark judgment of Murray v Minister of Defence. Sexual Harassment in the workplace is of a growing concern. If continued sexual harassment makes continued employment intolerable, the employee subjected to the harassment has the option of resigning and approaching the CCMA or bargaining councils, and claim that they have been constructively dismissed. Cases such as Payten v Premier Chemicals and Gerber v Algorax (Pty) Ltd really shows us how difficult it is to proof constructive dismissal as a result of sexual harassment because in most instances there won‟t be witnesses and it would be a case of he said, she said. These cases also show us that it can be proven based on a balance of probabilities. Grogan states that in dismissal proceedings, the onus is on the employees to prove that they were in fact dismissed and on the employer to show that the dismissal was fair. Section 192 of the LRA places another burden on the employee that requires him to not only prove the existence of a dismissal, but also that the conduct of the employer was intolerable. Unlike normal dismissal cases, commissioners generally award compensation as a remedy for constructive dismissal. A claim by an employee for reinstatement would be contradicting a claim that the employment relationship became intolerable and an award for reinstatement would be very inappropriate in a case of constructive dismissal. In short, unlike a normal dismissal, a constructive dismissal is a termination of the employment contract by the employee rather than the employer‟s own immediate act.
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Monama, Bonga Justice. "Dismissal for stock loss." Thesis, University of Limpopo, Turfloop Campus, 2013. http://hdl.handle.net/10386/1111.
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Van, der Walt Natasha. "Dismissal due to excessive ill health absenteeism." Thesis, Nelson Mandela Metropolitan University, 2010. http://hdl.handle.net/10948/1286.
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In a globally competitive market place companies strive to become as efficient as possible. Absenteeism is a worldwide problem as it impacts on company efficiency and cost effectiveness. A large portion of absenteeism can be attributed to ill health absences. Companies have prioritized the need to find ways of managing and reducing absenteeism. In South Africa such processes have to occur within the confines of a constitutional right to fair labour practices and other prescriptive labour legislation. The issue is somewhat complicated by the fact that employees have a right to paid time off due to illness. It is thus clear that not all ill health absenteeism can be deemed problematic. A balancing act needs to occur between the operational needs of the employer and the rights of employees. Ill health absenteeism becomes problematic once a threshold is reached at which point it becomes intolerable for the employer, thus deemed excessive. Excessive ill health absenteeism is not a difficult concept to understand, however it is not specifically defined. A universal concept of when absence is deemed to have reached the threshold of excessiveness does not exist and varies from one employer to the next. Excessive ill health absence is a multi-facetted concept (as a result of the various types of ill health absence) and thus a universal process cannot be adopted to deal with all types of excessive ill health absenteeism. In an attempt to deal with the different types of ill health absenteeism it is pertinent to categorize the issues. The author suggests various ways of dealing with ill health absenteeism, depending on the facts of each case. A misconduct process should only be applicable in instances where it can be proved that sick leave is used inappropriately or the reason for absence is unknown. Although case law suggests the prevalence of dealing with ill health absence as misconduct, especially in the case of persistent short term absence, these cases rarely prove that abuse is taking place. Suspicions regarding abuse without proper evidence to support such claims will not satisfy the substantive fairness requirements. In the event that illness is of a medium to long term nature, an ill health incapacity process may be the most appropriate process to apply, as in such instances a clearly distinguishable illness exists, which makes accommodation less problematic. Such a process is less suited to persistent short term absence as this can be the result of many illnesses or injuries. In the case of persistent short term absence, the individual may be fully capable of performing their duties upon returning to work, however their frequent absence causes unreliability and inefficiency. It is clear in this instance that accommodation cannot take place due to the unpredictable nature of the absences. The concern with persistent short term absence is less with the illness or illnesses displayed and more with the absences itself. The author suggests that it may be appropriate to deal with such absences on the basis of incapacity due to poor work performance. This assertion is based on the fact that the concern is with frequent short term absence that causes the employee to be unreliable; however the illnesses are not of such a nature that it can warrant accommodation. If it is accepted that the employee is not malingering or if the malingering cannot be proved the employee has failed to meet a performance standard (attendance standard). It is suggested that as part of any incapacity investigation consideration should be given to whether the illness or injury can be deemed a disability. This is necessary as disabled individuals are afforded special protection and treatment. A dismissal of an incapacitated individual that is actually deemed “disabled” could be held to be automatically unfair and therefore it is pertinent that this is established at the outset.
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Boy, Anthony Albert. "Dismissal for medical incapacity." Thesis, Nelson Mandela Metropolitan University, 2004. http://hdl.handle.net/10948/d1016262.
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Labour law in South Africa has evolved over the past century at an ever increasing pace. The establishment of a democratic government in 1995 has been the trigger for a large number of labour law statutes being promulgated, particularly with reference to the laws governing the employment relationship and dismissal. From very humble and employer biased dispute resolution application under the common law of contract, labour law in this country has evolved through the various acts culminating in a labour law system which is highly regulated and codified. Dismissal for medical incapacity in this treatise is reviewed with regard to the applicable statutes and the various codes of good practice as the law has evolved and developed from the period covered by the common law through that covered by the 1995 LRA up to and including the current period. Particular attention is paid to both substantive and procedural requirements as well as the remedies applicable under the different legal regimes and the pertinent tribunals and courts. Regard is also given to the duration and causes of incapacity and the effect this may have on the applicable remedy applied by these tribunals. It will become apparant that the medically incapacitated employee occupied a relatively weak and vulnerable position under the common law as opposed to the current position under the 1995 LRA. The influence of the remedies applied by the tribunals under the 1956 LRA are clearly evident in the current regulations and codes under the 1995 LRA which contain specific statutory provisions for employees not to be unfairly dismissed. Distinctions are drawn between permissible and impermissible dismissals, with medical incapacity falling under the former. Furthermore, a distinction is drawn statutorily between permanent and temporary illhealth/injury incapacity with detailed guidelines for substantive and procedural fairness requirements to be met by employers. The powers of the specialist tribunals (CCMA, Bargaining Councils and Labour Courts) are regulated by statutory provisions and deal with appropriate remedies (reinstatement and/or compensation) a wardable in appropriate circumstances. Certain specific areas nonetheless still remain problematic for these tribunals and hence questions that require clear direction from the drafters of our law are: How to distinguish misconduct in alcohol and drug abuse cases? What degree of intermittent absenteeism is required before dismissal would be warranted? In certain other areas the tribunals have been fairly consistent and prescriptive in their approach and remedies awarded. Included here would be permanent incapacity, HIV cases and misconduct. It will emerge, however, that under the 1995 LRA the position of employees and the protections afforded them have been greatly increased.
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Thompson, David Martin Ogilvie. "Unfair discrimination and dismissal based on age." Thesis, Nelson Mandela Metropolitan University, 2010. http://hdl.handle.net/10948/1287.
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Section 187(2)(b) of the Labour Relations Act sets out certain justifications for what may seem to be unfair discrimination in the workplace. The purpose of this note is to discuss the provisions of Age Discrimination, with specific focus on the rights of older employees, who have reached, what some might term, the ‘normal or agreed retirement age’. In the discuss which follows reference will be made to the Constitution of the Republic of South Africa1 in order to investigate the provisions of our new democratic era, and what is said therein about discrimination, and age discrimination in particular. In our new Constitutional dispensation there have also been circumstances where certain kinds of discrimination have become accepted on society, for example Affirmative Action, and an enquiry into the difference between discrimination and differentiation will therefore also be necessary. The provisions of the Employment Equity Act,2 which deal specifically with eliminating unfair discrimination in the workplace, and the Labour Relations Act,3 which deals primarily with the rights of employees, employers and trade unions, and seeks to harmonize employer-employee relations will be discussed wherein specific reference will be made to section 187(2)(b) of the LRA. A further discussion will outline the circumstances of what is meant by dismissal in the context of age based dismissals, and whether such a dismissal is infact a dismissal and whether, within the requirements of the LRA such a dismissal, or termination of employment contract, is infact fair. Furthermore, a comparative perspective of other jurisdictions will give a more complete understanding of the issue of age-based dismissals within the current context. However, to refer to legislation and foreign decisions alone, while being of important reference, is not enough and a enquiry into our own case law will be of significant importance to determine a path of direction one can expect when faced with a question of dismissals based on mandatory retirement ages, and in particular, a dismissal which has been so executed with recourse to section 187(2)(b) of the LRA. In the various cases the reasoning and rationale behind the decision making will shed light on a seemingly unresolved area of labour law, and in reading further not only in the judgments but also in various articles, one will see that there are many arguments for and against the use of a mandatory retirement age, the most important of which will be highlighted.
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Cokile, Siyabonga. "The remedies for unfair dismissal." Thesis, Nelson Mandela Metropolitan University, 2009. http://hdl.handle.net/10948/1033.
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In terms of section 193 of the Labour Relations Act 66 of 1995, there are basically three remedies for unfair dismissal and unfair labour practice, namely reinstatement, re-employment and compensation. In disputes of unfair labour practice an arbitrator may determine a dispute on terms that the arbitrator deems reasonable, including the abovementioned three remedies. For example, in an unfair labour practice dispute relating to promotion or appointment, an arbitrator may order that the process of appointment be started afresh, if is found that the process was flawed. The right to fair labour practice is a right that is enjoyed by everyone and it is a right upon which every employee enjoys not to be unfairly dismissed is entrenched in section 23 of the Bill of Rights. The rights of every employee contained in the Labour Relations Act give content and effect to the right to fair labour practice contained in section 23 of the Bill of Rights. Every trade union, employer’s organisation and employer has a right to engage in collective bargaining, which includes but not limited to the formulation of disciplinary policies in the workplace, which should be observed by every employee. Our constitution mandates the Legislature to enact legislation that regulates collective bargaining. One of the purpose of our Labour Relations Act is to promote collective bargaining and the effective resolution of labour disputes. The remedies for unfair dismissal and unfair labour practice therefore give content and effect to the purpose of the Act, which is to promote effective resolution of labour disputes. The Legislature has given a legislative and policy framework, in terms of which the labour disputes may be resolved. In order to restrict the powers of the arbitrators and courts, section 193 of the Act provides that in ordering the reinstatement and re-employment of dismissed employee, they must exercise a discretion to order reinstatement re-employment, not earlier than the date of dismissal. The remedy of compensation is an alternative remedy, which must be ordered if the circumstances set out in section 193(2)(a) to (d) are applicable. Some arbitrators have made a mistake of treating this remedy as part of the primary remedies. However, our courts have clarified the intention of the Legislature in crafting the remedies for unfair dismissal.
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Van, Loggerenberg Johannes Jurgens. "Constructive dismissal in labour law." Thesis, University of Port Elizabeth, 2003. http://hdl.handle.net/10948/301.
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The history of constructive dismissals in South Africa imitated from the English law in 1986, when an employee successfully challenged the employer on this particular concept after an incident relating a forced resignation. From the literature it is clear that constructive dismissal, as we know it today, originated from our English counterparts. Being a relatively new concept, the South African labour laws caught on at a rapid pace. The leading case on which the South African authors leaned towards was the English case of Woods v WM Car Services (Peterborough). In South Africa constructive dismissals were given statutory force in unfair dismissal law and is defined as the coerced or forced termination of a contract of employment resultant in from the conduct of the employer. There are many forms in which constructive dismissals would postulate that could justify an employee to lay claim to constructive dismissal. Examples thereof are the amendment of the contract of employment, rude language and sexual harassment. It is eminent that certain elements should be present before an employee would have reasonable prospects of succeeding with such a claim. Constructive dismissal comes into the equation when an employer behaves in such a manner that eventually and ultimately leads to the employee, being the receiving party, in the employment relationship, to terminate the employment contract. This termination must be the direct result of the conduct of the employer that irreparably frustrated the relationship and made it impossible for the employee to remain in the service of the employer in question. It appears that the courts have taken a firm stance on coerced or forced resignation, in its various forms tantamount to breach of contact, that any sufficiently unreasonable conduct by an employer may justify that the employee to terminate services and lay claim to the fact that he had been constructively dismissed. It needs to be mentioned that the fact that the mere fact that the employer acted in an unreasonable manner would not suffice and it is up to the employee to prove how the conduct of the employer justified the employee to leave and claim that the employer’s conduct resulted in a material or fundamental beach of the employment contract. In dealing with the contingency of the concept of constructive dismissals it has been expressly provided for in numerous systems of labour law. As is seen herein, a constructive dismissal consists in the termination of the employment contract by reason of the employee’s rather than the employer’s own immediate act. The act of the employee is precipitated by earlier conduct on the part of the employer, which conduct may or may not be justified. Various authors and academics endeavoured to defined constructive dismissal and all had the same or at least some of the elements present, to justify constructive dismissal. The most glaring element being the termination of employment as a result of the any conduct that is tantamount to a breach going to the root of the relationship by the employer, that frustrated the relationship between the employer and the employee and rendered it irreparable. The employee resigns or repudiates the employment contract as a result of the employer normally not leaving the employee any other option but to resign. This can also be termed as coerced or forced resignations and are commonly better known as “constructive dismissal”. The employee is deemed to have been dismissed, even though it is the employee who terminated the employment contract. The most important element to mention is the employee terminated the employment contract, ie resigned yet this is regarded as a dismissal, it is however for the employee to first lay a claim at the proper authority and the employee must prove his / her allegation before it can be a constructive dismissal. As will become clear, that the onus of proof is on the employee to show that the termination of employment resulted from the conduct of the employer. Equally true as in all cases of constructive dismissal, including cases of sexual harassment, being a ground for constructive dismissal, the employee must prove that to remain in service would have been unbearable and intolerable. Sexual harassment is one of the most difficult forms of constructive dismissals, in many cases there are no witnesses and the employee either “suffers in silence or opt to place her dignity at stake to prove her case. It seems as though the test is to determine if the employer’s conduct evinced a deliberate and oppressive intention to have the employment terminated and left the employee with only one option that of resignation to protect her interests. Employees have a right to seek statutory relief and needs to be protected. If a coerced or forced resignation had taken place irrespective whether the employee resigned or not. It is against this back drop that constructive dismissals was given legality and are now recognized as one of the four forms of dismissals in terms of the Act.
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Toba, Wilson. "Substantive fairness of dismissal for misconduct." Thesis, University of Port Elizabeth, 2004. http://hdl.handle.net/10948/355.
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In the employment context employers may view certain conduct/behaviour committed by an employee or a group of employees to be repugnant and unacceptable resulting in the disciplinary action that may lead to a dismissal sanction taken against such employee or employees. Even though the employer has a right to discipline the employees for a contravention of a rule or a policy and even dismiss the employee/s involved, such a disciplinary action and dismissal must be based on a certain procedure where the principle of fairness must be adhered to. The Labour Relations Act 66 of 1995 (“the Act”) and Schedule 8 of the Code of Good Practice deals with the aspects of dismissals related to conduct and capacity, however, each case is unique, it has to be approached on its own merits. Schedule 8(3) states that, “formal procedures in disciplinary measures do not have to be invoked every time a rule is broken or a standard is not met”. It is therefore necessary that there should be a disciplinary code which guides the workers and the employers, it must be clear and be understood by all the parties. The disciplinary code of conduct serves as the foundation of good discipline because everybody knows the consequences of his/her contravention of those guidelines enumerated in the Code of Conduct. The Code of Good Practice under Schedule 8(3), states that “while employees should be protected from arbitrary action, employers are entitled to satisfactory conduct and work performance from their employees”, so a very good relationship between the two parties is most important if there is to be stability and industrial peace in the workplace.
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Myeki, Mfundo. "Dismissal law in the education sector." Thesis, Nelson Mandela Metropolitan University, 2011. http://hdl.handle.net/10948/1567.
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This treatise will therefore critically discuss fairness requirements in dismissal law within the context of the education sector from: i) the perspective of a dismissed employee; and ii) the perspective of an employer who wishes to dismiss employees fairly; and iii) the perspective of a deemed dismissal. It will be proper to flow this discussion from the premises of what should be considered procedural and substantive fairness in dismissals.
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Vickers, L. "Whistleblowing at work : the legal implications for employees of making disclosures of confidential information." Thesis, Oxford Brookes University, 1996. http://radar.brookes.ac.uk/radar/items/ec100d8a-65ad-1f5d-b6ef-15393b0d3289/1.
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The thesis examines the nature and extent of protection available to "whistleblowers", employees who disclose to outside bodies wrongdoing or malpractice at work. It begins with a consideration of the philosophical basis for providing protection for such employees. The legal rights of the whistleblowing employee in English law are then considered. In chapter three case law on the duty of confidence is examined and conclusions drawn on its application to employees dismissed for blowing the whistle, with particular reference to whether disclosure of information involves a breach of the employment contract. The general law on unfair dismissal is examined in chapter four to determine the extent to which an employee can claim that a dismissal for raising a concern is unfair. Protection for whistleblowing on specific issues such as race or sex discrimination, and health and safety issues is considered in chapter five. International standards governing the protection of the right to freedom of expression, in particular Article 10 of the European Convention on Human Rights, are examined in chapter six. Chapter seven comprises a comparative study of the protection available to employees who blow the whistle in the USA, where protection exists for whistleblowers both at a constitutional level and in specific legislation. A case study is included in chapter eight in which the position of employees in the National Health Service is examined in detail, with regard to their contractual position and the practical difficulties faced by those who wish to raise concerns about matters at work. A fundamental distinction drawn throughout the thesis is between two types of whistleblowing: "watchdog" whistleblowing, referring the raising of concerns about immediate threats to health and safety or of serious financial loss; and "protest" whistleblowing, referring to the participation of employees in debate on matters that are in the public interest, using specialist informztion gained from their employment. The recognition of these two forms of whistleblowing aids the analysis of the limitations of the legal protection as well as proving useful in the determining the scope of proposed reform. The argument is made that the protection currently available is inadequate and the thesis ends with proposals for legal reform.
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North, Charles Mark. "The effects on contracting behavior of varying remedies for misrepresentations in applications and for wrongful dismissal /." Digital version accessible at:, 1999. http://wwwlib.umi.com/cr/utexas/main.
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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.
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Dayimani, Vuyisile. "The determination of compensation in unfair dismissal cases." Thesis, Nelson Mandela Metropolitan University, 2014. http://hdl.handle.net/10948/d1020775.
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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.
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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.
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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.
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Hutchinson, Joe Carruth. "An examination of individual level effects of downsizing in a foodservice organization." Diss., Virginia Tech, 1994. http://hdl.handle.net/10919/40055.
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This research examined the effect of downsizing on the stress-related perceptions and work-related attitudes and behaviors of employees of a school food service organization. A major purpose of this study was to investigate individual level responses according to the severity of the downsizing. The research also examined the relationships between employees' stress-related perceptions and their work-related attitudes and behaviors, and the moderating effect of demographic factors on these relationships.
Data for this research was collected from 527 cafeteria employees from 87 campuses of the focal organization. The results indicated that downsizing severity, expressed as the percentage of school cafeteria labor hour reductions during the past year, had little impact on employees' subjective interpretations or their attitudinal and behavioral responses. There was also a significant and positive relationship between downsizing severity and the campus-level productivity, as measured by the increase in meals served per labor hour.
The results indicated no significant relationships between perceived job insecurity and employee attitudinal and behavioral reactions. However, significant and positive relationships were reported between employee role stress, as measured through role conflict and role ambiguity, and their work-related attitudes and behaviors. The correlations between perceived job insecurity and selected demographic variables were found to be either insignificant or contrary to predictions.Ph. D.
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Hlekani, Mphakamisi Witness. "Termination of the employment contract due to ill-health in the public education sector." Thesis, Nelson Mandela Metropolitan University, 2014. http://hdl.handle.net/10948/d1020969.
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The subject of the present treatise concerns termination of employment contracts that are effected as a result of an employee’s incapacity on the grounds of ill-health or injury. Every employee has the right not to be dismissed unfairly. The Labour Relations Act, 1995 recognises three grounds on which termination of employment might be legitimate. These include the conduct of the employee, the capacity of the employee and the operational requirements of the employer’s business. However, fundamental to any contract of employment is the obligation that rests on an employee not to be absent from work without justification. The Incapacity Code and Procedure in respect of Ill-health or Injury applicable to Educators is contained in Schedule 1 to the Employment of Educators Act, 1998. In addition there are collective agreements which are the products of collective bargaining that are also applicable to all categories of employees employed in the public education sector. Notably, PSCBC Resolution 7 of 2000 forms part of the subject of our discussion. The Department of Education determined the use of independent Health-risk Managers to provide advice on the management of incapacity leave and ill-health retirement, thereby ensuring objective and impartial evaluation which are largely acceptable to employees and their labour representatives. This is the Policy and Procedure on Incapacity Leave and Ill-Health Retirement in the Public Service. The appointed Health-risk Managers make recommendations to the Head of Department who thereafter implement the recommendations and deal with issues of a case to absolute finality. More importantly, the Policy and Procedure for incapacity leave and ill-health retirement in the Public Service is issued in terms of legislation, that is, section 3(3) of the Public Service Act, 1994 and therefore is not a collective agreement. Under the circumstances, it is not always easy to determine a real dispute and an issue in dispute. Because of this uncertainty arbitrators often found that bargaining councils have no jurisdiction to entertain these disputes, while on the other hand some arbitrators opined that bargaining councils do have jurisdiction In this treatise the general principles of the employment contract, the legislative framework applicable in the public education sector in determining an application for temporary incapacity leave and ill-health retirement and procedural and substantive issues in the termination of employment contract due to ill-health are considered and explained. The legal questions around the issue of discretion exercised by the Head of Department in granting or declining applications for ill-health are also examined. The primary aim of the treatise is to provide a clear exposition of the rather complicated law relating to incapacity due to ill-health and injury in public education.
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Rafapa, Malose Given. "Establishing good cause subsequent to a deemed dismissal." Thesis, Nelson Mandela Metropolitan University, 2017. http://hdl.handle.net/10948/11425.
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The establishing of good cause subsequent to a deemed dismissal, as practiced currently only in the public sector, has been a controversial issue for the courts, labour law commentators and academics alike. It has been so because of a number of legislative deficiencies which caused the inconsistent application of the deeming provisions across the public service. Amongst others, the legislative deficiencies regarding establishing good cause are; the time-limit for establishing good cause, what happens when the employee returns, whether establishing of good cause should be entertained through written response or a hearing, the Termination of Employment Convention, 1982(No. 158) is silent on the deeming provisions, review of the employer’s discretion not to reinstate the absconding employee and the legal position regarding the traditional healer’s certificate. There will be an intensive investigation on the validity of the traditional healer’s certificate. Majority of South Africans rely on the THP for a number of illnesses. In some cases, they use the traditional healer’s certificate to establish good cause subsequent to a deemed dismissal. The traditional healer’s certificate is not yet valid given the pending legislative processes. This issue will be broadly explored in order to uncover the causes for the delay in finalising this crucial issue. Most of the absconding employees have a problem of alcoholism. There is a causal relationship between deemed dismissal and alcoholism. It is again the intention of this study to fully investigate this phenomenon and provide solutions for the employers faced with this challenge. Practical solutions will be proposed for each identified legislative deficiency and any related challenge to help employers to manage the deeming provisions in a very effective and efficient manner.
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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.
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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.
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Sipuka, Sibongile. "Termination of the contract of employment not constituting dismissal." Thesis, Nelson Mandela Metropolitan University, 2015. http://hdl.handle.net/10948/d1021152.
Full textAbstract:
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
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Deysel, Petrus Gerhardus. "Dismissal of members of the South African Police Service for criminal convictions." Thesis, Nelson Mandela Metropolitan University, 2015. http://hdl.handle.net/10948/6084.
Full textAbstract:
The dawn of democracy failed to bring legitimacy to the Police Service. Public and political debate seriously lambasted the Police Service for criminal offences committed on and off duty by police officials which pertained to the infringement on the individual rights regarding personal safety and the right to own property. The outcry against criminal offences by police officials forced the Police Service to deal decisively with criminality in the Police Service by means of fitness boards. While the government and public approved of the attempts to rid the Police Service of criminality it was met with union resistance in the Eastern Cape and defeat in the Labour Court. Different legislation, internal arrangements and case law were observed in this study. The purpose was to determine the strength or weaknesses if any of the applicable legislation and internal arrangements which contributed to a finding against the Police Service in the Labour Court.
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Faker, Mogamat Salie. "Incapacity for poor work performance in the education sector." Thesis, Nelson Mandela Metropolitan University, 2014. http://hdl.handle.net/10948/d1020209.
Full textAbstract:
According to the latest Education Statistics Report published by the Department of Basic Education in March 2013, there were 12 680 829 learners and students in the basic education system in 2011, who attended 30 992 education institutions and were served by 441 128 educators. The vision of the Department of Basic Education is of a South Africa in which all our people have access to lifelong learning and education and training, which will, in turn, contribute towards improving the quality of life. Ultimately this will influence the building of a peaceful, prosperous and democratic South Africa. The emphasis is on excellence. Therefore maintaining high standards of performance and professionalism is a national imperative. However, this has not always been the case in terms of performance. For more than a decade we have witnessed dismal results in literacy and numeracy. This was accompanied by a low throughput rate. Despite the poor matric, literacy and numeracy results in South Africa as well as the low throughput rate, no teacher has been formally charged for poor performance in the last two decades. South Africa’s education budget is regarded as one of the highest in the developing world. Since 1993 the education budget has also grown substantially. South Africa’s education expenditure on education has grown from R30 billion in 1994/05 to R101 billion in 2007/08. Spending on education grew even further from R207 billion in 2012/13 to a projected R236 billion in 2014/15. Additional allocations of R18.8 billion over the medium term are accommodated, including equalisation of learner subsidies for no-fee schools and expanded access to grade R.6 Over the rest of the medium-term-expenditure framework (MTEF),7 spending on education, sport and culture will amount to R233 billion in 2013/14. The investment in education has not yet yielded the desired results and the outcome of education is not in keeping with the substantial input. This crisis in education is one of the major challenges facing Government, Administrators, educators, parents and children of today. According to Spaull,9 the South African government spends the equivalent of $1225 (R12440.26)10 per child on primary education, yet accomplishes less than the government of Kenya which spends only the equivalent of $258 (R2620.80)11 per child. Various reasons such as poverty, management, leadership, imbalances of the past, two unequal education systems, poor management, training and development, non-accountability, role of government and unions, have been identified for the poor state of our education system. However, what is noticeably absent and hardly mentioned in any of the position papers, is that not a single teacher has been held accountable and dismissed for incapacity for the poor performance in the education sector. Unfortunately, there is no record in any of the provincial education departments’ annual reports that a teacher has been dismissed or at least placed on a formal programme of incapacity for poor performance. Therefore, we have to ask the question: “Are we getting value for money?".
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James, Ncumisa Portia. "The relationship between an automatically unfair dismissal in terms of section 187(1)(c) of the labour relations act and a dismissal for operational reasons." Thesis, Nelson Mandela Metropolitan University, 2009. http://hdl.handle.net/10948/1034.
Full textAbstract:
Common law does recognise the concept of dismissal based on operational requirements. It recognises dismissals that are based on breach of expressed or implied terms of contract of employment. The concept of operational requirements has its roots in the Labour Relations Act 28 of 1956. This Act recognised termination of employment of a number of employees due to ability, capacity, productivity, conduct and operational requirements and needs of undertaking industry trade or occupation of the employer as legitimate. Under the 1956 LRA, employers were allowed to dismiss employees if employees refused to accept the proposed change to conditions of employment. The dismissal is called lock-out dismissal. This kind of dismissal entitled employers to dismiss employees on condition that the dismissal was temporary and the workers would be re-employed when they agree to the demands of the employer. After the contract of employment was terminated between the employer and employees, the employer was allowed to implement the changes using scab labour. The 1995 Labour Relations Act introduced section 187(1)(c) that was intended to re-enforce the abolishing of the lock-out dismissal. This section strictly forbids the dismissal of employees in order to compel them to accept demands of the employer in matters of mutual interest. Such dismissals are regarded as automatically unfair. In terms of section 64(4) of the 1995 LRA employers are not permitted to unilaterally effect changes to employees’ terms and conditions of employment. They are required to seek and obtain consent of the affected employees. If employees refuse to accept the proposed changes, the employer can use lock-out as defence. Firstly, the employer can initiate lock-out until employees accede to its demand. Secondly, the employer can lock-out employees in response to the notice of strike or strike of the employees. The employer can use scab labour during this lock-out period. Unlike the lock-out dismissal, lock-out under the 1995 LRA does not include termination of contract of employment. iv In contrast, employers are allowed to dismiss employees who refuse to agree to change to their terms and conditions of employment on the ground of operational requirements provided a fair procedure is followed. This reason for dismissal is not viewed by the courts as a dismissal to induce employees to accept the demand of the employer. The question that this study seeks to examine is the relationship between automatic unfair dismissal in terms of section 187(1)(c) of the Labour Relations Act and dismissal for operational requirements. A dispute between the employer and employees regarding change to terms and conditions of employment is a mutual interest dispute; and it therefore falls under collective bargaining. The same dispute can easily fall to rights dispute, because the reason for the proposed change to the production system and demand to the pursuit of improved efficiency and better achievement of profit objective related to operational requirement. There is obvious overlap between operational requirements and wage work bargaining. In Schoeman v Samsung Electronics, the court held that the employer is entitled to run its business in a prosperous way and this may entail affecting changes to terms and conditions of employment when the market forces demand so. In Mwasa v Independent Newspapers, the court held that change to terms and conditions of service of an employee can be proposed as a way to avoid retrenchment; dismissal of employees for refusing to accept the change is not covered by section 187(1)(c). In Fry’s Metals v Numsa, the court has rejected the notion that there is tension between section 187(1)(c) and section 188(1)(a)(ii). The court held that section 186(1) refers to dismissal or termination of workforce with the intention to end the employment contract and replacing the workforce with employees that are prepared to accept terms and conditions of employment that suit the employer’s operational requirements. The court argued further that the meaning of dismissal should be a v starting point when one wants to dispute the two sections. On the other hand, section 187(1)(c) was effected with a certain purpose, which is to prohibit the employer from dismissing employees in order to compel them to accept its demand in dispute of mutual interest. The court held that the dismissal in this case was final. The employer dismissed its employees because it did not need them anymore. This dismissal is in accordance with section 186(1). The court rejected that operational requirements is confirmed to saving business from bankruptcy. The court argued that the principle includes measures calculated to increase efficiency and profitability. The employer can dismiss and make more profit.
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De, Caires Anthony Ralph. "Examining the interplay between dismissals for operational requirements and automatically unfair dismissals in terms of section 187(1)(c) of the LRA." Thesis, University of the Western Cape, 2016. http://hdl.handle.net/11394/5293.
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Kattenbach, Ralph, Thomas Schneidhofer, Janine Lücke, Markus Latzke, Bernadette Loacker, Florian Schramm, and Wolfgang Mayrhofer. "A quarter of a century of job transitions in Germany." Elsevier, 2014. http://dx.doi.org/10.1016/j.jvb.2013.11.001.
Full textAbstract:
By examining trends in intra-organizational and inter-organizational job transition probabilities
among professional and managerial employees in Germany, we test the applicability of
mainstream career theory to a specific context and challenge its implied change assumption.
Drawing on data from the German Socio-Economic Panel (GSOEP), we apply linear probability
models to show the influence of time, economic cycle and age on the probability of job
transitions between 1984 and 2010. Results indicate a slight negative trend in the frequency of
job transitions during the analyzed time span, owing to a pronounced decrease in
intra-organizational transitions, which is only partly offset by a comparatively weaker positive
trend towards increased inter-organizational transitions. The latter is strongly influenced by
fluctuations in the economic cycle. Finally, the probability of job transitions keeps declining
steadily through the course of one's working life. In contrast to inter-organizational transitions,
however, this age effect for intra-organizational transitions has decreased over time. (authors' abstract)
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Westermann-Winter, Birgit. "A phenomenological study into the experiences of retrenchment implementers." Thesis, Stellenbosch : University of Stellenbosch, 2007. http://hdl.handle.net/10019.1/2744.
Full textAbstract:
Thesis (MA(Industrial Psychology))--University of Stellenbosch, 2007.Increased globalisation and competition have implications for organisational renewal and change and increasingly cost cutting, by retrenching employees, is part of the search for competitive advantage and sustainability. Within the South African context, retrenchments are no exception. The study explored the experiences of those who are tasked with the role of implementing the retrenchment, the so-called retrenchment implementers. Despite implementers being key to ensuring organisational success and profitability in the aftermath of retrenchment, research on their experiences is limited not only internationally, but also locally. The study was conducted amongst participants employed at various South African organisations. Qualitative data was obtained via semi-structured interviews with the implementers of retrenchments. Following content analysis, three key themes emerged: implementers’ experiences of procedural aspects as per s189 and s189A of the Labour Relations Act 66, of 1995 (as amended); implementers’ personal experiences of performing the retrenchment act and organisational and personal enabling strategies to assist with preparing implementers for the retrenchment task. Results indicate mixed responses in terms of complying with the relevant legislation. Insofar as their personal experiences are concerned, results indicate that while some implementers had found ways to adjust to their managerial function of implementing retrenchments, others experienced discomfort with their role, suffering from amongst others guilt and feelings of responsibility, role conflict, role overload, decreased emotional well being, a sense of isolation, negative self-perceptions and feelings of job insecurity. In the majority of cases, implementers experienced limited organisational emotional support and assistance in dealing with their emotions during the retrenchment conversation. These results support the limited non-South African literature. The results from the present study also added insight into the ways in which implementers are personally prepared for their role as well as ways in which organisations can assist them emotionally for their task.
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Abbo, Tertius. "Een rechtsvergelijkende studie tussen het Nederlandse en Zuid-Afrikaanse ontslagrecht : met als deelonderwerp, retrenchment." Thesis, Stellenbosch : Stellenbosch University, 1992. http://hdl.handle.net/10019.1/69635.
Full textAbstract:
Thesis (LLM) -- Stellenbosch University, 1992.Includes bibliography
ENGLISH ABSTRACT: The central concern of this thesis is retrenchment. It begins with an overview of the law concerning dismissal whereafter the general position relating to retrenchment and the guidelines of the Industrial Court in that regard, are discussed. Reference is also made to retrenchment on the grounds of insolvency, closure and merger of companies. The legal position in South Africa is compared with that in Dutch labour law, with the purpose of the determining which of the two systems offer the best protection to employees faced with retrenchment. Two criteria were applied, ie that of ,~srtainty of law and the level of protection offered by the law. The differences between the two systems are substantial. While South Africa has a common law system, the Dutch have a civil law system. A second difference is the fact that in the Netherlands there exists a very strong state intervention in employment affairs to a far larger degree than in South Africa. Dutch dismissal law can be called preventive and pro-active, while the South African law appears to be largely re-active. The general conclusion is that workers' ri9hts in the event of retrenchment are more secure in Dutch labour law, and that the Dutch system offers a useful point of reference for reform of the South African position.
DUTCH OPSOMMING: Het centrale onderwerp in deze thesis is retrenchment. Alvorens hier op in te gaan is eerst een overzicht gegeven van de relevante arbeidswetten en het ontslagrecht in het algemeen. We hebben gekeken naar de diverse omstandigheden waarin retrenchment zoal voorkomt. Ondermeer is ingegaan op de omstandigheden rondom sluiting, faillissement en fusie van tedrijven. Verder zijn de diverse richtlijnen voer retrenchment en de rol van de Industrial Court ter sprake gekomen. Om een en ander in perspectief te plaatsen is voorts een vergelijking gemaakt met Nederland. De bedoeling is om te kijken naar welk systeem betere waarborgen biedt voar de werknemer. Hiertoe zijn twee criteria gesteld. Deze zijn de mate van rechtszekerheid en de mate van r~chtsbescherming. De geconstateerde verschillen zijn behoorlijk. Als eerste is het juridisch systeem al verschillend. Zuid-Afrika kent een gemene rechtssysteem en Nederland een burgerlijk rechtssysteem. Een tweede verschil is dat i.n Nederland sprake is van een actieve staatsinterventie. In Nederland kan men spreken van een prefentief ontslagrecht, terwijl in Zuid-Afrika gesproken kan worden van repressief ontslagrecht. De conclusie die uiteindelijk getrokken is, is dat het Nederlandse systeern betere waarborgen biedt voor de werknemer.
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DAVY, JEANETTE ANN. "PROCEDURAL JUSTICE, SITUATIONAL CONTROL AND SELF-PERCEPTION APPLIED TO UNDERSTANDING THE EFFECTS OF LAYOFFS ON SURVIVORS (PARTICIPATION, EQUITY, EQUALITY)." Diss., The University of Arizona, 1986. http://hdl.handle.net/10150/188182.
Full textAbstract:
Procedural justice is applied to layoffs to study the effects of layoffs on survivors. Procedural norms, developed as components of procedural justice, are applied to develop two different layoff procedures, merit and random. The hypotheses come from this application as moderated by the individual's self-perception. Low performers prefer a procedural equality layoff, while high performers demonstrate no clear preference for either layoff procedure. When given the opportunity to choose a layoff procedure, the subjects having control over the layoff procedure to be used were no more satisfied with the process than those who had no control. Performance equity (merit) layoff. Subjects in this condition decreased performance, while the subjects in the other layoff conditions maintained performance levels.
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Goodnight, Ronald Keith. "A major turnaround from massive lay-offs to hiring employees : a company culture proved more accurate than management's predictions." Virtual Press, 1988. http://liblink.bsu.edu/uhtbin/catkey/546121.
Full textAbstract:
This in-depth study looked at a major manufacturing company during a year when management projected contract losses and massive lay-offs and terminations. The company's hourly employee culture indicated that the major automotive customers of the company were influential driving forces and would rescue the company from the dire management predictions. The principal major research question was to determine the accuracy of predictions based upon the company's hourly workers' culture versus management's predictions and actions based upon external sources.Another investigation area was the company management's actions to manifest their avowed "our employees are our most valuable resource and asset" belief statement. Similarly, would the Professional and Technician Equal Employment Opportunity job groups have the smallest percent of reduction, since the company's primary strength was purported to lie in its engineering and technical employees?Interviews, data collection and analysis, and monthly task force investigations and communications revealed the company culture was definitely more accurate than the numerous predictions made by management. As the "culture" predicted, the loss of the contracts did not occur. The company concluded the year with increases in total employment. Temporary lay-offs did occur during the year and management took numerous actions to help both retained employees and those being terminated or laid-off. Such actions included outplacement services, stress reduction programs, job placement and resume writing, and instituting communication networks and procedures and a Dispute Resolution Procedure. The company did show that the employees were valuable and important assets.The reduction numbers and percents for the Professionals (engineers) and Technicians were exactly opposite of what management typically avowed. The largest category reduced was the Technicians and the second-largest category was the Professionals.The company continued to be quite viable and the future outlook became optimistic, which coincides with the company culture that the major automotive customers will always be there needing the company's products.The company management took several steps to prevent their predictions from occurring, while hourly employees, using only history which is not a very dependable source for industry today, happened to be correct in this study.The primary conclusion was that the culture of the company's hourly workers was more accurate in predicting the future than management's predictions based on supposed knowledgeable external sources. It was recommended that internal cultural based predictions and externally based information be blended together for the most accurate predictions. This will provide all managements everywhere a better information base for making decisions, particularly strategic planning decisions.Center for Lifelong Education
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Mazantsana, Vuyo Leonard. "The retrenchment processes and procedures in an Eastern Cape motor manufacturing company." Thesis, Nelson Mandela Metropolitan University, 2012. http://hdl.handle.net/10948/d1018507.
Full textAbstract:
Previously, the Labour Relations Act made it compulsory for the employer to consult on appropriate measures to avoid, minimise and change the timing of dismissals, mitigate the adverse effect of the dismissals, the method for selecting the employees to be dismissed, and severance pay for the dismissed employees. The Labour Relations Act 66 of 1995 (LRA) specifies the steps that must be followed when they consider dismissing employees for reasons based on the operational requirements of their business. The necessary and appropriate steps to be followed for dismissal for operational reasons are contained in Section 189 of the LRA. Before an employer can start the retrenchment process, he/she is required by law to give a written notice inviting the other parties to consult and the employer must be prepared to disclose all relevant information. The new law that governs disclosure states that if an arbitrator or the Labour Court is required to decide whether or not information is relevant to the proposed retrenchments, the onus is on the employer to prove that any information that it refuses to disclose is not relevant for the purpose for which it is sought. It is also provided that if a consulting party makes any representation to the employer in writing, the employer must respond in writing. In terms of Section 189A (19) of the LRA clear guidance is given as to when will a fair reason be granted to dismiss for reasons based on operational requirements. This Section, further suggests that the Labour Court must ascertain that an employee was dismissed for a fair reason if: the dismissal was for requirements based on the employer's economic, technological, structural or similar needs; the dismissal was operationally justifiable on reasonable grounds; there was a proper consideration of other options to save job loses; and criteria used for selecting people for retrenchment were fair and objective. This is a much stricter test for substantive fairness than was previously applied. The aim of this study is to determine whether the retrenchment processes and procedures practiced in the motor manufacturing company in the Eastern Cape are compliant with the legislative framework. The company policy was examined against the literature available and the retrenchment processes of different authors were investigated. For the purpose of this study, the researcher used a structured self-administered questionnaire to collect data from the respondents. The questionnaire was delivered by hand to each respondent and collected later. The questionnaire was carefully designed considering the main components and aspects of dismissal for operational requirements as revealed in the theory. The results of the empirical study revealed that the company conducts fair and proper retrenchment processes and procedures, consults with all the relevant stakeholders, follows the right consulting process when it contemplates dismissing employees for operational requirements, uses fair selection criteria and does not unfairly discriminate against employees based on arbitrary grounds. In respect of disclosure of information, the respondents were aware of what information is shared and disclosed and for what purposes. The findings indicated that the majority of the retrenchment processes and procedures applied in the motor manufacturing company in the Eastern Cape are in line with the best practise and compliant with legislative framework. Based on the findings of the study, the researcher recommends that the employer should create awareness and educate employees on the importance of the dimensions related to retrenchment processes and procedures whenever the company embarks on dismissal for operational requirements.
31
Maysent, Anne Miya. "Coping with Job Loss and Career Stress: Effectiveness of Stress Management Training with Outplaced Employees." Thesis, University of North Texas, 1995. https://digital.library.unt.edu/ark:/67531/metadc278646/.
Full textAbstract:
A stress management intervention was developed and integrated into the services provided by one of the nation's largest outplacement consultants. The purpose of the intervention was to aid outplacement clients in the management and resolution of stress associated with job loss and career transition. Based on the results of this study, the intervention had the effect of helping treatment participants maintain their levels of effective coping when compared to nonparticipants. This study supports the hypothesis that stress management training can be helpful for unemployed individuals and may impact their emotional well-being as they go through the job search process.
32
Gunkel, Marjaana. "Country compatible incentive design : a comparison of employees' performance reward preferences in Germany and the USA /." Wiesbaden : Dt. Univ.-Verl, 2006. http://bvbr.bib-bvb.de:8991/F?func=service&doc_library=BVB01&doc_number=015618335&line_number=0001&func_code=DB_RECORDS&service_type=MEDIA.
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Gunkel, Marjaana Wolff Birgitta. "Country-compatible incentive design : a comparision of employees' performance reward preferences in Germany and the USA /." Wiesbaden : Dt. Univ.-Verl, 2006. http://www.gbv.de/dms/zbw/509009921.pdf.
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Gunkel, Marjaana. "Country-compatible incentive design : a comparision of employees' performance reward preferences in Germany and the USA /." Wiesbaden : Deutscher Universitäts-Verlag, 2006. http://www.gbv.de/dms/zbw/509009921.pdf.
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Rune, Mawethu Siyabulela. "Application of Section 189 and Section 189A of the Labour Relations Act 66 of 1995 as amended." Thesis, Nelson Mandela Metropolitan University, 2010. http://hdl.handle.net/10948/1281.
Full textAbstract:
Economies worldwide have become more integrated and competitive due to the phenomenon of globalisation and its antecedents, which are improved technological communication, the use of technology in production, ever improving management of skills as well as standards of education. Amongst the consequences have been changing demands and rising expectations in terms of employee remuneration, job security and conditions of work. This has at the same time been accompanied by employers expecting greater profit. Against this backdrop, this treatise seeks to interrogate and to explain the processes that should constitute fair, rational and justifiable employee dismissal for operational purposes. This is done bearing in mind the global economic crisis and its impact on employees. The treatise constitutes an attempt to carve a cushioning mechanism for employees in the midst of the global economic storm. We consider the inadequacies of common law principles. We also submit that section 189 in its present form and its application by courts do not provide for substantive fairness interrogation when dealing with dismissal for operational reasons. We explore the legislative framework, interpretation by leading academics as well as applications by courts of section 189A, which prescribes that if dismissal is based on operational reasons, consideration must not only be based on substantive and procedural fairness but also that proper consideration of alternatives must have been explored before dismissal is effected.
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Harrison, Gary L. McNeal Larry. "An analysis of the dismissal of tenured teachers under Article 24A of Illinois Public Acts 84-126 and 84-972 evaluation of certified employees /." Normal, Ill. Illinois State University, 1998. http://wwwlib.umi.com/cr/ilstu/fullcit?p9835905.
Full textAbstract:
Thesis (Ed. D.)--Illinois State University, 1998.Title from title page screen, viewed July 3, 2006. Dissertation Committee: Larry McNeal (chair), Elizabeth Lugg, David Blacker, Donald Hackmann, R. Craig Whitlock. Includes bibliographical references (leaves 157-163) and abstract. Also available in print.
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Zirner, Ulrike C. "Overseas effectiveness of American expatriates in Germany." Thesis, This resource online, 1993. http://scholar.lib.vt.edu/theses/available/etd-06302009-040439/.
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Arkel, Engeline Grace van. "A just cause for dismissal in the United States and the Netherlands a study on the extent of protection against arbitrary dismissal for private-sector employees under American and Dutch law in light of Article 4 of ILO convention 158 /." [S.l.] : Rotterdam : Boom ; Erasmus University [Host], 2007. http://hdl.handle.net/1765/9080.
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Chadd, Kevin Mark. "Insubordination in the workplace." Thesis, Rhodes University, 1999. http://hdl.handle.net/10962/d1003183.
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This thesis traces the development of insubordination in the employment relationship. The essence of the relationship is that the employee, by contracting out his or her productive capacity, occupies a subordinate position. The primary aim is to locate and define the nature of subordination and to investigate how the breach of this position would justify dismissal as interpreted and applied by the courts. This is achieved by investigating dismissal for insubordination under the common law contract of employment, the unfair labour practice jurisdiction and the 1995 Labour Relations Act. Initially the obligation of the employee to be subordinate, an essential term of the contract of employment, is located and defined by using the tests of Control, Organisation and Dominant Impression, which theoretically indicate the true nature of insubordination. Insubordination under the common law is equated with disobedience to the lawful and reasonable instructions of the employer which were given in good faith and fell squarely within the contractual relationship. Insubordination under the unfair labour practice jurisdiction was equated with a challenge to the authority of the employer of which disobedience was a manifestation of such intention. Instructions given by the employer under the unfair labour practice jurisdiction had to be lawful, reasonable and fair. What was fair depended on the surrounding circumstances of the dismissal and a wilful and unreasonable refusal of the employee to obey the valid instructions of the employer justified dismissal Under the 1995 Labour Relations Act it is submitted that insubordination will be dealt with in essentially the same manner as under the previous jurisdiction, subject to the Act's objectives and purposes. The disobedience of the employee is to be tolerated if that employee is attempting to achieve the Act's objectives, and any dismissal as a result of the disobedience could be unfair, because the employer's conduct fiustrates the purpose of the Act. Therefore, the contractual right of the employer to expect subordination from the employee may have been whittled away to such an extent over time that it seems superficial to regard subordination as an essential term of the contract of employment.
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Brown, Timothy Glen. "Group dismissal for poor performance as a response to excessive stock shrinkage : a study of owner-managed franchised grocery retailers." Thesis, Stellenbosch : Stellenbosch University, 2008. http://hdl.handle.net/10019.1/5488.
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Thesis (MBA (Business Management))--Stellenbosch University, 2008.ENGLISH ABSTRACT: Excessive shrinkage threatens the viability of retailers, especially grocery retailers because they operate on low profit margins. One possibility is for retailers to dismiss employees who are perceived to be responsible for excessive shrinkage, but South African law generally requires that the employer prove individual culpability or poor performance to justify a dismissal. In most cases, retailers are not able to identify the exact causes of shrinkage or those employees who may be responsible for the shrinkage. Pep Stores has developed a novel group dismissal model, using a poor performance process, in terms of which a store's entire staff complement is dismissed on the basis of collective responsibility for failing to avoid excessive shrinkage. The Pep model is attractive to retailers because it overcomes the retailer's inability to produce evidence relating to excessive shrinkage. This Study Project seeks to determine whether collective responsibility for shrinkage may be introduced in owner-managed grocery stores and, if not, whether adaptation of the model or new technology might facilitate its introduction. A further objective is to determine whether the applicability of the Pep model correlates to factors such as the size, activity level and complexity of retail stores. Three barriers to the application of the Pep model in grocery retail stores were identified: firstly, the determination of an "acceptable level of shrinkage" that is reasonably attainable; secondly, the conducting of sufficiently accurate stock takes to support dismissals and, thirdly, the existence or creation of circumstances allowing the implementation of collective responsibility for shrinkage. Grocery retailers have no difficulty in identifying an attainable "acceptable level of shrinkage" or in conducting highly accurate stock takes and stock counts. Circumstances allowing the imposition of collective responsibility for shrinkage were, however, clearly not present. Collective responsibility was precluded by the specialised nature of the employees' tasks and a lack of co-responsibility arising from employees' inability to directly observe each other. However, an adapted Pep model is applicable in grocery retail stores at departmental level if the departments are insulated from fraud or error by receiving clerks and cashiers. This insulation may be achieved by implementing joint receiving procedures that involve each department in receiving departmental stock and an increase in cashier monitoring. The introduction of Radio Frequency Identification Technology will ultimately facilitate the implementation of the Pep model through the enhanced insulation of departments. This enhanced insulation is achieved through the ability to track the movement of individual items in stores and the reduction of receiving and cashier error and fraud as a result of the automation of aspects of these functions. This technology, however, is unlikely to be implemented in the short term given the significant cost of RFID tags and the technical and organisational constraints to adoption. Perceptions on the applicability of the Pep model are correlated in smaller stores to total store floor areas, while the applicability of the model in larger stores is correlated to the size of staff complements. This suggests that the model may be ideally applicable in smaller stores, where the total store floor area is relatively smaller and in larger stores, where the staff complements are relatively larger.
AFRIKAANSE OPSOMMING: Oormatige voorraadverlies bedreig die lewensvatbaarheid van kleinhandelaars, veral kruidenierswarehandelaars, omdat hulle met klein winsmarges werk. Een moontlikheid is dat kleinhandelaars werknemers ontslaan wat gesien word as die verantwoordelikes vir oormatige voorraadverlies, maar die Suid-Afrikaanse reg vereis oor die algemeen dat die werkgewer indiwiduele skuld of swak prestasie bewys om ontslag te regverdig. In die meeste gevalle is kleinhandelaars nie in staat om die presiese oorsake van voorraadverlies, of die werknemers wat vir die voorraadverlies verantwoordelik mag wees, te identifiseer nie. Pep Stores het 'n vindingryke groep-ontslagmodel ontwikkel, met gebruik van 'n swakprestasieproses, ingevolge waarvan 'n winkel se hele personeel ontslaan word op grond van kollektiewe verantwoordelikheid weens versuim om oormatige voorraadverlies te vermy. Die Pep-model is aantreklik vir kleinhandelaars, want dit oorkom die kleinhandelaar se onvermoë om bewys te lewer in verband met oormatige voorraadverlies. Hierdie navorsingsprojek probeer vasstel of kollektiewe verantwoordelikheid vir voorraadverlies ingestel kan word in eienaarbestuurde kruidenierswinkels en, indien nie, of aanpassing van die model, of nuwe tegnologie, die invoer daarvan sou kon fasiliteer. 'n Verdere doelstelling is om vas te stel of die toepaslikheid van die Pepmodel korreleer met faktore soos die grootte, bedrywigheidsvlak en kompleksiteit van kleinhandelwinkels. Drie struikelblokke vir toepassing van die Pep-model in kleinhandelkruidenierswinkels is geidentifiseer: eerstens, die bepaal van 'n "aanvaarbare voorraadverliesvlak" wat redelik haalbaar is; tweedens, die uitvoer van voldoende akkurate voorraadopnames om ontslag te steun en derdens die bestaan of skep van omstandighede wat die implementering van kollektiewe verantwoordelikheid vir voorraadverlies moontlik sal maak. Kruidenierskleinhandelaars ondervind geen probleme met die identifisering van haalbare "aanvaarbare voorraadverliesvlakke" of met die uitvoer van hoogs akkurate voorraadopnames en - tellings nie. Omstandighede wat die oplê van kollektiewe verantwoordelikheid vir voorraadverlies moontlik maak, was egter duidelik nie aanwesig nie. Kllektiewe verantwoordelikheid is uitgesluit weens die gespesialiseerde aard van die werknemers se take en 'n gebrek aan mede-verantwoordelikheid weens werknemers se onvermoë am mekaar direk waar te neem. 'n Aangepaste Pep-model is egter toepasbaar in kruidenierskleinhandelwinkels op departementele vlak indien die departemente van bedrog of foute deur ontvangsklerke en kassiere afgeskerm word. Die afskerming kan bereik word deur die implementering van gesamentlike ontvangsprosedures wat elke departement betrek by die ontvangs van departementele voorraad en verskerpte kassiermonitering. Die invoer van Radiofrekwensie-identifikasietegnologie sal uiteindelik die implementering van die Pep-model fassiliteer deur die verhoogde afskerming van departemente. Hierdie verhoogde afskerming word bereik deur die vermoë om die beweging van indiwiduele items in winkels na te speur en die vermindering van ontvangs- en kassierfoute en -bedrog as gevolg van die outomatisering van aspekte van die funksies. Hierdie tegnologie sal egter waarskynlik nie oor die korttermyn toegepas word nie weens die aansienlike koste van RFIO-etikette en die tegniese en organisatoriese beperkings op die invoer daarvan. Persepsies oor die toepasbaarheid van die Pep-model word in kleiner winkels gekorreleer met die totale winkelvloeroppervlak, terwyl die toepasbaarheid van die model in groter winkels gekorreleer word met die grootte van die personeelkorps. Dit suggereer dat die model ideaal toepasbaar mag wees in kleiner winkels waar die totale winkelvloeroppervlak relatief kleiner is en in groter winkels waar die personeelkorps relatief groter is.
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Rinkwest, Shani Lucille. "The interrelationships among job insecurity, locus of control, sense of coherence and organisational commitment of survivors of downsizing." Thesis, University of the Western Cape, 2003. http://etd.uwc.ac.za/index.php?module=etd&.
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Downsizing is one of the most common organisational reactions to organisational change. The effects of global competition, mergers, and the privatisation of public sector companies, among others, are forcing organisations in South Africa to resort to workforce reduction. The purpose of the present study was to address the lack of research on the impact of downsizing on survivors. Specifically, the study examined the interactive effects of job insecurity, locus of control and sense of coherence on the organisational commitment of survivors.
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Ritz, Sebastian. "Die Auswirkungen des Gesetzes zu Reformen am Arbeitsmarkt auf den Anwendungsbereich der dreiwöchigen Klagefrist gemäss den [Paragraphen] 4 bis 7 KSchG /." Frankfurt/Main ; New York : P. Lang, 2007. http://bvbr.bib-bvb.de:8991/F?func=service&doc_library=BVB01&doc_number=015680107&line_number=0001&func_code=DB_RECORDS&service_type=MEDIA.
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Ah, Shene Lee-Anne Dorothy. "Large scale retrenchments: an overview of Section 189 A." Thesis, Nelson Mandela Metropolitan University, 2012. http://hdl.handle.net/10948/d1012042.
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This treatise sets out and evaluates recent developments in the area of large-scale retrenchments in South Africa. Dismissals are considered to be a source of great controversy, but more so large scale retrenchments. It was with this in mind that the various role players sought an amendment in 2002 so as to address the concerns by both employers and employees. The applicable legislation, namely section 189A of the Labour Relations Act 66 of 1995, was enacted to ensure the smooth operation of this genre of retrenchments. In this treatise, section 189A will be evaluated. Section 189A stipulates what procedure should be utilized, for dismissals necessitated by operational requirements. The inclusion of this provision was an attempt to address the concerns of both employers and employees. Chapter 1 provides us with an overview with regard to why change with regard to retrenchment legislation was necessary. In Chapter 2 the definition of operational requirements will be unpacked as well as what definition the courts have attached to the term "operational requirements‟, and more importantly the issue relating to substantive fairness. Chapter 3 examines when the applicable provision is triggered, whether or not an employer can stagger retrenchments, the facilitation process, and the regulations pertaining to facilitations. The facilitation process itself and the consultation aspect of the facilitation process are recounted. The meaning of „consultation‟ is evaluated, and it should be noted that section 189 and section 189A are interrelated when topics of consultation are considered. Chapter 4 addresses the instance when no facilitator is appointed and the mechanisms of section 189A(7) and (8); further discussions relating to subsection 13, and 19 will furthermore be evaluated with reference to case law. Chapter 5 sets out the various viewpoints on whether or not section 189A has been successful, and the chapter questions the effectiveness of the provision to provide a realistic view of large-scale retrenchments and whether the enactment thereof was an effective mechanism protecting the rights of employees faced with possible unemployment. The implementation of the training lay off system will be looked at and the statistics of the CCMA will be used as a measure to determine the effectiveness of section 189A. Chapter 6 concludes the thesis, by highlighting lessons learnt from case law for both employees and employers.
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Connor-Elinav, Oshrat. "An Exploratory Study of Stress, Emotional Labour and coping of Hotel Employees in the UK, the Netherlands and Germany." Thesis, University of Manchester, 2009. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.516435.
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This study is an investigation of the impact of coping resources and strategies on the relationship between emotional labour (herein EL) and strain outcomes for employees in the hotel industry in the UK, the Netherlands, and the former East Germany. A mixed-methods research design was incorporated. Results are based on 79 in-depth interviews with employees from hotels in the investigated countries, and 124 questionnaires (36% response rate). The questionnaires utilised the Visual Analogue Scale (herein VAS), a graphic statistical measure not commonly used in management research, in addition to the commonly used Likert-scales. The utility of the VAS is discussed. Findings corroborate unmeasured claims that hotel employees suffer high stress, but show that they are also highly motivated by their jobs. The specific sources of stress for the industry are identified. No differences in stressors or motivators were found across national cultures and this is discussed. An important contribution of this research was in establishing that EL is identified by participants as an independent source of stress in the context of other workplace . stressors. Employees reported they are under persistent high demand to perform emotional management. EL was assessed in the context of workplace stressors and motivators. Demands for emotional regulation were significant predictors of strain, and mediated the relationship between the stressor 'work conditions' and strain. EL also reversed the effect of a job-motivator to a source of stress. Distinct differences were found between 'Front' and 'Back' facing roles, and by hierarchical positions, in perceived experience of EL. Thus, partial support was given to Hochschild's (1983) claim that frequent and prolonged customer interaction determined consequences of EL. However, after controlling for customer contact, deep acting was the best predictor of general stress, suggesting that a simple classification of 'EL-jobs' or 'no EL- jobs' is not adequate when measuring the relationship between EL and stress. Finding support existing literature regarding the adverse effects of performing emotion regulation, but do not substantiate potential positive effects of EL. Another significant contribution was the investigation of the impact coping has on the relationship between EL and strain. Important differences were identified between national cultures in the availability of coping resources and structures. Possible reasons are discussed, including cultural differences in approaches to social support, locus of control, perceived financial and job stability, and national-characteristic based on Hofstede's (1980) dimensions. Implications for international organisations are suggested. The interaction between individual coping styles and EL has not been investigated previously. Coping strategies were found to moderate the EL-strain relationship. As expected task oriented coping was found more adaptive at reducing strain caused by EL demands. Findings from both qualitative and quantitative stages are integrated and are demonstrated to act in a similar manner as suggested in Cote's (2005) Social Interaction Model. Based on these findings recommendations for the employer are suggested.
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Başara, Meltem. "Cultural influences on service quality expectations evidence from the hotel sector in Germany and Spain /." View electronic thesis (PDF), 2009. http://dl.uncw.edu/etd/2009-3/rp/basaram/meltembasara.pdf.
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Qotoyi, Thanduxolo. "Dismissals within the context of collective bargaining." Thesis, Nelson Mandela Metropolitan University, 2009. http://hdl.handle.net/10948/1039.
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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.
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Grigor, Francois. "Establishing a fair sanction in misconduct cases." Thesis, Nelson Mandela Metropolitan University, 2013. http://hdl.handle.net/10948/d1021217.
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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.
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Petersen, Desmond. "Changing terms and conditions of employment in the South African labour relations arena -- the approach of the courts: A comparative analysis." University of the Western Cape, 2004. http://etd.uwc.ac.za/index.php?module=etd&.
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This paper focused on how competing interests of employers and employees are accomodated in the South African Labour Relations arena. An analysis of the legislative framework was undertaken to establish how the legislation provides for changes in workplace practices as well as the protection that it affords employees against unwanted or unilateral changes. The main focus of the research was on how the South African Courts have interpreted the legislation and how it has applied the law in cases involving the changing of terms and conditions of employment, that has come before it.
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Strydom, Wynand Wilhelmus. "The requirement of "bumping" in operational-requirement dismissals." Thesis, Nelson Mandela Metropolitan University, 2015. http://hdl.handle.net/10948/5896.
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This treatise interrogates the concept of bumping and commences with the background and rationale to the study. It poses a problem statement and sets out the aims and objectives it intends to achieve by virtue of specific research questions identified in the first chapter. The second chapter deals with the history and origin of the concept of bumping whereafter it elaborates on the evolution of bumping in the South African labour-law context and it furthermore introduces the retrenchment guidelines as drafted by Halton Cheadle in 1985. A review and reappraisal of the retrenchment guidelines by Andre van Niekerk are also raised in the second chapter. This is followed by a discussion on the aspects relating to fair selection criteria as pronounced by South African labour-law jurisprudence and deals specifically with the concept of LIFO and the employment universe. The third chapter also raises the various forms of bumping, as well as applicable limitations thereto. Following an in-depth look at the South African courts’ interpretation of bumping-related scenarios, a comparison with international standards is launched whereby relevant ILO recommendations are used as reference. An interpretation of United Kingdom case law is discussed, whereafter it is compared with the South African approach. The fifth chapter deals with the legislative requirements for fair dismissals and fair retrenchment dismissals in particular. The nexus between substantive and procedural fairness requirements is highlighted and the remainder of the fifth chapter deals with procedural fairness requirements which would be applicable in bumping-related retrenchment scenarios. The final chapter briefly alludes to whether bumping should be categorised as a genuine alternative to retrenchment, or merely as an extension of LIFO as a selection criterion. The treatise concludes with procedural recommendations in dealing with bumped employees in the form of retrenchment guidelines for consultations with employees affected by bumping.
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Mnguni, Sihle. "The application of section 17 of the Employment of Educators' Act." Thesis, Nelson Mandela Metropolitan University, 2016. http://hdl.handle.net/10948/11865.
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The purpose of this treatise is to discuss the implementation of section 17 of The Employment of Educators’ Act1 with a view to examining its shortcomings in fulfilling the requirements of fairness. Section 17 makes dismissal for transgressing any of the misconduct cases listed therein compulsory. This is so because of the use of the term “must” in its opening sentence. The Constitutional Court in Sidumo v Rustenburg Platinum Mines2 emphasizes the consideration of the totality of circumstances before the dismissal sanction is imposed by an employer. These include but not limited to the importance of the rule that has been breached to the employer; the basis of the employee’s challenge to the dismissal; the harm caused by the employee’s conduct; the effect of dismissal on the employee and the length of service. The treatise argues that in its current form section 17 of The Employment of Educators’ Act does not cater for the consideration of these circumstances set by the Constitutional Court. The study will also discuss the applicable dismissal legislation in education. The Constitution of the Republic of South Africa guarantees everyone a right to fair labour practices.3 This right is further qualified by the Labour Relations Act4 in section 185. The Labour Relations Act also has in it Schedule 8 which is a Code of Good Practice: Dismissal. The Code endorses the concept of corrective or progressive discipline5 and the need to give due consideration to certain circumstances before dismissing an employee.6 The consideration of the circumstances listed by the Constitutional Court in Sidumo v Rustenburg Platinum Mines7 and the provisions of items 3(2) and 3(6) cannot be said to be well catered for under section 17 of the Employment of Educators’ Act because of the use of the term “must”. For the principle of fair labour practices to be fully accommodated under section 17 of the Employment of Educators’ Act a need to amend it is necessary. This treatise will introduce amendments that will provide for pre-dismissal arbitration as a possible approach to ensuring full compliance for fairness in dismissals that are as a result of transgressing any of the misconduct cases listed in section 17. Other amendments suggested are aimed at realigning section 17 to other child specific legislation like the Children’s Amendment Act8 and the Sexual Offences and Related Matters Amendment Act.