Rozprawy doktorskie: „Unfair dismissal”

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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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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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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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Southey, Kim. "An analysis of unfair dismissal grievance arbitration in Australia". University of Southern Queensland, Faculty of Business, 2008. http://eprints.usq.edu.au/archive/00004435/.

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[Abstract]: This study identifies statistically significant associations between unfair dismissal arbitration decisions and inherent characteristics pertaining to the unfair dismissal claims. The inherent characteristics examined are the industry sector in which the employee worked, the occupational skill level of the employee’s position, size of the business, presence of human resource expertise within the business, the reason for dismissal, and the genders of both the employee and arbitrator. This research contributes to the body of knowledge on grievance activity within the workplace. It focuses specifically on arbitrated grievances and as such, AIRC unfair dismissal decisions are investigated as an exemplar of arbitrated grievance activity. This study is within an Australian context which may limit its world-wide generalisability but its strength is that it addresses across industry and across occupational data.Empirical analysis is undertaken using data collected from unfair dismissal arbitration decisions made by the AIRC during 2004 and 2005. Three hundred and eighty-four (384) cases are analysed, with 34.4% of the arbitration findings occurring in the grievant’s favour and 65.6% in the employer’s favour. It is noted that this figure is inflated in the employer’s favour because it includes cases lodged and later rejected by the commission for jurisdictional reasons. The split counting the 274 within jurisdiction cases is 51.8% in the employer’s favour and 48.2% in the grievant’s favour. The results of chi-square tests indicate that six characteristics have statistically significant association with the arbitration outcome. These characteristics are: occupational skill level of the grievant; the size of the business; the presence of HR expertise; the reason dismissed; the grievant’s gender; and the arbitrator’s gender. No association was found between the industry sector and arbitration decision, although there is a significant association between industry sector and jurisdictionally rejected claims.The collective finding of the hypotheses tests suggests that the type of aggrieved employee associated with a favourable arbitration outcome is one from an organisation of between 50 and 100 employees without an HR expert, working in a lower skilled occupation, having been made redundant, is female and appears before a male arbitrator. Whereas, the type of employer associated with a favourable arbitration outcome is one who has either up to 50 staff, or over 200 staff with an HR expert, who dismissed a male employee working in a higher skilled occupation for serious misconduct with the case before a female arbitrator.A major policy implication of this research relates to the Rudd government’s proposed legislative reforms of the unfair dismissal provisions. This study identifies disadvantaged groups of workers when it comes to dismissal practices of employers, namely employees from businesses of 50 to 100 workers and lower skilled workers. Identified also was the need for training for businesses to enable them to engage in procedurally fair redundancy processes and for gender bias awareness for arbitrators. In terms of further research, this study provides the foundation for predictive statistical analysis. The variables suitable for further analysis are occupational skill level, business size, reason for dismissal and gender in relation to their influence on the arbitration outcome. Additional descriptive research could also be conducted in terms of conducting international comparatives with a view to identifying the outputs that different legislation/arbitration frameworks produce for workers and employers.

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Howe, Joanna. "The evolution and development of unfair dismissal law in Britain and Australia". Thesis, University of Oxford, 2011. http://ora.ox.ac.uk/objects/uuid:bf2e363e-5c91-45a1-ae4d-f073633f35c6.

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This work explores the evolutionary dynamic exhibited by the trajectory of unfair dismissal law in Britain and Australia. A different comparative evolutionary dynamic is observed in the phase leading up to the enactment of a statutory unfair dismissal scheme and in the period subsequent to enactment. It is argued that the shared common law origin of the legal systems of Britain and Australia masks significant divergence in their respective labour law traditions. Whilst collective laissez-faire in Britain, and conciliation and arbitration in Australia both sought to secure industrial peace, these divergent traditions operated in a manner particular to their jurisdiction in constraining the evolution of a statutory unfair dismissal law. It was only when these traditions underwent severe economic, social and political challenges that they faced a crisis of legitimacy and new ideas for labour law were canvassed. Although occurring over twenty years apart, the breakdown of Britain’s and Australia’s labour law traditions saw the juridification of domestic labour law, with a central reform being the inception of a statutory right protecting against unfair dismissal. Despite emerging from divergent legal traditions and according to different timeframes, the trajectory of unfair dismissal law subsequent to its enactment was to converge upon a common theme of peeling back the statutory superstructure in favour of localised and alternative dispute resolution. Although these developments are diachronistic across the two jurisdictions, this evolutionary dynamic of divergence giving way to convergence is revealing of a high degree of path dependency as between the unfair dismissal laws of Britain and Australia.

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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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Blignaut, Colleen. "Effectiveness of conciliation as an alternative dispute resolution process in unfair dismissal disputes". Diss., University of Pretoria, 2018. http://hdl.handle.net/2263/65692.

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In its preamble, the LRA provides that one of its aims is to change the law governing labour relations by, amongst other means, promoting simple procedures for the resolution of labour disputes. The Commission for Conciliation, Mediation and Arbitration (hereafter referred to as the CCMA) was created during 1996.1 It was expected that the CCMA would have to deal with an average of 30 000 referrals nationally per year. However, it quickly became apparent that this was a gross underestimation. During the 1997/1998 reporting period, the CCMA reported that it had received 67 319 referrals. The number of referrals has continued to increase yearly, with 154 279 referrals having been received during the 2010/2011 reporting period. This trend has continued, with the CCMA for the reporting period of 2015/2016 reporting 179 528 referrals.2 The process of the referral of a dispute to the CCMA or any other dispute resolution council was engineered to be uncomplicated and cost efficient for the CCMA to be accessible to everyone, and to give effect to Section 23 of the Constitution.3 The CCMA strives for any person who has a labour dispute to be able to refer the matter to the CCMA, without requiring costly legal representation. However noble the intention for free and easy access to the CCMA may be, the limited consequences associated with dishonesty or abuse in the forum has resulted in cases of misuse by employees and reluctance by the employer to participate in pre-arbitration processes.4 In order to give effect to the constitutional ideologies through the concialtion and making the referral process of dismissal law available to dismissed employees free of charge5, the CCMA has provided a forum for employees to ventilate disputes with their employers on an equal footing. To reach a mutually acceptable agreement between the parties. However honourable the intentions of the CCMA may be in providing and facilitating the process of conciliation in disputes of alleged unfair dismissal, it is not immune to being abused by parties who may not have the best of intentions when referring a dispute to the CCMA in the first place. This study aims to identify the possible short comings of the concialtion process at the CCMA by comparing it to a similar process used in the United Kingdom provide proposed recommendations for conciliation in disputes based on allegations of unfair dismissal, remain effective in South Africa.
Mini Dissertation (LLM)--University of Pretoria, 2018.
Mercantile Law
LLM
Unrestricted

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Head, Jeremy Alexander. "The impact of individual employment legislation on the employment relationship in the hospitality industry". Thesis, Manchester Metropolitan University, 2000. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.311073.

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This thesis examines the impact of individual employment protection legislation on the employment relationship in the hotel and catering industry (HeI), exactly the type of industry whose workers the employment law was intended to protect. It begins \\-ith a review of the potential effects of employment legislation on the employment relationship. It then analyses and evaluates the practical effects of individual employment legislation in hotels and catering from relevant case law. and the workings of the Industrial Tribunal system, identifying that unfair dismissal is the most important aspect. In order to ask to what extent dismissal law constrains the managerial prerogative, in the light of recent socio-economic and legal changes, employer experience of, and attitudes to existing employment rights and the Industrial Tribunal system are assessed. This is achieved by means of a postal questionnaire to employers in the industry. This is then augmented by follow-up semi-structured interviews with the employers. The legislation was found to have more effect on employer behaviour than is apparent prima facie. The ways in which many employers seek to circumvent the provisions of the law provides evidence of this. The high rate of dismissal in the industry shows, however, that employers are not constrained from using dismissal. Rather, the manner of making dismissals is more formalised due to the threat of tribunal actions. The actual incidence of dismissal could well be far higher since it appeared that some employers did not regard the termination of employment of an employee without the service qualitication as a dismissal. Tribunal actions themselves are quite uncommon, given the high incidence of dismissal. The low success rate for employers at tribunals, and the acknowledgement by employers that procedural requirements were often not met during disciplinary matters, suggests that arbitrary management practice is still widespread.

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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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Al, Kiyumi Fawzi Mubarak. "Unfair dismissal study in Omani labour law with emphasis on the relevance of Shari’a". Thesis, University of Bedfordshire, 2013. http://hdl.handle.net/10547/293775.

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The aim of this research is to investigate the implications of unfair dismissal within the boundaries of Omani labour law with particular relevance to the role of Shari’a. Shari’a itself does not provide a legal code, contract law, or a law of tort as yet but it does provide examples of applicable rules, supported with analogies, to deal with employment. The basic principles of forming a contract in Omani Commercial Law; English Law and Shari’a are similar; however, they differ in application. Likewise, the principles of the employment contract are similar with a few differences being seen in implementation; specifically with regards to unfair dismissal issues. This research used a qualitative approach that has enabled the generation and analysis of data from multiple sources including literature review, semi-structured interviews, court cases, Shari’a implied employment contract principles as found in the Qur’an, the Sunnah and relevant Islamic texts. The research shows that the main reasons for employee dismissal can be categorised into: poor performance, disobedience regarding the contractual rules and regulations, absenteeism, aggressive behaviour and an extreme critical attitude in the work-place. From the employee’s perspective, the main reasons for filing cases at Oman Courts were to seek justice, to obtain fair compensation or to highlight the moral values that form the Islamic code of practice. In contrast the employers considered seeking financial gain and revenge as the motivating factors for employees for filing court cases. There obviously is a mismatch to the reasons by each side and the key findings from this research suggest that there is a modest impact of the legal aspects of Shari’a on the Omani Law of Contract and the Employment Law though it is normally conceived by the public that Shari’a is the fundamental law that governs all aspects of muslim life. There needs to be an overwhelming expectation and requirement to develop procedures in the Omani Employment Law that expedite the process of dealing with dismissal cases and the propositions of establishing an arbitration committee may seem to be a way forward. In addition, the establishment of a Labour Court is paramount as at present the employment cases are heard in the Commercial Courts. This will align with the approach taken in the English system where the Employment Tribunals and the Employment Appeal Tribunal oversee cases and minimize delays in achieving justice. There is also a strong argument that there needs to be a review of Article 40/35/2003 that deals with employer rights to dismiss the worker without prior notice in order to establish a solid foundation for justice in the Sultanate of Oman. Unfair dismissal is a phenomenon that impacts on the employee, the employer, the employee’s wider family network and society. This study provides an in-depth understanding and insight into these impacts and into the capacity of Shari’a impact to address modern employment issues in relation to the labour laws and secular laws being used in Oman today.

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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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Marinescu, Ioana Elena. "The economics of unfair dismissal in the United Kingdom, and other topics in public policy". Thesis, London School of Economics and Political Science (University of London), 2007. http://etheses.lse.ac.uk/1978/.

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Workers and firms face substantial uncertainties about their prospects in the labor and product markets. The first three chapters of this thesis analyze how firing costs affect firms' behavior and workers' outcomes in the face of uncertainty about match quality and changing economic conditions. In the final chapter, I show how macroeconomic policy can reduce the risks associated with changing economic conditions. First, I examine a 1999 UK reform that lowered from two years to one year the tenure necessary for a worker to be able to sue their employer for unfair dismissal. After the reform, we observe a significant decrease in the firing hazard for workers with zero to two years tenure relative to the control group, and no overall increase in unemployment. Using a simple model based on the assumption that firms learn about match quality over time, I show that the empirical results are consistent with increased match quality after the reform. Second, I generalize the simple model developed in the first chapter. In particular, I allow for match quality to change over time. The model is useful to understand and predict how firing costs and various forms of uncertainty affect the separation hazard. Thirdly, I analyze the implementation of unfair dismissal legislation by judges in the UK. Judges seem to compromise between workers' and firms' interests. If workers are unemployed, judges decide more often in their favour when unemployment rates are higher. The reverse is true when workers have found a new job. Finally, in work co-authored with Philippe Aghion, we examine whether the government borrowing and spending more in recessions can increase growth by relaxing economic agents' credit constraints. Using a panel data of OECD countries, we find that indeed countercyclical public debt policy is more growth enhancing when private credit is less abundant.

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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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Ndobela, Remember Kanego. "Compensation as a remedy for unfair dismissal : a comparison of South African and Australian labour law". Thesis, University of Limpopo (Turfloop Campus), 2012. http://hdl.handle.net/10386/881.

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Thesis (M.Law (Labour Law)) --University of Limpopo, 2012
This research is titled ‘Compensation as a remedy for unfair dismissal, a comparison of South African and Australian labour law’. The Australian labour law systems and structures share some important features with South African labour law jurisprudence pertaining to the awarding of compensation as a remedy to unfairly dismissed employees. Some of these important features include the method of calculating compensation and the existence of a compensation cap. The research sets out, amongst other things guidelines or directives to be followed by adjudicators of unfair dismissal dispute in South Africa when awarding compensation, and highlight comparative analysis of South African and Australian labour law approach on compensation as a remedy for unfair dismissal.

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James, Ncumisa Portia. "The relationship between an automatically unfair dismissal in terms of section 187(1)(c) of the labour relations act and a dismissal for operational reasons". Thesis, Nelson Mandela Metropolitan University, 2009. http://hdl.handle.net/10948/1034.

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Common law does recognise the concept of dismissal based on operational requirements. It recognises dismissals that are based on breach of expressed or implied terms of contract of employment. The concept of operational requirements has its roots in the Labour Relations Act 28 of 1956. This Act recognised termination of employment of a number of employees due to ability, capacity, productivity, conduct and operational requirements and needs of undertaking industry trade or occupation of the employer as legitimate. Under the 1956 LRA, employers were allowed to dismiss employees if employees refused to accept the proposed change to conditions of employment. The dismissal is called lock-out dismissal. This kind of dismissal entitled employers to dismiss employees on condition that the dismissal was temporary and the workers would be re-employed when they agree to the demands of the employer. After the contract of employment was terminated between the employer and employees, the employer was allowed to implement the changes using scab labour. The 1995 Labour Relations Act introduced section 187(1)(c) that was intended to re-enforce the abolishing of the lock-out dismissal. This section strictly forbids the dismissal of employees in order to compel them to accept demands of the employer in matters of mutual interest. Such dismissals are regarded as automatically unfair. In terms of section 64(4) of the 1995 LRA employers are not permitted to unilaterally effect changes to employees’ terms and conditions of employment. They are required to seek and obtain consent of the affected employees. If employees refuse to accept the proposed changes, the employer can use lock-out as defence. Firstly, the employer can initiate lock-out until employees accede to its demand. Secondly, the employer can lock-out employees in response to the notice of strike or strike of the employees. The employer can use scab labour during this lock-out period. Unlike the lock-out dismissal, lock-out under the 1995 LRA does not include termination of contract of employment. iv In contrast, employers are allowed to dismiss employees who refuse to agree to change to their terms and conditions of employment on the ground of operational requirements provided a fair procedure is followed. This reason for dismissal is not viewed by the courts as a dismissal to induce employees to accept the demand of the employer. The question that this study seeks to examine is the relationship between automatic unfair dismissal in terms of section 187(1)(c) of the Labour Relations Act and dismissal for operational requirements. A dispute between the employer and employees regarding change to terms and conditions of employment is a mutual interest dispute; and it therefore falls under collective bargaining. The same dispute can easily fall to rights dispute, because the reason for the proposed change to the production system and demand to the pursuit of improved efficiency and better achievement of profit objective related to operational requirement. There is obvious overlap between operational requirements and wage work bargaining. In Schoeman v Samsung Electronics, the court held that the employer is entitled to run its business in a prosperous way and this may entail affecting changes to terms and conditions of employment when the market forces demand so. In Mwasa v Independent Newspapers, the court held that change to terms and conditions of service of an employee can be proposed as a way to avoid retrenchment; dismissal of employees for refusing to accept the change is not covered by section 187(1)(c). In Fry’s Metals v Numsa, the court has rejected the notion that there is tension between section 187(1)(c) and section 188(1)(a)(ii). The court held that section 186(1) refers to dismissal or termination of workforce with the intention to end the employment contract and replacing the workforce with employees that are prepared to accept terms and conditions of employment that suit the employer’s operational requirements. The court argued further that the meaning of dismissal should be a v starting point when one wants to dispute the two sections. On the other hand, section 187(1)(c) was effected with a certain purpose, which is to prohibit the employer from dismissing employees in order to compel them to accept its demand in dispute of mutual interest. The court held that the dismissal in this case was final. The employer dismissed its employees because it did not need them anymore. This dismissal is in accordance with section 186(1). The court rejected that operational requirements is confirmed to saving business from bankruptcy. The court argued that the principle includes measures calculated to increase efficiency and profitability. The employer can dismiss and make more profit.

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Sipuka, Sibongile, i 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.

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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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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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Woolias, David. ""To the advantage of all concerned" : practical and principle-based arguments for a revised remedy regime for unfair dismissal in Australia". Thesis, University of British Columbia, 2012. http://hdl.handle.net/2429/42181.

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Among the extensive literature on the merits of unfair dismissal laws, comparatively little attention has been paid to the key issue of which remedies, and in what form, can best give effect to those laws. In order to address this gap in the literature, this thesis examines remedies for unfair dismissal through an empirical study of all unfair dismissal decisions handed down in Australia during the 2010-2011 financial year by the Australian federal employment tribunal. This thesis also contains a detailed analysis of the theoretical underpinnings of the current remedy regime for unfair dismissal in Australia – which comprises reinstatement and monetary compensation subject to a statutory cap – to assess the merits of those remedies from the perspective of principle. The results of the analysis reveal some troubling issues of both practice and principle. First, there is a significant divergence between the law as it appears on the statute books in relation to remedies for unfair dismissal (which emphasises reinstatement and making whole the loss suffered by the unfairly dismissed employee) and the law as it actually operates in practice (in which reinstatement is awarded infrequently and the quantum of compensation ordered in lieu of reinstatement is generally small). Second, this problem is particularly acute for self-represented applicants. An economic decision-making model is used to show that, in particular, it is likely that this problem causes self-represented applicants to reject settlement offers which they should rationally accept. Third, neither compensation nor reinstatement is capable of fully realising the purposes that the remedy regime is designed to achieve. In particular, the availability of the remedy of reinstatement against the will of an employer is unsupportable in principle and fails to afford employers a “fair go all round”. The thesis concludes by proposing that the remedy regime for unfair dismissal in Australia be modified to provide only the remedy of compensation, subject to a significantly larger statutory cap than that which presently applies. It is likely that similar modifications would benefit other jurisdictions around the world, such as Canada and the United Kingdom, which have similar statutory unfair dismissal laws to Australia.

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James, Caira Grace. "Pregnancy related unfair dismissal litigation at employment tribunals in England and Wales : a study of decisions registered during 1996 and 1997". Thesis, Aberystwyth University, 2000. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.410725.

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

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

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Delport, Gerhardus Jordaan. "The constitutionality of Section 14 of the Employment of Educators Act". Thesis, Nelson Mandela Metropolitan University, 2017. http://hdl.handle.net/10948/15479.

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The Department of Education, as part of the public sector, employs educators in terms of the Employment of Educators Act (EEA),1 whereas the rest of the public servants are employed in terms of the Public Service Act (PSA). If an educator is absent for more than 14 consecutive days without the permission of the employer, the educator is deemed to be discharged according to section 14(1)(a). With regard to the rest of the public sector, a similar provision is put in place, where section 17(5)(a) provides for the discharge of a public officer who is absent from his / her duties without the permission of the Head of Department for a calendar month (31 days). Sometimes long absent periods are caused by personal circumstances of the employee which are unforeseen. If the employee reports for duty after the dismissal, section 14(2) of the EEA provides that, the employee may be reinstated by the employer on good cause shown, after a post-dismissal hearing. If an employee in the public sector is discharged based on these deeming provisions, the employment is terminated by the operation of the law and there is no dismissal. This means that the employer is not responsible for the termination, meaning than there exists no option to review the dismissal. The supreme law of the Republic of South Africa (RSA) is the Constitution of the Republic of South Africa (the Constitution).5 The question at hand is whether the deeming provision of section 14 of the EEA6 is constitutional. The Labour Relations Act (LRA) goes further by stipulating that every person has the right not to be unfairly dismissed, and not to be subjected to unfair labour practice.7 Section 23 of the Constitution provides that everyone has the right to fair labour practices. Furthermore, section 33 of the Constitution provides for fair administrative action. The question is whether these provisions, dealing with the dismissal of educators, limit the employee’s constitutional right to a fair labour practice.

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Bester, Viglia Elizabeth. "Unfair discrimination based on pregnancy within the mining industry / Viglia Elizabeth Bester". Thesis, North-West University, 2012. http://hdl.handle.net/10394/8646.

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This dissertation scrutinises the impact of pregnancy challenges on the mining industry, taking the right of equality and unfair discrimination into consideration. Pre-employment pregnancy testing is an acceptable practice within the current legal framework whereby the MHSA and section 26 of the BCEA place an obligation on the employer to protect employees before and after the birth of a child. This section provides that no work may be performed by an employee that is hazardous to her health or the health of her unborn child. The dissertation synthesises and reviews the practical implications of pregnancy and related challenges of underground employees and all the problems surrounding this matter are dissected. The liability of the employer and the failure of the employee to report her pregnancy status to the employer as soon as she becomes aware of it, can be justifiably treated as misconduct. The justification of the dismissal of an underground employee based on pregnancy is confirmed in light of the legislative obligations placed on the employer. Current legislative measures, which justify an automatically unfair dismissal due to pregnancy, cannot be implemented without considering the Constitution and the employers’ right to economical sustainability. A literature study will be done using current and relevant sources such as books, legislation, court decisions, conference papers and journal articles. Methodological issues will also render it necessary to weigh up different rights through literature sources.
Thesis (LLM (Labour Law))--North-West University, Potchefstroom Campus, 2013

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Matlou, Eliah Pheagane. "An analysis of reinstatement as a remedy to unfair dismissal". Thesis, 2013. http://hdl.handle.net/10386/1026.

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Thesis (LLM. (Labour Law)) -- University of Limpopo, 2013
Reinstatement is one of the remedies for unfair dismissals. Dismissed employees have a recourse to approach the Commission for Conciliation, Mediation and Arbitration1 or labour courts to seek reinstatement. The arbitrator or the courts have a discretion to order reinstatement based on the facts of the case, sometimes retrospectively. Retrospectivity is a discretionary matter in the hands of the courts and therefore the courts of law have been inundated with cases where the employers wanted to limit the retrospectivity of the application of reinstatement as a remedy for unfair dismissals. On the other hand, the dismissed employees would want the court to extend the application. In other circumstances the court would award compensation instead of retrospective reinstatement like where reinstating the employee is just practically impossible or the employee himself does not want to be reinstated. The Labour Relations Act2 has limited the power or discretion of the employers to dismiss employees at will. Section 185 of the LRA provides that there should be fair and valid reason for dismissals. The employer would have to prove the reason for dismissal for it to be valid. On the other hand, the case law also has established that where there is unfair dismissal, the arbitrator or the court must give the primary remedy in favour of the employees which is to reinstate them in their work. Such reinstatement would have the effect as if the employee was never dismissed in the first place.

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Venter, Hendrik Johannes Tjaart. "The juridical basis of the statutory claim for compensation in unfair dismissal cases". Diss., 2016. http://hdl.handle.net/2263/56990.

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A highly efficient, mass dispute resolution system has been established in South Africa with the implementation of the Labour Relations Act 66 of 1995 (hereafter the LRA 1995 ) two decades ago. The remedies of reinstatement, re-employment and compensation lie at the heart of this system. The compensation claim in terms of the LRA 1995, on which this study focuses, is related to a history of preceding common-law and statutory legal development, including the development of labour law in comparable foreign jurisdictions. However, according to sections 193(1) and 194(1) of the LRA 1995, the determination of compensation is left to the blanket discretion of CCMA arbitrators who have to determine compensation for substantively and procedurally unfair dismissals on the basis of what they perceive to be just and equitable in all the circumstances of the individual case. Significantly, there are no further standards or frameworks to be found in the statute and it is not strange that questions are being asked, both in academic quarters and from the bench, about the consistency and accuracy of compensatory awards. This dissertation comprises an analysis of the common-law action for breach of contract in unlawful dismissal cases, the statutory claim for compensation for unfair dismissal in terms of the Labour Relations Act 28 of 1956, the statutory claim for compensation for unfair dismissal in terms of the LRA 1995 and similar common-law and statutory remedies in the labour law of the United Kingdom. The objective is to form an understanding of the nature of these remedies and how it relates to the process of determining compensation. On the basis of the preceding analysis, the need for legislative review of the compensation claim in terms of the LRA 1995 is then demonstrated. Pursuant to recent case law, the jurisdictional overlap between the statutory claim and the common-law action for breach of the employment contract in unfair dismissal cases is also addressed.
Mini Dissertation (LLM)--University of Pretoria, 2016.
tm2016
Mercantile Law
LLM
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Risinamhodzi, Rosemary. "Dismissal for exercising statutory rights". Thesis, 2012. http://hdl.handle.net/10386/793.

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Thesis (LLM. (Labour Law)) -- University of Limpopo, 2012
Since the advent of constitutional democracy, there has been a steady growth in the volume of employment and labour protection legislation.1 More than a decade following the enactment of the new labour code has witnessed an avalanche of decisions of courts and arbitration awards of labour adjudicatory tribunals.2 Many of them involve unfair dismissals generally, unfair suspensions,3 residual unfair labour practices,4 disputes over promotion hinging on affirmative action, employment equity and unfair discrimination,5 the recurrent problem of jurisdiction,6 and review of arbitration proceedings.7 While wage and disputes8 on the one hand, and strikes9 on the other will always feature as perennial events in the labour-management calendar, truly important interface over several years has been dismissal of employees for automatically unfair reasons. 1 See eg, Labour Relations Act 66 of 1995; Basic Conditions of Employment Act 75 of 1997; Employment Equity Act 55 of 1998; Educators Employment Act 76 of 1988; Promotion of Administrative Justice 3 of 2000; Protected Disclosures Act 26 of 2000; Public Service Act (Proc 103 of 1994) Skills Development Act 97 of 1998; Skills Development Levies Act 9 of 1999; Unemployment Insurance Act 30 of 1966; The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. 2 See generally; Zondo, R ‘The new Labour Courts and labour law: The first seven months of the new LRA’ (1998) 19 ILJ 686; Wallis, M.J.D. ‘The new era – How decisive is the break from the past (1999) 20 ILJ 902. 3 Ngwenya v Premier of KwaZulu-Natal [2001] 8 BLLR 924 (LC); MEC for Tourism Affairs: Free State v Nondumo & others (2005) 26 ILJ 1337 (LC); SAPU & another v Minister of Safety & Security & another (2005) 26 ILJ 524 (LC). 4Department of Finance v CCMA & others (2003) 24 ILJ 1969 (LAC). 5 See eg: Minister of Finance & another v Van Heerden (2005) 26 ILJ 1593 (CC). For a detailed discussion: Zondo, R ‘The new Labour Courts and labour law: The first seven months of the new LRA’ (1998) 19 ILJ 686; Wallis, M.J.D. ‘The new era – How decisive is the break from the past (1999) 20 ILJ 902. 6 See eg: Old Mutual Life Assurance Co SA Ltd v Gumbi (2007) 28 ILJ 1499 (SCA). See also Pretorius SC, P ‘A dual system of dismissal law: Comment on Boxer Superstores Mthatha & another v Mbenya (2007) 28 ILJ 2209 (SCA) (2007) 28 ILJ 2172; 7 See generally Carephone (Pty) Ltd v Marcus NO & others1999 (3) SA 304 (LAC); Sidumo & another v Rustenburg Mines Ltd & others (2007) 28 ILJ 2405 (CC). 8 See generally, Du Toit, D ‘What is the future of collective bargaining (and Labour Law) in South Africa?’ (2007) 28 ILJ 1405; Landman, A ‘The duty to bargain – an old weapon pressed into service’ (2004) 25 ILJ 39. 9 Modise v Steve’s Spar Blackheath (2000) 21 ILJ 519 (LAC); PSA v Minister of Justice & Constitutional Development & others [2001] 11 BLLR 1250 (LC). See also Myburgh, JF ‘100 years of strike law’ (2004) 25 ILJ 962. 8 In pith and substance, the study concerned with dismissals that undermine the fundamental values that labour relations community in our country depends on to regulate its very existence. In the first part of the study, the constitutional and statutory framework will be briefly considered. An early appreciation of the constitutionalisation of the right to fair labour practices will provide a point of reference for evolving contemporary labour law corpus on automatically unfair dismissals. The second part takes a frontal examination of novel questions of constitutional vintage concerning automatically unfair dismissals. In turn, this raises questions of dismissals for exercising statutory employment rights. The other aspects are instances of employee victimisation resulting from lodging a grievance, protected disclosures, as well as trade union activities. Also arising are dismissals that can be ascribed to unfair discrimination. While the first part of this study concentrates on those situations where the employer has victimised and/or dismissed for exercising statutory rights, part three examines that question which has vexed the Labour Court, Labour Appeal, and to a lesser extent the Supreme Court of Appeal in recent times, the intersection between automatically unfair dismissals on the one hand, and corporate restructuring, on the other. In effect, the contentious issues naturally call for discussion: the uneasy relationship between corporate restructuring and collective bargaining, dismissal of protected strikers for operational reasons, dismissals in support of employer’s demands as well as dismissals of transferred employees consequent to transfer of undertaking. Before moving onto the heavyweight topic of automatically unfair dismissals, it is perhaps appropriate at this stage to reflect on the constitutional and statutory framework underpinning the Labour Relations Act 66 of 1995.

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

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LL.M
The provisions of South Africa’s law on dismissal based on operational requirements are frequently relied on by employers who dismiss employees to further various objectives. Against this background, this dissertation critically analyses the law providing for employers to rely on their operational requirements as a basis for fair dismissal, and the legal principles on selecting employees for dismissal based on operational requirements. As part of this analysis, the approach in South Africa is compared with the approach in Germany, the United Kingdom and Australia. The analysis is based on a critical literature study that includes a consideration of the relevant legislation, treaties, conventions, directives, case law, recommendations, textbooks, journal articles and statistical sources. This dissertation draws broad conclusions regarding the contents, effects and shortcomings of the aspects of South African law on dismissal based on operational requirements that fall within its scope. In broad terms, this dissertation finds that the conceptual model underpinning the South African regime on dismissal based on operational requirements, is intrinsically sound, but that certain aspects require reform. It finds further that South Africa’s law on dismissal based on operational requirements generally provides employees with a relatively high degree of employment security, and severely limits managerial prerogative. This dissertation concludes that the primary areas requiring reform relate to the test for substantive fairness that does not include a proportionality analysis to weigh up the competing interests of the employer and the employee(s), and the requirements regarding selection criteria that fail to include consideration of the impact of dismissal on individual employees and their dependents. This dissertation makes proposals for reform in these areas.

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Carvalheira, Raquel. "Depression, dismissals and disability: depression is increasing in the South African workplace. Do the Labour Relations Act's dismissal categories provide depressed employees with adequate protection from unfair dismissals? [...]". Thesis, 2012. http://hdl.handle.net/10539/11065.

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Mbilinyi, Abel Jeru. "Protection against unfair dismissal of employees living with HIV/AIDS in the workplace: a comparative study". Diss., 2008. http://hdl.handle.net/10500/2321.

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

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

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Torul, V. P. "The Mauritian law of procedural fairness within the context of dismissal for misconduct : a comparative study with the South African doctrine of unfair labour practice". Thesis, 2001. http://hdl.handle.net/10413/5238.

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The main premise of this treatise is to discuss the Mauritian Law of Procedural Fairness within the context of Dismissal for Misconduct: A comparative study with the South African Doctrine of unfair Labour Practice. It analyses in detail the types of misconduct that eventually leads to the dismissal of an employee. The dismissal has not only to be substantively fair but also procedurally fair. To support the views expressed in the research, reference has been made to labour law cases decided mainly in Mauritius and South Africa. There are, however, references to other jurisdictions such as India, England, Australia, Namibia. The major constraint that the researcher encountered was the unavailability of decided cases referred from the Industrial Court of Mauritius. Most of the cases referred to in the Mauritian context are the Supreme Court decisions on dismissals due to misconduct. Thus for lack of relevant cases in Mauritius, there is a heavy reliance on cases decided in South Africa and other jurisdictions. These references have constructively enhanced the legal dimension of the topic under discussion.
Thesis (LL.M.)-University of Durban-Westville, Durban, 2001.

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

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Jansen, van Rensburg Lara. "Intolerable conduct in a constructive dismissal : an exploration of case law dealing with intolerable conduct". Thesis, 2012. http://hdl.handle.net/10413/9824.

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This paper focuses on the issue of constructive dismissal in terms of s186(e) of the Labour Relations Act 66 of 1995 which defines dismissal to include circumstances where an employee resigns because the employer has made continued employment intolerable. The purpose of this paper is to explore and describe case law on this issue and to consider what type of conduct has been regarded as intolerable by the courts in order to determine whether or not a case for constructive has been met.
Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2012.

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Baběrad, Jan. "Neplatné a zdánlivé skončení pracovního poměru ze strany zaměstnavatele". Master's thesis, 2020. http://www.nusl.cz/ntk/nusl-436250.

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71 Invalid and Apparent Termination of Employment by the Employer Abstract This diploma thesis deals with an everlasting issue: invalid and apparent termination of employment by the employer. The text of the thesis is divided into five chapters, further segmented into subchapters, some of these consisting of even lower level chapters. The first chapter covers the historical development of labor law and its separation from civil law into a separate branch of law with its own code. The following chapter defines the basic legal concepts, which are employment and legal transaction, as well as the invalidity and appearance of legal transactions. The second chapter also contains a reflection on the meaningfulness of the legal institute of appearance of a legal transaction. In the third chapter are analyzed specifics of the invalidity of legal transactions in labor law and the consequences of invalidity of the employment termination. The core of the diploma thesis is formed by the fourth and fifths chapters, containing a non- exhaustive list of reasons for invalidity and apparent termination of employment by the employer and a more detailed definition of these reasons, including a thorough analysis of some contentious issues. It was also necessary to cover the ineffective delivery of a document which leads to the...

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Khoza, Emmanuel Mduduzi. "Natural justice for employees : the problem of judicial review in employment relations". Thesis, 1995. http://hdl.handle.net/10413/5702.

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Work plays a dominant role in modern society. It is through work that the economic well being of any society is sustained. Workers who perform various tasks contribute to the well being of society as well as to their betterment as individuals. Thus paid employment has assumed a prominent role in modern society. It is an incentive on individuals to contribute to socio-economic welfare, while their needs and aspirations as individuals are also satisfied. But for an orderly society to exist, there has to be a subjection of some members of society by others, a division between those who have the social mandate (express or tacit) to exercise power for and on behalf of others. Thus work relations comprise those who exercise managerial power(employers) and those subject to managerial power (employees). In broader political relations, the task of social management is performed by the state. However those exercising managerial functions do not have unfettered discretion. Power should be exercised within acceptable social limits and be used to achieve realistic social goals. Thus it has been felt that the laws should always ensure that the incumbents of governmental power do not exceed the scope of their power or abuse it. Hence the process of judicial review. This gives the courts the power to review the decisions of administrative authorities in order to protect individual citizens who might be adversely affected by bad administrative decisions. This analogy has been applied in employment relations in order to protect individual employees against arbitrary dismissal by employers. It has been held that an employee cannot be dismissed without a valid reason and in compliance with a fair procedure. The question asked here is whether this is sufficient to ensure substantive employment protection. Is judicial review really effective in employment relations? It is observed that judicial review in labour law has many limitations as compared to the administrative law context. First, it comes face to face with the problem of the public/private law distinction, which holds the employment relationship to be fundamentally a private relationship between the employer and employee. This complicates the application of public law remedies in supposedly private relations, where the parties are assumed to have freedom of contract. The second problem involves the debate as to whether the state should impose many restrictions on the modern corporation or there should be minimal state intervention to allow the corporation to function in accordance with the labour market demands and economic necessity. It is concluded that the law of unfair dismissal has consequently been put in a dilemma. While the need has been perceived to curb the arbitrary use of managerial power by employers, substantive employment protection can hardly be guaranteed. The problem seems to be that of striking the balance between the interests of employees, employers and society at large.
Thesis (LL.M.)-University of Natal, Pietermaritzburg, 1995.

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Naidoo, Tamar Natalie. "Fair dismissals : a critical analysis of the 'appropriateness of sanction' in light of recent developments". Thesis, 2012. http://hdl.handle.net/10413/9823.

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Kone, Mmberegeni Kingshald. "The termination of the employment relationship on the grounds of the employee's HIV status". Diss., 1995. http://hdl.handle.net/10500/17114.

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A substantial number of employees in South Africa may soon be out of work as the result of their HIV-positive status. The dismissal of an infected employee may be motivated by the fact that he is considered to be incompetent or incapable of doing the work for which he was employed. Customers and fellow employees may refuse to deal with an infected employee, with the result that the employee is dismissed for economic reasons. The nature of the undertaking's activities may be such that the presence of an infected employee constitutes a health risk. For the purposes of carrying out his duty to create and maintain safe working conditions, the employer dismisses the employee. The employer may even force the infected employee to resign. Measures should be taken to improve the situation of infected employees. They include educating employers and employees about the transmission of the human immunodeficiency virus.
Mercentile Law
LL. M.

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Monyakane, ’Mampolokeng ’Mathuso Mary-Elizabeth. "The constitutionality of employers' investigative procedures and disciplinary hearing processes with specific reference to dismissal of employees on the basis of criminal misconducts in South Africa". Thesis, 2020. http://hdl.handle.net/10500/26956.

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This Doctoral thesis entitled the Constitutionality of Employers' Investigative Procedures and Disciplinary Hearing Processes with Specific Reference to Dismissal of Employees on the Basis of Criminal Misconducts in South Africa, focusses on individual labour law principles of fair labour practices entrenched in section 23(1) of the Constitution. The thesis deals with fairness in situation where an employee who is suspected of committing a criminal act is investigated and subsequently goes through a disciplinary hearing for dismissal. It determines the extent to which an employee’s criminal guilt is decided before dismissal. As such, the thesis is based upon South African judicial interpretation of the right to fair dismissal. In the process the thesis examines the application of principles informing the employer’s duty to provide fair reason concerning the dismissal of employees criminal suspects. In examining if employers observe constitutional transformative objective when conducting criminal investigations and disciplinary hearings - the thesis reviews the extent to which the employer respects constitutional rationales of equity based on the principles of natural justice. These natural justice principles are the basis upon which section 23(1) fairness is founded. Section 23 (1) is implemented through the LRA provisions. The thesis then concludes that, only one principle of natural justice - audi alteram partem is respected within employer flexibility-based fairness while the other principle - nemo judex in propria sua causa is ignored. It is this denial that causes serious procedural challenges in the quest for equity intended in section 23(1) fair labour practices. It is upon these foundational equity concerns that this thesis opposes the flexibility in employer’s criminal investigations and disciplinary hearing processes entrenched in item 4 (1) of Schedule 8 of the LRA fair procedure for dismissal of employees suspected of criminal acts. The thesis interlinks labour law and criminal law to advocate for the missing constitutionally justiciable fairness for employees who have committed criminal misconducts. It argues that the current judicial interpretation of labour law fairness is based upon the principle of flexibility underlying dismissals, asserting that fairness based on flexibility breeds informal procedural processes which exempt employers from observing crucial constitutional fairness principles expressed through proportionality-based prescripts. The thesis concludes that the practice of including the right against self-incrimination in employment law, done in other common law countries be introduced into the South African labour law through section 39 of the Constitution so that the identified procedural challenges are regulated.
Mercantile Law
LL.D.

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Eden, Dzulzalani. "Workplace dispute resolution in Malaysia : investigating conciliation claims for reinstatement". Thesis, 2012. https://vuir.vu.edu.au/22342/.

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Workplace disputes are best resolved in-house and this principle underlies dispute resolution regulations and legislation in countries such as the UK, Australia and New Zealand. Only after a failure to resolve a matter at workplace level do disputants have the option of referring their conflict to conciliation at an external tribunal in these countries. In turn, conciliation settlement rates are high, leaving only a residual need for arbitration services. Whilst Malaysia has a similar dispute resolution system to these countries, which share the same heritage of British law, its workplace dispute resolution system is fraught with problems. This thesis presents the first large scale study of workplace and tribunal level dispute resolution of claims for reinstatement in Malaysia. It addresses the key issues of why workplace disputes fail to be resolved in-house and then, why they fail to resolve at conciliation. The thesis probes into the reasons why there is a high rate of referral of claims for reinstatement which progress to arbitration, creating a severe case backlog for the Industrial Court.

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Potgieter, Hendrik Josephus. "Diensbeëindiging as deel van die uitsluiting in die Suid-Afrikaanse reg". 1996. http://hdl.handle.net/10500/15803.

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Text in Afrikaans
Summaries in English and Afrikaans
The statutory definition of the lock-out encompasses certain acts (inter alia termination of contracts of employment) which must be executed by the employer with a certain purpose. The Appellate Division has recently found that the employment relationship not necessarily terminates similarly to the common law contract of employment, but may subsist after termination of the contract of employment. The industrial court does not easily accept that it has been deprived of its unfair labour practice jurisdiction where terminations of employment take place in consequence of a lock-out. The motive of the employer seems to be decisive. In line with both the trend in first world countries and principles established by the courts in South Africa, the Constitution and especially recent labour legislation significantly curtail the bargaining power of the employer because it is progressively being believed that the employer has sufficient economic power to his disposal.
Die omskrywing van die uitsluiting in wetgewing omvat sekere handelinge {onder andere beeindiging van dienskontrakte) wat deur die werkgewer met 'n sekere doel verrig moet word. Die Appelhof het onlangs beslis dat die diensverhouding na beeindiging van die dienskontrak kan bly voortduur en nie noodwendig soos die gemeenregtelike dienskontrak ten einde loop nie. Die nywerheidshof aanvaar ook nie geredelik dat hy in geval van diensbeeindiging wat volg op 'n uitsluiting van sy onbillike arbeidspraktyk jurisdiksie ontneem is nie. Die motief van die werkgewer blyk hier deurslaggewend te wees. In lyn met sowel die ne1g1ng in eerstew~reldse lande, asook beginsels reeds deur die howe in Suid-Afrika gevestig, word die bedingingsmag van die werkgewer ingevolge die Grondwet en veral onlangse arbeidswetgewing betekenisvol ingekort omrede toenemend aanvaar word dat die werkgewer oor voldoende ekonomiese mag beskik.
Law
LL.M.

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Thejane, Lerato Hycenth. "The use of HIV testing in the workplace as the basis for possible unfair discrimination / Lerato Hycenth Thejane". Thesis, 2015. http://hdl.handle.net/10394/15954.

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Human immunodeficiency virus and acquired immune deficiency syndrome (hereafter HIV/AIDS) in South Africa are epidemic virus and disease respectively, item 1.1 of the EEA Code of Good Practice on Key Aspects of HIV/AIDS and Employment, 2000 states that HIV/AIDS are serious public health problems, which have socio-economic, employment and human rights implications on the society, employees inclusive. The Constitution of the Republic of South Africa, 1996, Employment Equity Act 55 of 1998, Labour Relations Act 66 of 1995 and Promotion of Equality and Prevention of Unfair discrimination 4 of 2000, international and regional instruments and standards provide protection to HIV positive employees in the workplace. Notwithstanding this plethora of legislation, employees are still faced with the problems of being stigmatised, unfairly discriminated against and ultimately dismissed from work for being HIV positive. Employees are subjected to HIV testing and the information about their HIV statuses is still being disclosed without their informed consent and their right to privacy and confidentiality may be violated. These possible violations of employees’ rights may affect the economy of the country. When employees are dismissed, the amount of production and profits for the employers decrease and as a result the government loses tax revenue, the unemployment and poverty rates increase. Hence it is imperative to investigate the problems of stigmatisation, unfair discrimination and dismissals in order to see to what extent are employees’ rights protected. There will be a comparative study in Canada which is experiencing the same problems as South Africa in order to find out how Canada can provide solution to South African problems.
LLM (Labour Law), North-West University, Potchefstroom Campus, 2015

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Molongoana, Henry Sifiso. "A critical evaluation of the protection of the rights of employees living with HIV/AIDS in the South African workplace". Diss., 2017. http://hdl.handle.net/10500/23682.

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People living with HIV/AIDS have the right to be employed as long as they are physically fit to do the work. The unfortunate situation now is that in many South African workplaces employees who disclose their HIV/AIDS status or who are suspected of living with the disease face backlashes from fellow employees and sometimes even from employers. No one should be discriminated against or be prevented from being employed or dismissed from employment purely on the basis of having HIV or AIDS. Any form of discrimination against employees living with HIV/AIDS constitutes a violation of their constitutional rights to among others human dignity, equality and fair labour practices. Discrimination may take the form of pre-employment HIV testing or a dismissal due to HIV positive status. This research looks at the protection given to employees living with HIV/AIDS in the South African workplaces and whether the protection is adequate or not.
Mercantile Law
LL. M.

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Maimela, Charles. "Legal issues relating to the treatment of persons living with cancer". Thesis, 2017. http://hdl.handle.net/10500/24490.

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Cancer is regarded as a global disease and one of the leading killer diseases in the world. The reason why cancer is so widespread and often misunderstood stems from multiple factors, namely, the lack of knowledge about cancer, unfair discrimination of persons living with cancer, inadequate or inappropriate treatment provided to patients, the stigma attached to cancer, misdiagnosis and late diagnosis of persons living with cancer, as well as the inadequate provision of screening programs to detect cancer at an early stage. The combination of these issues raises alarming medico-legal problems that merit further attention. The thesis will explore the origin, nature, philosophical and clinical aspects pertaining to cancer, as well as legal issues related to cancer and oncology. The study will conclude with recommendations aimed at mitigating and addressing the shortcomings that exist in the medico-legal framework. The study will also draw on a legal comparison of relevant South African, English and American laws and regulations. Since this thesis entails focussing on medico-legal principles, the study will draw on aspects of medical law, labour law, law of contract, law of delict, constitutional law and criminal law.
Private Law
LL. D.

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