Assessment of changes to Saudi Labour Law regarding unfair dismissal of employees

2020 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Meshal Nayef Alharbi
Keyword(s):  
Saudi Arabia ◽  
Current Approach ◽  
Labour Law ◽  
New Approach ◽  
Content Type ◽  
Unfair Dismissal ◽  
Feasible Alternative ◽  
The Right ◽  
Labour Disputes ◽  
Employee Dismissal

Purpose Saudi Arabia recently amended the Labour Law provisions governing the unfair dismissal of employees in the private sector. The previous version of the legislation, which had been in force for many years, had entitled employees to demand reinstatement or make a claim for fair financial compensation equal to the damages sustained. The recent amendments eliminated the right of a dismissed employee to seek reinstatement and also revised the rules relating to monetary compensation. The purpose of this paper is to critically analyse and evaluate the new approach, which has been criticized heavily. In addition, it suggests feasible alternative ways to handle unfair employee dismissal, which can be incorporated into the current Saudi Labour Law. Design/methodology/approach This paper presents an analysis of the existing approach to dealing with unfair employee termination in the Saudi Labour Law. It is based mainly on information collected from various legal materials, such as books, review of judgments issued by the Commission for the Settlement of Labour Disputes in Saudi Arabia and relevant Islamic rules. Findings The results of this examination clearly show that there are several flaws in the current approach to dealing with the issue of unfair dismissal of employees. To correct this situation, workable approaches have been suggested for possible consideration and incorporation into the Saudi Labour Law. Originality/value To the author’s knowledge, this is the first academic study to analyse the current approach to handling unfair employee dismissal in the Saudi Labour Law.

The labour disputes of Chinese posted workers in the B&R countries

2020 ◽  
Vol 43 (1) ◽  
pp. 209-225
Author(s):  
Dong Yan ◽  
Yixuan Wu
Keyword(s):  
Industrial Sector ◽  
Future Research ◽  
Research Approach ◽  
Labour Law ◽  
Chinese Enterprises ◽  
Content Type ◽  
Foreign Labour ◽  
Chinese Workers ◽  
Labour Disputes ◽  
Practical Implications

PurposeThis study aims to decrypt the efforts made by Chinese people's courts nationwide to protect the rights of Chinese posted workers in the Belt & Road (B&R) countries by investigating labour litigation cases with an extraterritorial application of Chinese labour law (under the “doctrine of overriding mandatory labour rules”).Design/methodology/approachThis study collected all labour litigation from 2014 to 2018 brought forward by Chinese posted workers in Chinese courts against Chinese enterprises regarding the performance of employment contracts in the B&R countries where Chinese labour laws were mandatorily applied under the doctrine of overriding mandatory labour rules. The study adopted a qualitive research approach to analyse the compiled cases to explore their characteristics and effects.FindingsThis study found that the volume of labour disputes in the B&R countries had a somewhat positive correlation to the amount of investment from China. However, this correlation was rather superficial when compared with the correlation to the type of industrial sector (e.g. the construction sector) and to the claim category (e.g. remuneration claims). Moreover, labour disputes in both the B&R countries and China shared a great deal of similarity with regard to their concentration in certain sectors and in certain types of claims. Therefore, mandatorily applying Chinese labour law could be convenient for Chinese workers returning from abroad who seek remedies and could allow Chinese judges to issue affirmative decisions regardless of the territory in which the worker was posted.Research limitations/implicationsThe cases collected by this study were limited to those filed in China by Chinese workers who were hired by Chinese enterprises and sent to work in the B&R countries and did not include those filed in the B&R countries by Chinese posted workers. Future research should therefore attempt to gather a broader range of labour disputes to further clarify the issues and need for labour protection for Chinese posted workers in the B&R countries.Practical implicationsThis study argues that the doctrine of overriding mandatory labour rules is not entirely unproblematic because it might arbitrarily rule out the standards set by foreign labour legislation that could be more favourable to workers or offer them greater protection. Therefore, giving judges a certain degree of discretion is imperative to allow them to apply foreign labour standards when they have been proven to benefit workers.Originality/valueApart from a handful of reports on individual cases, there have been very few empirical studies regarding the general picture of labour protection for Chinese posted workers in the B&R countries. This study has adopted a novel approach to collect information on labour disputes in the B&R countries and to facilitate a qualitative analysis to test the practical implications of the doctrine of overriding mandatory labour rules.

scholarly journals Defining Fairness in Dismissals of Unauthorised Foreign Nationals

2020 ◽  
Vol 23 ◽  
pp. 1-25
Author(s):  
Kamalesh Newaj
Keyword(s):  
South African ◽  
Labour Law ◽  
Legal Requirements ◽  
Foreign Nationals ◽  
Labour Relations ◽  
Work Permit ◽  
Fair Treatment ◽  
Unfair Dismissal ◽  
Contract Of Employment ◽  
The Right

It is trite that if a person's employment is prohibited by law it is not possible for such a person to perform his or her work lawfully. However, people are employed despite failing to comply with statutory requirements. One such class of persons consists of unauthorised foreign nationals. This arises in circumstances where they are employed without work permits or where their work permits expire during employment. The Labour Court in Discovery Health Limited v CCMA 2008 7 BLLR 633 (LC) has affirmed that the absence of a valid work permit does not invalidate the contract of employment, thereby endorsing the fact that unauthorised foreign nationals are regarded as employees. While the Labour Court has confirmed that unauthorised foreign nationals are subject to labour law protection, notably the right not to be unfairly dismissed, it is irrefutable that employers are permitted to dismiss such employees. However, these dismissals must be fair. Unfortunately, there is no clarity on what constitutes a fair dismissal in such circumstances. Although the CCMA relying on the decision of Discovery Health is substantially unanimous in finding that unauthorised foreign nationals have the right to utilise the unfair dismissal machinery sanctioned in the Labour Relations Act 66 of 1995, its decisions are plagued with inconsistency when it comes to determining fairness. Furthermore, no specific guidance has been forthcoming from the Labour Court. Considering the fact that migration to South Africa is rife, resulting in many foreign nationals being employed, this is an important aspect of the law. Therefore, this article explores the substantive and procedural fairness requirements of such dismissals. Having clarity of the legal requirements that apply will aid the fair treatment of foreign nationals who face dismissals due to the absence of valid work permits. This is significant, as South African labour law places a high premium on the fair dismissal of all employees. Apart from being legislated in the LRA, this right is also a constitutional imperative.

Data is different, and that’s why the world needs a new approach to governing cross-border data flows

2019 ◽  
Vol 21 (5) ◽  
pp. 441-460 ◽  
Author(s):  
Susan Ariel Aaronson
Keyword(s):  
Market Access ◽  
Current Approach ◽  
Data Driven ◽  
New Approach ◽  
Content Type ◽  
Goods And Services ◽  
Cross Border ◽  
Data Flows ◽  
Using Data

Purpose Companies, governments and individuals are using data to create new services such as apps, artificial intelligence (AI) and the Internet of Things (IoT). These data-driven services rely on large pools of data and a relatively unhindered flow of data across borders (few market access or governance barriers). The current approach to governing cross-border data flows through trade agreements and has not led to binding, universal or interoperable rules governing the use of data. The purpose of this article is to explain the new role of data in trade and to explain why data in trade is different from trade in other goods and services. We then suggest a new approach at the national and international levels. Design/methodology/approach The author uses a mixed methods approach to examine what the literature says about data as a traded good and or service, examines metaphors regarding the role of data in the economy, and then examines whether or not data is really “traded.” Findings Many countries do not know how to regulate data driven services. There is no consensus on what the appropriate regulatory environment looks like, nor is there a consensus on what are the barriers to cross-border data flows and what constitutes legitimate domestic regulation. Originality/value This is the first article to explain both the unique nature of data and the ineffectiveness of the trade system to address that distinctiveness.

scholarly journals Making sense of mixed-embeddedness in migrant informal enterprising

2019 ◽  
Vol 25 (5) ◽  
pp. 974-995 ◽  
Author(s):  
Angelo P. Bisignano ◽  
Imad El-Anis
Keyword(s):  
Asylum Seekers ◽  
Legal Status ◽  
Current Approach ◽  
Cross Sectional ◽  
Content Type ◽  
Theoretical Contribution ◽  
Market Opportunities ◽  
Migrant Entrepreneurs ◽  
The Uk ◽  
The Right

PurposeThe purpose of this paper is to discuss how informal migrant entrepreneurs with different legal statuses interpret their mixed-embeddedness in social and economic contexts. Legal status represents a key determinant in shaping accessible social networks and market opportunities that in turn influence entrepreneurial choices.Design/methodology/approachThe paper adopts an interpretative stance to explore how migrant entrepreneurs interpret mixed-embeddedness. It draws on the empirical evidence from a cross-sectional sample of 26 asylum seekers that engaged with enterprising activities in the city of Nottingham in the UK. A recursive hermeneutic process guided the iterative readings of the accounts to develop theoretical insights on how these agents reinvent their relationship with structure.FindingsA novel theoretical framework emerges from the data analysis to present how these particular migrants use understandings of community and notions of capital to make sense of their mixed-embeddedness. The main theoretical contribution of the framework is to illustrate how groups with different legal statuses produce unique interpretations of mixed-embeddedness. This, in turn, reflects onto specific forms of enterprising and innovative entrepreneurial choices. The framework also produces an empirical contribution as it re-centres the analysis of mixed-embeddedness around the migrant entrepreneur from previous meso- and macro-level perspectives that dominated recent research.Research limitations/implicationsThe paper expands knowledge on the notion of mixed-embeddedness by providing insights on how informal migrant entrepreneurs make sense of it. This can form the basis for allowing scholars to address empirically how migrant entrepreneurs reconcile their embeddedness in both social and economic contexts. In terms of practical implications, the paper paves the way for policy-makers to re-evaluate the current approach to the right of asylum seekers to pursue entrepreneurial activities.Originality/valueThe notion of mixed-embeddedness is central to research on informal migrant enterprising. Nevertheless, the concept remains fuzzy and difficult to operationalise. The paper offers an opportunity to understand how migrant entrepreneurs make sense of mixed-embeddedness so that future scholars can better explore how mixed-embeddedness reconciles agency and structure.

Unveiling the legal effect of collective agreements in China

2019 ◽  
Vol 42 (2) ◽  
pp. 366-380
Author(s):  
Dong Yan
Keyword(s):  
Trade Unions ◽  
Substitution Effect ◽  
Collective Agreement ◽  
Labour Law ◽  
Content Type ◽  
Collective Agreements ◽  
Legal Effect ◽  
Prior Literature ◽  
Labour Disputes ◽  
Quantitative And Qualitative Methods

Purpose The purpose of this paper is to examine the actual legal effect of collective agreements by focusing on the litigation regarding the implementation of collective agreements in China where current literature on the topic is scarce. Design/methodology/approach This paper deploys both quantitative and qualitative methods to investigate the features of litigation regarding collective agreements. The judgments on collective agreement by people’s courts nationwide from 1 January 2014 to 31 December 2018 provide the primary empirical data. The intrinsic features of collective agreement disputes are investigated to delineate different sorts of theoretically presumed legal effect, namely contractual, normative and other (if any). A number of collective agreement templates and texts have been gathered and analysed to further explore the factors leading to collective agreement disputes. A dozen of labour law professionals, workers, scholars and trade union officials, were interviewed to verify the findings. Findings The number of collective agreement disputes is relatively small compared to the number of valid collective agreements or the volume of other labour disputes. This study found no litigation initiated by trade unions to claim a remedy against a violation of a collective agreement by an employer. However, a growing number of cases were filed by individual workers to complain about the terms and conditions of their individual employment agreements in contradiction to the existing collective agreement. These data do not mean that collective agreements lack problems or have no significance in action. A novel effect – a “substitution effect” – is evident in the existing labour litigations and relatively popular amongst employers, as they often refer to the collective agreement when a written individual agreement, as the mandatory document, is absent. The advent of substitution effect reflects a pragmatic view amongst Chinese labour law professionals, employers and workers. Research limitations/implications Due to the recent establishment of the online judgments database, this study has focused on collective agreement litigation in people’s courts from 2014 to 2018, which is representative of the national trend of such disputes and thus provides valuable insights. Future studies should cover a wider time span and extend to the collective agreement disputes subject to labour arbitration to provide a fuller picture of the challenges and potential solutions. Practical implications By understanding the legal effect of collective agreements in reality, the legislature, workers and employers can act accordingly to enhance or empower it. The insignificant volume of both contractual and normative claims on collective agreements indicates the pressing need to inject something concrete into both substantive rights and the implementation mechanisms of collective agreements. The existence of substitution claims illustrates the room for further implementation of written individual agreements to reduce the need to borrow from collective agreements to fill the void left by the absence of individual agreements. Originality/value This study uniquely evaluates collective agreement disputes in China to seek their true legal effect, finding the substitution effect of collective agreements that was absent from the prior literature. The features of collective agreements are reflected in this work, together with public policy and theoretical implications.

scholarly journals Assessment of Applying Saudi Labour Law to Digital Platform Workers: Taking Uber as an Example

2021 ◽  
Vol 10 (4) ◽  
pp. 273
Author(s):  
Meshal Nayef Alharbi
Keyword(s):  
Saudi Arabia ◽  
Web Sites ◽  
Labour Law ◽  
Digital Platforms ◽  
Taxi Drivers ◽  
Digital Platform ◽  
Use Of Technology ◽  
Technology Platforms ◽  
Delivery Services ◽  
Labour Disputes

The use of technology platforms has become quite common and popular worldwide. Some of these platforms have used for business purpose such as connecting taxi drivers with riders or providing delivery services. At present, there are famous institutions employing persons to provide their services through digital platforms, and in some states, such persons are considered workers. In the Kingdom of Saudi Arabia, it is significant to find a direct answer to whether or not persons using digital labour platforms to offer services could be regarded as workers, and the Saudi Labour Law must, or not, be applied to govern their contracts with the enterprises that own these platforms. This paper aims to find a legal solution to this issue and concentrates on digital platform workers in Saudi Arabia. It examines mainly legal sources relating to Saudi Labour Law such as books, and investigates a number of reported judgments issued by the Commission for the Settlement of Labour Disputes in Saudi Arabia in 2010 and 2011.It also reviews relative information provided on the web sites of Uber. The finding is that the traditional rules of Saudi Labour Law should apply to these types of work agreements, and persons rendering their services through digital platforms must be protected by the rules established in the Law, but, according to the recent provisions adopted by the Saudi Ministry of Human Resources and Social Development, it seems that they are considered as freelancers.   Received: 4 March 2021 / Accepted: 6 May 2021 / Published: 8 July 2021

Examining augmented reality adoption by consumers with highlights on gender and educational-level differences

2021 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Salma S. Abed
Keyword(s):  
Saudi Arabia ◽  
Augmented Reality ◽  
Behavioral Intention ◽  
Educational Level ◽  
Online Survey ◽  
Middle Eastern ◽  
Content Type ◽  
Intention To Adopt ◽  
Use Of Technology ◽  
The Right

Purpose This study aims to explore the factors that could affect consumers’ adoption of augmented reality (AR) and investigate the interaction between gender and educational level on intention to adopt AR in developing countries as demonstrated here by Saudi Arabia. Design/methodology/approach The examined constructs were developed by integrating factors from the unified theory of acceptance and the use of technology (UTAUT2), including performance expectancy, expectancy effort, social influence, facilitating conditions, hedonic motivation and habit. Price value was eliminated and innovativeness was added to the examined constructs. Data were collected from 673 Saudi consumers through an online survey by implementing a convenience sampling. Furthermore, the effect of gender and education level on behavioral intention to adopt AR by consumers was examined. Findings The results of the regression analysis showed that the independent variables statistically significantly predict the consumers’ behavioral intention toward AR adoption with all the examined constructs. The proposed model was able to explain 84% of the variance of behavioral intention. Furthermore, there was a statistically significant interaction between the effects of gender and educational level on intention to adopt AR. Practical implications This study will clarify the relatively low diffusion rate of AR adoption in Saudi Arabia, which will help business owners and marketers to develop the right strategies, especially strategies that are associated to marketing and developing mobile applications by incorporating AR technologies, which will attract the attention of many users. Originality/value This is one of the few studies that has explored the intention to adopt AR by consumers by examining the UTAUT2 constructs in the Middle Eastern cultural contexts, in contrast to previous studies, specifically Saudi Arabia. This study further investigated the interaction between the effects of gender and educational level on intention to adopt AR.

scholarly journals Does the incorrect classification of misconduct charges constitute substantive unfairness? EOH Abantu v CCMA (2019) 40 ILJ 2477 (LAC)

Obiter ◽  
2021 ◽  
Vol 41 (3) ◽  
pp. 631-641
Author(s):  
Kamalesh Newaj
Keyword(s):  
Industrial Relations ◽  
Labour Law ◽  
National Education ◽  
Labour Relations ◽  
Unfair Dismissal ◽  
The Right ◽  
University Of Cape Town ◽  
Incorrect Classification

Dismissals are commonplace in employment and arise for various reasons. One such reason is the unacceptable or undesirable conduct of an employee, which is recognised as a dismissal for misconduct. Notwithstanding the employers’ right to effect dismissals, employees are considerably protected by the law (s 185 of the Labour Relations Act (LRA)). An employee has the right to challenge his/her dismissal by referring an unfair dismissal dispute to the CCMA (s 191 of the LRA). This is not surprising considering the fact that fairness is the cornerstone of the employment relationship (as evident from s 23(1) of the Constitution, which states that “everyone has the right to fair labour practices”; see also Blanpain and Weiss Changing Industrial Relations and Modernisation of Labour Law (2003) 182). While it is indisputable that employers should act fairly towards its employees, a significant principle that has been highlighted in the determination of fairness is that it must accommodate and balance the conflicting interests and rights of both employers and employees (National Education Health & Allied Workers Union v University of Cape Town (2003) 24 ILJ 95 (CC) par 38 and 40).

When the State Speaks, What Should It Say?

2012 ◽  
Author(s):  
Corey Brettschneider
Keyword(s):  
Freedom Of Expression ◽  
The State ◽  
Hate Groups ◽  
New Approach ◽  
State Action ◽  
Democratic State ◽  
Theory Of Value ◽  
The Right ◽  
Equal Citizenship ◽  
The Ideal

How should a liberal democracy respond to hate groups and others that oppose the ideal of free and equal citizenship? The democratic state faces the hard choice of either protecting the rights of hate groups and allowing their views to spread, or banning their views and violating citizens' rights to freedoms of expression, association, and religion. Avoiding the familiar yet problematic responses to these issues, this book proposes a new approach called value democracy. The theory of value democracy argues that the state should protect the right to express illiberal beliefs, but the state should also engage in democratic persuasion when it speaks through its various expressive capacities: publicly criticizing, and giving reasons to reject, hate-based or other discriminatory viewpoints. Distinguishing between two kinds of state action—expressive and coercive—the book contends that public criticism of viewpoints advocating discrimination based on race, gender, or sexual orientation should be pursued through the state's expressive capacities as speaker, educator, and spender. When the state uses its expressive capacities to promote the values of free and equal citizenship, it engages in democratic persuasion. By using democratic persuasion, the state can both respect rights and counter hateful or discriminatory viewpoints. The book extends this analysis from freedom of expression to the freedoms of religion and association, and shows that value democracy can uphold the protection of these freedoms while promoting equality for all citizens.

Islamic hedging for pilgrimage funds: case of Indonesia

2019 ◽  
Vol 11 (3) ◽  
pp. 328-341
Author(s):  
Rifki Ismal ◽  
Nurul Izzati Septiana
Keyword(s):  
Exchange Rate ◽  
The Other ◽  
Exchange Rate Risk ◽  
Content Type ◽  
Other Hand ◽  
Rate Risk ◽  
Risk Identify ◽  
Hajj Season ◽  
The Right ◽  
Very High

Purpose The demand for Saudi Arabian real (SAR) is very high in the pilgrimage (hajj) season while the authority, unfortunately, does not hedge the hajj funds. As such, the hajj funds are potentially exposed to exchange rate risk, which can impact the value of hajj funds and generate extra cost to the pilgrims. The purpose of this paper is to conduct simulations of Islamic hedging for pilgrimage funds to: mitigate and minimize exchange rate risk, identify and recommend the ideal time, amount and tenors of Islamic hedging for hajj funds, estimate cost saving by pursuing Islamic hedging and propose technical and general recommendations for the authority. Design/methodology/approach Forward transaction mechanism is adopted to compute Islamic forward between SAR and Rupiah (Indonesian currency) or IDR. Findings – based on simulations, the paper finds that: the longer the Islamic hedging tenors, the better is the result of Islamic hedging, the decreasing of IDR/USD is the right time to hedge the hajj funds and, on the other hand, the IDR/SAR appreciation is not the right time to hedge the hajj funds. Findings Based on simulations, the paper finds that: the longer the Islamic hedging tenors, the better is the result of Islamic hedging, the decreasing of IDR/USD is the right time to hedge the hajj funds and, on the other hand, the IDR/SAR appreciation is not the right time to hedge the hajj funds. Research limitations/implications The research suggests the authority to (and not to) hedge the hajj fund, depending on economic conditions and market indicators. Even though the assessment is for the Indonesian case, other countries maintaining hajj funds might also learn from this paper. Originality/value To the best of author’s knowledge, this is the first paper in Indonesia that attempts to simulate the optimal hedging of hajj funds.

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