scholarly journals THE REINSTATEMENT AND COMPENSATION CONUNDRUM IN SOUTH AFRICAN LABOUR LAW

2016 ◽  
Vol 19 ◽  
pp. 1
Author(s):  
Judith Geldenhuys
Keyword(s):  
Dispute Resolution ◽  
South African ◽  
Negative Effects ◽  
Labour Law ◽  
Case Discussion ◽  
Labour Relations ◽  
Legal Principles ◽  
Labour Dispute ◽  
Novel Concept

The SBV Services (Pty) Ltd case brought a novel concept into the labour dispute resolution arena: arbitrators must inform employees who succeed in proving that they were dismissed for an unfair reason of the implications of a reinstatement or compensation order in terms of the Labour Relations Act 66 of 1995 before making an award. This case discussion highlights how the court, under the pennant of the interests of justice, made injudicious errors in the interpretation and application of accepted legal principles, and the potential negative effects that enforcement of this principle could have.

scholarly journals TOWARDS AN EFFECTIVE KENYAN LABOUR DISPUTE RESOLUTION SYSTEM: A COMPARISON WITH THE SOUTH AFRICAN LABOUR DISPUTE RESOLUTION SYSTEM

Obiter ◽  
2018 ◽  
Vol 39 (2) ◽  
Author(s):  
Johana K Gathongo ◽  
Adriaan van der Walt
Keyword(s):  
Dispute Resolution ◽  
Comparative Approach ◽  
Labour Relations ◽  
Resolution System ◽  
Labour Dispute ◽  
Wide Range ◽  
Labour Standards ◽  
International Labour Standards ◽  
The Government ◽  
Dispute Resolution System

There have been notable concerns in the current dual dispute resolution system in Kenya. The problems include protracted referral timeframes for dismissal disputes, non-regulation of maximum timeframes for the agreed extension after 30 days conciliation period has lapsed, the absence of statutory timeframes for appointing a conciliator/ commissioner and arbitration process under both the Labour Relations Act, 2007 and the Employment Act, 2007. Likewise, the responsibility of resolving statutory labour disputes in Kenya is still heavily under the control of the government through the Ministry of Labour. There is still no independent statutory dispute resolution institution as envisaged by the Labour Relations Act, 2007. As a result, the Kenyan dispute resolution system has been criticised for lack of impartiality leading to the increase in strikes and lockouts.This article examines the effectiveness of the Kenyan labour dispute resolution system. The article evaluates the provisions of international labour standards relevant to labour dispute resolution. The article illuminates and describes the bottlenecks in the current Kenyan system and argues that it does not adequately respond to the needs of parties in terms of the international labour conventions. A comparative approach with South Africa is adopted to see how independent institutions, such as the Commission for Conciliation, Mediation and Arbitration, Bargaining Councils and specialised Labour Courts can lead to effective dispute resolution. In view of that, a wide range of remedial intervention intended to address the gaps and flaws highlighted in the study are made. Systematically, the article provides suggestions and possible solutions for a better institutional framework and processes to address them.

Is mediation the preferred procedure in labour dispute resolution systems? Evidence from employer–employee matched data in China

2019 ◽  
Vol 62 (1) ◽  
pp. 81-103 ◽  
Author(s):  
Jiaojiao Feng ◽  
Pengxin Xie
Keyword(s):  
Dispute Resolution ◽  
National Level ◽  
Organizational Factors ◽  
Individual Level ◽  
Labour Relations ◽  
Labour Dispute ◽  
Structure Factors ◽  
The Individual ◽  
Matched Data ◽  
The Relationship

This study explores procedural preferences in the historical development of labour dispute resolution systems at the national level and employees’ pre-experience preference to resolve disputes at the individual level. Drawing on two datasets – one from national public statistics and one from China’s employer–employee matched data – we find that mediation has fluctuated in its use and efficacy, and it has re-emerged as an important method to stabilize labour relations. Employees choose internal mediation only if they feel that the enterprise’s mediation committee is selected fairly. Organizational structure factors, such as the enterprise’s size and the effectiveness of the Staff and Workers Representative Congress, moderate the relationship between employees’ perceptions of justice and procedural preferences. This study contributes to the dispute resolution literature by highlighting the interactions between individual perceptions of justice and organizational factors of procedural preference. Additionally, practical implications are offered to aid in the design of dispute resolution systems and improve organizational justice.

scholarly journals Legal Pitfalls of Incompatibility in the Workplace: An Examination of the Landmark Ruling on Racism in Rustenburg Platinum Mine v SAEWA obo Meyer Bester 2018 (5) SA 78 (CC)

Obiter ◽  
2020 ◽  
Vol 41 (2) ◽  
pp. 429-435
Author(s):  
Konanani Happy Raligilia ◽  
Unathi Nxokweni
Keyword(s):  
South African ◽  
Focal Point ◽  
Good Practice ◽  
Case Note ◽  
African National Congress ◽  
Labour Law ◽  
Labour Relations ◽  
Racial Harassment ◽  
Contract Of Employment ◽  
Legislative Framework

In South African labour law, as is the position in other international jurisdictions, the contract of employment is founded on an employment relationship between employer and employee. This case note discusses the nature and scope of the implied term of trust and confidence in the relationship in relation to managerial employees, with particular emphasis on breach of fiduciary obligations as well as incompatibility (MacGregor “Racial Harassment in the Workplace: Context as Indicata SA Transport and Allied Workers Union obo Dlamini & Transnet Freight Rail” 2009 Industrial Law Journal 650). This obligation of mutual trust and confidence cuts both ways (Western Platinum Refinery Ltd v Hlebela (2015) 36 ILJ 2280) and means that the employer must not behave arbitrarily or unreasonably, or so as to destroy the necessary basis of mutual confidence (Malik v BCCI [1998] AC 20 35 and Woods v WM Car Services (Peterborough) Ltd 1981 IRLR 347).Since the dawn of democracy in 1994 and influenced by constitutional changes in government, South African labour law has been drastically transformed. The new government, led by the African National Congress, had to come up with a legislative framework to deal with racism. Although the Labour Relations Act 66 of 1995 (LRA) does not explicitly deal with the question of racism at work, the importance of forging harmonious employment relationships is covered in the misconduct and incapacity in Schedule 8 of the LRA (Code of Good Practice: Dismissal). To this day, racism at the workplace remains a scourge and for this reason this case note examines the Rustenburg Platinum Mine v SAEWA obo Bester 2018 (5) SA 78 (CC)) case as its focal point. The effect of racism requires that a balance be struck between an employer’s interest in managing its business as it sees fit and the employee’s interest in not being unfairly and improperly exploited.

Settlement of Labour Disputes under Cameroonian Labour Law

2018 ◽  
Vol 26 (3) ◽  
pp. 407-425
Author(s):  
Fonja Julius Achu
Keyword(s):  
Private Sector ◽  
Trade Unions ◽  
Dispute Settlement ◽  
Case Law ◽  
Labour Law ◽  
Labour Relations ◽  
Effective Strategies ◽  
Labour Dispute ◽  
Labour Disputes ◽  
Legal Mechanism

Labour relations dispute settlement in Cameroon is fraught with problems. This article is aimed at examining the adequacy of Cameroon's labour laws vis-à-vis the settlement of labour disputes. The author uses published records, case law, academic documents and documentaries to gather data. The data collected constitute the sources from which the law is drawn, stated and analysed in light of the stated aim of the article The article argues that in Cameroon the legal mechanism used to regulate labour dispute settlement in the private sector is very fragile and so does not effectively handle labour disputes. The relevance of the article lies in the fact that it addresses issues of law that affect employees, employers and trade unions as it enables them to be aware of the plight of workers and to explore effective strategies for dispute settlement. The findings are equally significant as they expose lacunae in the current law in relation to the settlement of labour disputes and conclude with suggestions on the way forward.

scholarly journals The Right to Strike and Replacement Labour: South African Practice Viewed from an International Law Perspective

2018 ◽  
Vol 21 ◽  
pp. 1-34
Author(s):  
Stefan Van Eck ◽  
Tungamirai Kujinga
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
Labour Law ◽  
International Labour Organisation ◽  
Labour Relations ◽  
Essential Services ◽  
The Republic ◽  
Labour Legislation ◽  
The Right

South Africa is a member of the International Labour Organisation (hereafter the ILO), an establishment that sets international labour law standards through its conventions, recommendations and expert supervisory committees. Also, South African courts have an obligation to interpret labour provisions in accordance with international law and customs. This paper examines whether by way of the Labour Relations Act of 1995 (hereafter the LRA) the current regulation of both the right to strike and the use of replacement labour during strikes falls within the ambits of internationally and constitutionally acceptable labour norms. Strike action constitutes a temporary and concerted withdrawal of work. On the other hand, replacement labour maintains production and undermines the effect of the withdrawal of labour. Consequently, the ILO views the appointment of strike-breakers during legal strikes in non-essential services as a violation of the right to organise and collective bargaining, and in a number of countries replacement labour is prohibited. The Constitution of the Republic of South Africa, 1996 enshrines every worker's right to strike and the LRA gives effect to this right. However, the foundation of this right is ostensibly brought into question by the LRA in as far as it permits employers to make use of replacement labour during strike action. This article investigates whether replacement labour undermines the right to strike in South Africa and considers to what extent labour legislation may be misaligned with international norms. In conclusion the research makes findings and proposes alternatives that may be considered to resolve this seemingly skewed situation.    

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.

scholarly journals REFORMING THE SOUTH AFRICAN SOCIAL SECURITY ADJUDICATION SYSTEM: INNOVATIVE EXPERIENCES FROM SOUTH AFRICAN NON-SOCIAL SECURITY JURISDICTIONS

2016 ◽  
Vol 19 ◽  
pp. 1
Author(s):  
Mathias Ashu Tako Nyenti
Keyword(s):  
Social Security ◽  
Dispute Resolution ◽  
South African ◽  
Access To Justice ◽  
Constitutional Rights ◽  
The South ◽  
Labour Relations ◽  
Resolution System ◽  
Dispute Resolution System ◽  
Limited Scope

There is currently no uniform social security dispute resolution system in South Africa due to the piecemeal fashion in which schemes were established or protection against individual risks regulated. The result is that each statute provides for its own dispute resolution institution(s) and processes. There are also various gaps and challenges in the current social security dispute resolution systems, some of these relating to the uncoordinated and fragmented nature of the system; inaccessibility of some social security institutions; inappropriateness of some current appeal institutions; the lack of a systematic approach in establishing appeal institutions; a limited scope of jurisdiction and powers of adjudication institutions; inconsistencies in review and/or appeal provisions in various laws; an unavailability of alternative dispute resolution procedures; and an absence of institutional independence of adjudication institutions or forums. The system is therefore in need of reform. In developing an appropriate system, much can be learned from innovative experiences in comparative South African non-social security jurisdictions on the establishment of effective and efficient dispute resolution frameworks. Dispute resolution systems in the labour relations, business competition regulation and consumer protection jurisdictions have been established to realise the constitutional rights of their users (especially the rights of access to justice, to a fair trial and to just administrative action). They thus provide a benchmark for the development of the South African social security dispute resolution system.

scholarly journals THE NAMIBIAN LABOUR DISPUTE RESOLUTION SYSTEM: SOME LESSONS FROM SOUTH AFRICA

Obiter ◽  
2014 ◽  
Vol 35 (1) ◽  
Author(s):  
Felix Musukubili ◽  
Adriaan van der Walt
Keyword(s):  
South Africa ◽  
Dispute Resolution ◽  
Industrial Relations ◽  
Comparative Approach ◽  
Political Systems ◽  
Labour Relations ◽  
Resolution System ◽  
Labour Dispute ◽  
Social Partners ◽  
Short And Long Term

In Namibia and South Africa respectively, there are social partners (social partners are the workers’ and employers’ organisations in terms of the ILO classification) with common and divergent short- and long-term interests. These divergent interests must be accommodated and reconciled and this process is the subject of labour law and industrial relations. However, the processes employed in Namibia and South Africa vary. The purpose of this comparative article is to highlight and explain the differences between and similarities of the two respective countries’ labour dispute-resolution systems. This comparative approach brings to bear two schools of thought, the first being the convergence school, and the second is the divergence school. The convergence school holds that the influence of industrialisation gradually brings the labour-relations systems of various countries closer to one another. The divergence school, on the other hand, maintains that labour relations are sub-systems of political systems and manifestations of prevailing social and economic conditions. Despite these perspectives above, it should not be taken for granted that systems and institutions are transplantable as it is argued that any attempt to do so may entail a wish of rejection. The reason for this view is premised on the basis that Namibia and South Africa are not identical; there are distinct differences in certain areas, such as economic development. However, the differences between the systems do not mean that Namibia cannot adopt solutions that have proved successful in South Africa or vice versa, and therefore a degree of transferability may be accepted.

Sign in / Sign up

Export Citation Format

Share Document