scholarly journals TEMPORARY EMPLOYMENT SERVICES: CLOSING A LOOPHOLE IN SECTION 198 OF THE LABOUR RELATIONS ACT 66 OF 1995

Obiter ◽  
2021 ◽  
Vol 31 (1) ◽  
Author(s):  
Ezette Gericke
Keyword(s):  
Temporary Employment ◽  
Employment Relationship ◽  
Third Party ◽  
Employment Services ◽  
Labour Relations ◽  
Unfair Dismissal ◽  
Contract Of Employment ◽  
Areas Of Concern ◽  
The One

Section 198 of the Labour Relations Act (hereinafter “LRA”) regulates the employment relationship between a worker (the employee), a labour broker (the employer) and a third party (the client). It also regulates the aspect of liability between the temporary employment service and its client on the one hand in relation to the employee/worker on the other hand. It is with regard to the latter aspect thatthe employee is in a detrimental position as far as the loss of protection against an unfair dismissal as regulated by sections 185 and 186 of the LRA is concerned. The complexity of this kind of relationship is illustrated by means of a case study relating to an unfair dismissal dispute. Legislation regulating the employee’s rights and the employer’s duties upon termination of the contract of employment is also discussed. In conclusion, solutions and recommendations are offered to address the existing areas of concern with regard to section 198(4) and the client’s responsibilities, the interpretation problems within the tripartite employment relationship, as well as the employment contract.

scholarly journals THE LEGALITY OF THE AUTOMATIC TERMINATION OF CONTRACTS OF EMPLOYMENT

Obiter ◽  
2021 ◽  
Vol 32 (3) ◽  
Author(s):  
Tamara Cohen
Keyword(s):  
Public Sector ◽  
Retirement Age ◽  
Employment Contracts ◽  
Employment Contract ◽  
Labour Relations ◽  
The Public ◽  
Term Contract ◽  
Unfair Dismissal ◽  
Contract Of Employment ◽  
The Impact

The Labour Relations Act (66 of 1995) (LRA) protects employees against unfair dismissal. In terms of section 186(1)(a) dismissal means that “an employer terminated a contract of employment with or without notice”. In order to fall within the ambit of this provision and benefit from the protections afforded by the LRA, an employee must prove that an overt act on the part of the employer has resulted in the termination of the employment contract (Ouwehand v Hout Bay Fishing Industries 2004 25 ILJ 731 (LC)). The onus then shifts to the employer to prove that the dismissal is both substantively and procedurally fair, failing which the employee will be entitled to theremedies afforded by section 193 of the LRA. However, not every termination of an employment contract constitutes a dismissal and a number of scenarios exist where an employment contract terminates lawfully by operation of law. The termination of a fixed-term contract by effluxion of time, termination of the contract due to supervening impossibility of performance and the attainment of a contractually agreed or implied retirement age all give rise to the lawful termination of an employment contract. Similarly the statutory “deemed-dismissal” provisions of application to employees in the public sector provide for the automatic termination of employment contracts in circumstances that the employee is absent without authorisation for a designated period of time. The effect of such automatic termination is that the employment contract terminates by operation of law and not by means of an act of the employer, resulting in the dismissal provisions of the LRA being legitimately circumvented. Labour-broking contracts typically include automatic termination clauses that provide for the automatic termination of employment contracts, between labour-brokers and their employees, when the broker’s client no longer requires the services of such employees. Similarly employers have sought to rely upon grounds of supervening impossibility of performance in order to argue that an employment contract has automatically terminated in the instance of absconding and imprisoned employees. This article will be examining the legality of the automatic termination of employment contracts in these contexts and the impact on employees’ rights to protection against unfair dismissal.

“Completely impartial opinion, okay?”

2021 ◽  
Vol 10 (3) ◽  
pp. 368-396
Author(s):  
Maarten Bogaards
Keyword(s):  
Argumentation Theory ◽  
The Other ◽  
Research Interest ◽  
Third Party ◽  
Multidisciplinary Study ◽  
Considerable Research ◽  
Audience Adaptation ◽  
The One ◽  
The Relationship

Abstract Sponsorships on YouTube – i.e., video creators on YouTube promoting a third-party product or service to their audience – have attracted considerable research interest recently in various disciplines. This multidisciplinary study analyzes it from the perspective of argumentation theory, specifically pragma-dialectics, which offers valuable new insights into the discursive tensions inherent to this type of promotion. These tensions arise between the creator’s relationship with their audience on the one hand, which is built upon ‘parasocial’ evaluations of authenticity and community, and the commercial third party brand on the other. The insights provided by the pragma-dialectic analysis are demonstrated by means of a case study examining a sponsorship segment by YouTuber PewDiePie, which shows that creators can employ specific types of presentational choices and audience adaptation strategically to undercut commitment to the sponsor while furthering the relationship with their viewers.

scholarly journals Determining the True Reason for an Alleged Section 187(1)(c) Dismissal: A Discussion of National Union of Metalworkers of South Africa v Aveng Trident Steel (a Division of Aveng Africa (Pty) Ltd) (2021) 42 ILJ 67 (CC)

2021 ◽  
Vol 24 ◽  
pp. 1-20
Author(s):  
Kamalesh Newaj
Keyword(s):  
South Africa ◽  
Case Note ◽  
The Other ◽  
Constitutional Court ◽  
National Union ◽  
Test Set ◽  
Labour Relations ◽  
Unfair Dismissal ◽  
Chemical Workers ◽  
The One

On 27 October 2020, the Constitutional Court handed down judgment in National Union of Metalworkers of South Africa v Aveng Trident Steel (A Division of Aveng Africa (Pty) Ltd) 2021 42 ILJ 67 (CC). Following the judgment, it is now commonplace that the amendment to section 187(1)(c) of the Labour Relations Act, 1995 does not preclude an employer from dismissing employees for a permissible reason, such as its operational requirements, should they refuse to accept a demand. The court confirmed that in cases such as this where they are faced with two opposing reasons for the dismissal, an impermissible reason on the one hand and a permissible reason on the other, an enquiry must be conducted into what the true reason for the dismissal is. However, the approach to be followed in conducting this enquiry caused dissent. Half of the judges were of the view that the correct approach is to follow the causation test set out in SA Chemical Workers Union v Afrox Ltd 1999 20 ILJ 1718 (LAC), while the other half disavowed reliance on the causation test. Instead, they opted to support the enquiry conducted in Chemical Workers Industrial Union v Algorax (Pty) Ltd 2003 24 ILJ 1917 (LAC). This case note seeks to establish which approach should be followed in determining the true reason for an alleged section 187(1)(c) automatically unfair dismissal.

scholarly journals Towards a fair hearing for all employees: A case of probationary employee's in Kenya and the right to be heard prior to dismissal

Obiter ◽  
2021 ◽  
Vol 41 (3) ◽  
pp. 555-572
Author(s):  
Johana K Gathongo
Keyword(s):  
Due Process ◽  
Employment Relationship ◽  
Labour Relations ◽  
The Status ◽  
Labour Practice ◽  
Contract Of Employment ◽  
The Law ◽  
Labour Legislation ◽  
The Right ◽  
Newly Hired

An employer may require a newly hired employee to serve a reasonable period of probation to establish whether or not his or her performance is of an acceptable standard before permanently engaging the employee. Even so, the current provisions relating to termination of probationary employees under the Employment Act, 2007 (EA) remains a source of concern. Currently, an employer may terminate the employment of a probationary employee at will and without affording such employee an opportunity to be heard. The status quo has received firm approval by the Employment and Labour Relations Court accentuating that employers are immune from claims of unfair termination of a probationary employee. This article argues that for termination to be considered procedurally fair whether during a probation period or not, it should be preceded by an opportunity for an employee to state a case in response to the charges levelled against him or her. This article highlights that all laws in Kenya, including the EA are subject to the Constitution, particularly article 41(1) of the Constitution which guarantees “every person” the right to fair labour practice. Equally, article 27 of the Constitution states that everyone is equal before the law and has a right to equal protection and benefit of the law. Allowing employers’ the freedom to terminate employment without following due process certainly open up the floodgates for abuse of the primary purpose of probation. The mere fact that a contract of employment is labelled as “probationary contract” should not be used as a licence by employers to erode the constitutionally entrenched labour rights. The primary purpose of any good law is to advance the achievement of equity and fairness at the workplace. This can only be achieved by protecting vulnerable and marginalised employees such as probationary employees who participate in unpredictable forms of employment. This article maintains that prominence should be on the existence of an employment relationship and fair labour practice as opposed to the existence of a conditional contract of employment. The existence of an employment relationship should serve as the main “port of entry” through which all employees access the rights and protection guaranteed by labour legislation.

scholarly journals SHOULD REFUSAL TO WORK FOLLOWING BREACH OF CONTRACT BY THE EMPLOYER REALLY BE A STRIKE? National Union of Mineworkers on behalf of Employees v Commission for Conciliation Mediation and Arbitration (2011) 32 ILJ 2104 (LAC)

Obiter ◽  
2021 ◽  
Vol 33 (2) ◽  
Author(s):  
Thanduxolo Qotoyi
Keyword(s):  
Common Law ◽  
Employment Relationship ◽  
Critical Question ◽  
Breach Of Contract ◽  
National Union ◽  
Labour Relations ◽  
Appeal Court ◽  
Contract Of Employment ◽  
The Common ◽  
Labour Legislation

The employment relationship is by its very nature premised on the foundation of inherent inequality between the employer and the employee. The employer by virtue of the resources at its disposal is in a stronger position than the employee. One of the strong criticisms levelled against the common law has always been its indifference to this unequal division of power. The common law tends to deal with a contract of employment on the basis that it is an agreement entered into voluntarily and on equal footing bythe employer and the employee. Unsurprisingly, the common law regards terms that regulate the employment relationship as being freely entered into by the contracting parties. This assumption overlooks the inherent inequality that characterizes the employment relationship. It is on account of this assumption that the common law can be mostly associated with unfairness when it comes to the employment relationship. Nowhere is this assumption clearer than in cases of dismissal. In relation to dismissal all that the common law demands is that the dismissal must be lawful. This requirement is easily met if the employer merely provides the employee with a notice of the dismissal. Under the common law there is no mention of fairness as a requirement for a dismissal. In order to address the deficiencies of the common law, the legislature has enacted labour legislation like the Labour Relations Act (66 of 1995, hereinafter “the LRA”) which seeks to bring in some equilibrium in the employment relationship. It must also be said that the LRA provides partiesinvolved in the employment relationship with a framework within which employment issues must be addressed. This has resulted in a situation where in some instances there is a collision between the common law and the LRA. The critical question that emerges is whether the rights and remedies of the employees in the event of a breach of contract must be exclusively determined within the framework of the LRA. If the answer is in the affirmative then it means that the common law has lost some of its relevance in employment issues. This case note seeks to analyse the tension between the common law and the LRA in the context of employees withholding their labour on account of a breach of contract by the employer. It also seeks to analyse the implications of the approach adopted by the Labour Appeal Court in National Union of Mine Workers on behalf of Employees v Commission for Conciliation Mediation and Arbitration ((2011) 32 ILJ 2104 (LAC)).

scholarly journals THE STATE OF TEMPORARY EMPLOYMENT SERVICES IN DEMOCRATIC SOUTH AFRICA

2010 ◽  
Author(s):  
T Nkabinde
Keyword(s):  
South Africa ◽  
Trade Unions ◽  
Codes Of Conduct ◽  
Temporary Employment ◽  
Employment Service ◽  
Employment Services ◽  
Labour Relations ◽  
Motor Industry ◽  
Employment Sector ◽  
Tripartite Relationship

For many years now, South Africa, like many countries has legally recognised labour hiring as a form of employment, through various pieces of legislature. According to section 198(2) of the Labour Relations Act the parties in this tripartite relationship are the temporary employment service is known as the employer, the employee, who is the person who’s been contractually procured for his services, and the client, who is the user enterprise that seeks the services of the temporary employment service. This type of employment has been under public and legal scrutiny for a while now because of malpractice(s) against employees. Trade Unions have called for the total banning of the operation of temporary employment agencies whereas some organisations including the Confederation of Associations in the Private Employment Sector (CAPES) have called for codes of conduct that will regulate the industry. The motor industry has recently banned the operation of temporary employment services in its sector, due to the recent industrial strikes concerning the salaries and wages of employees in the industry. This move has become an exception to section 198. However, will this ban by the motor industry be the beginning of more sectors calling for the ban of temporary employment services in pursuit to being part of the exception? This article will look at the problems faced by temporary employment services in South Africa, the consequences of the lack of enforcement of the laws governing this industry, as well as what South Africa can learn from the international and foreign community.

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 BREACH OF THE IMPLIED DUTY TO PRESERVE MUTUAL TRUST AND CONFIDENCE IN AN EMPLOYMENT RELATIONSHIP: A CASE STUDY OF Moyo v Old Mutual Limited (22791/2019) [2019] ZAGPJHC 229 (30 July 2019)

Obiter ◽  
2021 ◽  
Vol 42 (3) ◽  
Author(s):  
Konanani Happy Raligilia ◽  
Kodisang Mpho Bokaba
Keyword(s):  
South African ◽  
Case Note ◽  
Employment Relationship ◽  
Mutual Trust ◽  
Contract Of Employment ◽  
The One ◽  
The Individual ◽  
Labour Disputes ◽  
The Impact ◽  
The Relationship

This case note is intended to revisit the contentious aspect of the implied duties of South African labour law in the individual employment relationship. Significantly, the case note intends to remind the reader about the importance of adhering to certain implied duties in the contract of employment. In this regard, the implied duty to preserve mutual trust and confidence is the central theme of this case note. On the one hand, the implied duty to safeguard mutual trust and confidence imposes an obligation upon the employer to conduct itself in a manner not likely to destroy, jeopardise, or seriously damage the trust relationship and confidence in the employment relationship. On the other hand, this implied duty is becoming a significant yardstick used by employers to address contractual labour disputes in South Africa. In order for an employer to invoke this implied duty, it must be expected that the employee would have to conduct him or herself in a manner likely to demonstrate to his employer loyalty, good faith and cooperation.Against this background, the recent case of Moyo v Old Mutual (22791/2019) [2019] ZAGPJHC 229 (30 July 2019) (Moyo) demonstrates the impact of a breach of the implied duty to preserve mutual trust and confidence on the employment relationship. This case note intends to examine the implied obligation that rests upon the employer to safeguard trust and confidence in the relationship. The case note further reflects on the implied duty of employees to safeguard and protect mutual trust and confidence. After all, trust forms the basic fundamental core of the employment relationship, and any breach of this duty is likely to result in an irretrievable breakdown of the employment relationship. Once there is a breakdown of trust and confidence, it remains a mammoth task to restore the relationship.

scholarly journals RISKS ANALYSIS OF CAMA AUTOMATION SYSTEM (CASE STUDY: PT. BANK YELLOW INDONESIA)

2020 ◽  
Vol 2 (3) ◽  
pp. 26-33
Author(s):  
Muhammad Faizal Pradhana ◽  
Raden Aswin Rahadi
Keyword(s):  
Human Error ◽  
User Acceptance ◽  
Third Party ◽  
Automation System ◽  
Acceptance Test ◽  
Infrastructure Development ◽  
The People ◽  
The One ◽  
The Relationship

PT. Bank Yellow Indonesia (pseudonym) is developing a system called “CAMA Automation”. The purpose of this system is to operate the cash waterfall management for project financing automatically. The reason behind the development of this system is to minimize the risk of human error that has occurred several times and had a significant impact on this bank. In this research, we analyzed the possible risks that might arise when the system starts operating. We interviewed seven people who are involved in the making of this system, and they are also are the people who will use this system. The results of this study indicate there will be some risks that may occur when they start using this system, and the one that has the highest level of risk is when they input the wrong schemes of CAMA to the system. Those risks could affect the relationship between this bank and its third party, and also would be the obstacles to grab the opportunity from the infrastructure development in Indonesia. Therefore, a structural user acceptance test with all the people involved in the CAMA process is the best thing to do to prevent and mitigate those risks. The structural user acceptance test will make the employees who are involved in the CAMA process, can fully understand how to use the system properly.

scholarly journals The experience of guestworkers at a United States tourist resort

2013 ◽  
Vol 10 (2) ◽  
pp. 198-228
Author(s):  
Guilherme Mansur Dias
Keyword(s):  
United States ◽  
The United States ◽  
Temporary Employment ◽  
Eastern United States ◽  
Labour Relations ◽  
The North ◽  
North Eastern ◽  
The Us ◽  
Ethnographic Analysis

This article examines temporary employment among foreign workers at the Okemo Mountain Resort, a tourist ski complex located in Vermont state in the north-eastern United States. I discuss the meanings associated with the international displacement of these workers, focusing especially on the ideas and imagery surrounding 'mobility', 'work,' 'travel' and 'youth.' By describing their experiences, along with the practices and discourses of the employer and the US State, the case study shows how Okemo's strategy of hiring a flexible foreign workforce is connected to the multiple meanings through which these groups represent their experience of temporary migration to the United States in the context of increasingly precarious labour relations. The ethnographic analysis proposed by the research provides a counterpoint to the 'macro-analytical' approach employed by most studies on the issue of foreign temporary work in the United States.

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