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.

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 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 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 Introducing a Serpent into the Garden of Collective Bargaining: A Case Analysis of Numsa Obo Members v Elements Six Productions (Pty) Ltd [2017] ZALCJHB 35 (7 February 2017)

2019 ◽  
Vol 22 ◽  
pp. 1-20
Author(s):  
Night Tafadzwa Rwodzi ◽  
Nombulelo Lubisi
Keyword(s):  
Collective Bargaining ◽  
South African ◽  
Case Analysis ◽  
Case Note ◽  
The South ◽  
Labour Law ◽  
Just Cause ◽  
The Past ◽  
South African Constitution

This case note is an analysis of Numsa obo Members v Elements Six Productions (Pty) Ltd [2017] ZALCJHB 35 (7 February 2017). The jurisprudence advanced in this case is pertinent to balancing the employer and employee’s rights in the context of collective bargaining. The worker’s right to strike is one of the rights entrenched in the South African constitution. In addition, this right to strike should not be directly or indirectly undermined without a just cause. The preamble of the South African Constitution seeks to redress the unjust laws of the past including those in the employment arena. Furthermore, unfair discrimination is also one of the prohibited practices which are sanctioned not only domestically but internationally as well in terms of the International Labour Conventions. This note contributes to the existing literature of labour law by critically analysing the decision reached by Tlhotlhalemaje J.     

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.

Twenty Years of the Remedy of Reinstatement in the Law of Unfair Dismissal in South Africa: Some Preliminary, Jurisprudential and Sundry Issues

2020 ◽  
Vol 35 (1) ◽  
Author(s):  
Chuks Okpaluba ◽  
Mpfariseni Budeli-Nemakonde
Keyword(s):  
South African ◽  
Retirement Age ◽  
Constitutional Court ◽  
Labour Law ◽  
Labour Relations ◽  
Appeal Court ◽  
Unfair Dismissal ◽  
The Supreme Court ◽  
Evaluation Exercise ◽  
Court Of Appeal

Reinstatement as a remedy for unfair dismissal was known to and applied by the Industrial Court of the bygone labour relations regime of 1956. It was, however, the Labour Relations Act 66 of 1995 (LRA) that entrenched this remedy in the modern South African labour relations system designed essentially to do justice between the employer and the employee and, fundamentally, to achieve industrial justice. After two decades of the operation of the adjudicative institutions established by the 1995 Act, it is time to evaluate the ways in which the labour arbitrators, the Labour Courts and the Labour Appeal Court, have interpreted and applied the provisions of the LRA relating to reinstatement. This evaluation exercise also extends to the immense contributions of the Supreme Court of Appeal and the Constitutional Court to the jurisprudence surrounding reinstatement as an unfair dismissal remedy in contemporary South African labour law. This article starts by defining reinstatement, distinguishing the remedy of re-employment and, further, the Constitutional Court’s judicial activist innovation to the labour relations lexicon—‘instatement’. Then it settles down to tackle issues that are preliminary and jurisprudential in nature—issues that were probably not contemplated by the enabling legislation, but which have arisen in adjudication. These include resignation and its effect on reinstatement, automatic reinstatement in the form of a declaration, and whether a court is able to order either ‘interim reinstatement’ or ‘semi-urgent interim relief’.  The latter part of this article examines those non-statutory obstacles to accessing the remedy of reinstatement. These include the employer’s non-compliance with the order of reinstatement, as was the issue in the protracted litigation concerning Myers v National Commissioner of the SAPS ((2013) 34 ILJ 1729 (SCA); Myers v National Commissioner of the SAPS [2014] 5 BLLR 461 (LC); Myers v National Commissioner of the SAPS [2015] ZALCCT 68); whether the Prescription Act applies to claims for reinstatement; and such sundry issues as whether arrear wages could be recovered as a judgment debt. Finally, we consider whether an employee nearing the retirement age who is unfairly dismissed is entitled to reinstatement.

Labour Legislation Compliance within the Small-Enterprise Sector

2020 ◽  
Vol 43 ◽  
Author(s):  
Nkhuliseni Elijah Luvhengo ◽  
Adele Thomas
Keyword(s):  
South African ◽  
Negative Impact ◽  
Small Enterprise ◽  
Small Enterprises ◽  
Employment Relations ◽  
Labour Law ◽  
African Government ◽  
Labour Relations ◽  
Labour Legislation ◽  
Conditions Of Employment

The purpose of this study was to investigate how compliance with labour law—particularly the Labour Relations Act (LRA) and the Basic Conditions of Employment Act (BCEA)—could be promoted as sound governance practice. The study adopted a qualitative approach, and eight experts in the field were purposefully sampled and interviewed. The results suggested that small-enterprise owners were not knowledgeable about labour laws, hence their inability to comply with them. It was found that owners experienced labour laws as cumbersome, and their forced implementation had a negative impact on governance. It is suggested that different legal requirements be applied to the small-enterprise sector. Guidelines are proposed which legislators could use to assist the South African government in modifying the requirements of the LRA and the BCEA in respect of small enterprises. This study fills a gap in existing literature on small enterprises and governance in South Africa in the field of employment relations.

scholarly journals The Employment Status of Magistrates in South Africa and the Concept of Judicial Independence

2017 ◽  
Vol 20 ◽  
pp. 1-32
Author(s):  
Leana Diedericks
Keyword(s):  
South Africa ◽  
South African ◽  
Employment Status ◽  
Judicial Independence ◽  
The South ◽  
Labour Law ◽  
Labour Relations ◽  
South African Constitution

Protection in terms of labour law is primarily only available to persons with status as employees. In South Africa the courts have over the years developed different tests to establish who is an employee and therefore entitled to protection afforded by labour law. These tests have been incorporated into legislation. The Labour Relations Act 66 of 1995 provides for a definition and presumption of who is an employee. The Act further excludes certain categories of persons from its application and ambit. Although magistrates have not expressly been excluded from the application of the Act, it has been held that they are not employees, because such a categorisation would infringe upon the principle of judicial independence as guaranteed by the Constitution of the Repubblic of South Africa, 1996. The purpose of this paper is to evaluate whether magistrates could be categorised as employees in terms of the traditional tests of employment and still be able to maintain judicial independence as required by the South African Constitution.     

scholarly journals DEEMED DISMISSALS AND SUSPENSIONS IN THE PUBLIC SECTOR Grootboom v National Prosecuting Authority (2014) ILJ 121 (CC)

Obiter ◽  
2015 ◽  
Vol 36 (1) ◽  
Author(s):  
Marcus Kgomotso Mathiba
Keyword(s):  
Public Sector ◽  
South African ◽  
Public Service ◽  
Good Practice ◽  
Procedural Fairness ◽  
Constitutional Court ◽  
Labour Relations ◽  
The Public ◽  
Labour Practice ◽  
The Right

Two forms of suspension are known in South African law, namely, punitive and precautionary suspensions. Punitive suspensions are given as a form of a disciplinary sanction, while precautionary suspensions are effected pending an investigation. In the latter case, the suspension allows the employer time and space to conduct an investigation and to prevent the employee from tampering with the enquiry. Whether the suspension culminates in the employee’s dismissal or reinstatement, the LRA demands that the employee be treated fairly as an unfair suspension may constitute an unfair labour practice in terms of section 186(2)(b) of the Labour Relations Act (the LRA).In case of a dismissal the LRA requires that a dismissal must be both substantively and procedurally fair. With regard to the procedural fairness requirement, the Code of Good Practice (Chapter 8 of the LRA) suggests that the employer hold an enquiry to determine whether there is a ground or grounds for dismissal. The enquiry does not have to be formal but the employer must inform the employee about the allegations and give such employee an opportunity to state a case in response. However, the Code mentions that in exceptional circumstances the employer can dispense with pre-dismissal procedures, if that employer is reasonably unable to follow these guidelines. The Public Service Act 103 of 1994 (PSA) is an example of legislation that allows employers to dispense with the procedural guidelines of the Code, citing the employee’s unauthorized absence as an exceptional circumstance. Section 17(3)(a)(i) of the PSA states that a public-service employee who absents himself or herself from official duties without permission from of his or her head of department shall be deemed to have been discharged from the public service on account of misconduct. Section 17(3)(b) affords an opportunity to employees so discharged to make representations to their employers, showing good cause why they should be reinstated. Section 14(1)(a) of the Employment of Educators Act 76 of 1998 (EEA) contains provisions similar to those of section17(3) of the PSA, however, these apply only to educators.One can probably take the right to make representations mentioned above as an equivalent of the right to procedural fairness in the LRA, and also as a measure of complying with the guidelines stipulated in the Code. However, the right to make representations is distinct from the procedure under the LRA because it does not take effect unless invoked by the employee. Since the enactment of the PSA and the EEA, the position of suspended employees has been uncertain. The Constitutional Court in Grootboom v National Prosecuting Authority ((2014) ILJ 121 (CC)) dealt with deemed dismissals in the PSA and the EEA and the extent to which the provisions of these Acts can apply to suspended employees in the public sector. These issues are explored in this case note.

scholarly journals DISCIPLINARY PROCESSES FOR SOUTH AFRICAN MAGISTRATES: REFLECTIONS ON THE MAGISTRATES ACT 90 OF 1993 AND THE LABOUR RELATIONS ACT 66 OF 1995

Obiter ◽  
2017 ◽  
Vol 38 (3) ◽  
Author(s):  
Leana Diedericks
Keyword(s):  
South African ◽  
Work Performance ◽  
Good Practice ◽  
Employment Relationship ◽  
Disciplinary Action ◽  
Labour Relations ◽  
Role Players ◽  
Disciplinary Procedures ◽  
The Right ◽  
Proper Balance

An employment relationship creates certain rights and protection for the respective parties concerned. For example, an employee has the right not to be unfairly dismissed or subjected to unfair labour practices in the execution of his or her duties. On the other hand, an employer has the right to lay down rules in order to regulate the conduct required from its employees. The Code of Good Practice recognises this right of the employer: Dismissal , which requires all employers to adopt disciplinary rules that establish the standard of conduct required from employees. If an employee fails to adhere to the required rules or standards, the employer has recourse in the form of discipline. Disciplinary action is usually initiated in response to poor work performance or unwarranted behaviour by workers and is aimed at restraining employees from behaving in a manner that could hamper production and the functioning of the organisation. When an employer exercises the right to discipline, regard must be had to the employee’s right to be treated fairly. It is therefore important that disciplinary procedures should maintain a proper balance between the rights of the respective parties in the disciplining process.The aim of this note is to compare the procedures for disciplining conventional employees in terms of the LRA with the procedures to discipline magistrates in terms of the Magistrates Act. The purpose of the comparison is to evaluate whether the disciplinary regime applicable to magistrates effectively ensures that they are appropriately and timeously disciplined when necessary in order to ensure a well-functioning judiciary. The note will commence with an outline of the legislative and regulatory framework of the respective disciplinary processes. This will be followed by an evaluation of whether the disciplinary regime governing magistrates contributes to a well-functioning judicial system. The note will conclude with recommendations regarding streamlined processes that would provide role players in the judiciary with certainty about the applicable remedies and the appropriate dispute resolution institutions where their disputes may be resolved.

Sign in / Sign up

Export Citation Format

Share Document