Revisiting the Zimbabwean Unfair Labour Practice Concept

The 2013 Constitution of Zimbabwe entrenches the broad right to fair labour practices. The right is given effect to in Part III of the Labour Act (Chapter 28:01), which provides an exhaustive list of unfair labour practices which can be committed by employers, trade unions, workers' committees, and other persons. The Labour Act predates the 2013 Constitution. The constitutionalisation of the right to fair labour practices necessarily carries with it the attendant difficulties of reconciling the new rights and the pre-existing regulatory framework. This article seeks to contribute towards a practical understanding of the Zimbabwean unfair labour practice concept in the light of the constitutionalisation of the right to fair labour practices. It explores the nature and scope of the concept of unfair labour practice and examines its relationship with the constitutional right. Further, the contribution critiques the formalistic and conservative approach adopted by the Constitutional Court in explaining this relationship. The article commences with a brief discussion of the origins of the concept and its reception in Zimbabwean labour law. Following from this, the contribution critically analyses the unfair labour practice concept from statutory and constitutional perspectives. It argues for an expanded paradigm of the concept. This can be achieved if the judiciary moves away from pedantic approaches to the interpretation of labour rights. Therefore, the clarion call is for a purposive and expansive interpretation of the right to fair labour practices, which promotes constitutionalism. In addition, the contribution calls upon the legislature to reconsider the viability of the exhaustive list of unfair labour practices in Part III of the Labour Act, given the constitutionalisation of the broad right to fair labour practices.

A review of third stage of labour care guidance

Introduction Concerns exist regarding the suitability of national and international guidance informing third stage of labour care for women at low risk of postpartum haemorrhage. Methods The robustness and appropriateness of the research evidence underpinning third stage of labour care guidance by institutions such as the National Institution for Health and Care Excellence, the Royal College of Obstetricians and Gynaecologists and the Royal College of Midwives was assessed and areas for further research to address any gaps in knowledge were identified. Results National and international third stage of labour practice guidance recommend active management for all women. This may not be suitable for women at low risk of postpartum haemorrhage giving birth in a midwife-led unit or a home birth setting. This is because of the reduced reliability, validity and generalisability of the evidence informing this guidance to this group of women. Conclusions Expectant management may be more appropriate for women at low risk of postpartum haemorrhage who choose to birth in a midwife-led unit or home birth setting and want to experience a birth with minimal intervention. However, more research into third stage management practices in these settings is needed.

“TRUE” JURISDICTIONAL QUESTIONS AND THE IRRELEVANCE OF A CERTIFICATE OF OUTCOME Bombardier Transportation (Pty) Ltd v Mtiya NO [2010] 8 BLLR 840 (LC)

In the context of proceedings before the Commission for Conciliation, Mediation and Arbitration (“the CCMA”), the concept of “jurisdiction” generally refers to the authority of the CCMA to conciliate and arbitrate disputes between parties. The CCMA is an independent statutory body established in terms of section 112 of the Labour Relations Act 66 of 1995 (“the LRA”). It does not enjoy the wide powers of inherent jurisdiction and, furthermore, does not derive its jurisdiction from the common law, performing only the functions indicated by labour-related statutes such as the LRA. If there is a dispute about the fairness of a dismissal, or a dispute aboutan unfair labour practice, the dismissed employee or the employee alleging the unfair labour practice may refer the dispute in writing to the CCMA if no bargaining council has jurisdiction. Such a referral must generally be made within 30 days of the date of a dismissal or within 90 days of the date of the act or omission which allegedly constituted the unfair labour practice. The CCMA must attempt to resolve such a dispute through conciliation. If a commissioner has certified that the dispute remains unresolved, or if 30 days have expired since the CCMA received the referral and the dispute remains unresolved, the CCMA must arbitrate the disputes referred to in section 191(5)(a) upon request. Given the wording of such provisions, it is unsurprising that employers have requested conciliating commissioners to make in limine rulings on matters pertaining to the nature of the dispute (including whether or not the case involves a “dismissal” at all), time limits and applications for condonation and the identity of the parties (in particular, whether the applicant meets the definition of an “employee”). Section 192(1) of the LRA may support the validity of such a request at conciliation. It states that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. Such an approach raises a number of questions. For example, are such matters really best dealt with as a point in limine prior to any attempt being made to conciliate the matter, or should they form part of the evidence at arbitration in cases where the dispute could not be conciliated? In addition, what is the effect on jurisdiction of a conciliating commissioner’s certificate of outcome indicating that a dispute remains unresolved? Such matters were raised for adjudication in Bombardier Transportation (Pty) Ltd v Lungile Mtiya NO (Unreported Case No. JR 644/09, Labour Court) (“Bombardier”).

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

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.

Intern Labour as Regenerative Precarisation in the Cultural and Creative Industries

Internships are a precarious labour practice often driven by a combination of labour market competition, desirable work, employer advantages and fictional expectations. This article is based on an empirical study of intern labour in the Cultural and Creative Industries in Ireland. The data consists of a survey of workers and interns, and interviews with interns past and present. Through approaching internships as a form of precarisation, and intern labour through the lens of ‘fictional expectations’, this article provides an analysis of intern labour as a form of regenerative precarisation through the self-reinforcing tendencies of action, subjectivity, discursive constructs and social structures. The labour market practice of interning creates discursive, normative and structural patterns of precarisation. These patterns in turn shape subjective and intersubjective expectations of work and life, impacting on the actions that individuals make and thus acting as drivers of further precarisation.

‘Keep hoping, keep going’: Towards a hopeful sociology of creative work

This article explores the relationship between future-oriented temporality and precarity in creative work. Existing sociological studies implicitly assume an unproblematic causal link between creative workers’ future-orientation and their precarity, subjugation and exploitation. This article problematizes this link and offers a more nuanced reassessment of creative work’s futurity by arguing for the analytical potential of the notion of hope in gaining a better understanding of creative workers’ hopeful – affective, practical and moral – responses to conditions of protracted precarity. Building on theories of hope, the article conceptualizes hope both as an existential affective stance and an active moral practice oriented towards the present – an orientation that enables workers to keep going in spite of economic hardship and job uncertainty. From ‘an atypical case’ study of creative work in South-East Europe, hope emerges empirically as the central quotidian practice of coping with precarity. Three practices of hope are discussed: (1) hope as therapeutic practice; (2) hope as informal labour practice; and (3) hope as socially engaged arts practice. In so doing, the article explores the possibilities of practising ‘a hopeful sociology’ of creative work.

Drawing the Line between Dismissal for Alcoholism (Incapacity) and Dismissal for Drunkenness (Misconduct). Are the Boni Mores Compromised?

In South Africa employees are protected by various pieces of legislation. Section 23 of the Constitution of the Republic of South Africa 1996 provides for a right to fair labour practice. In its preamble the Labour Relations Act 66 of 1995 (hereafter referred to as the LRA) states that the purpose of the Act is to advance economic development, social justice, labour peace and democratisation of the workplace. The LRA also states that one of its objectives is to give effect to and regulate the fundamental rights conferred by section 27 of the Constitution. The Occupational Health and Safety Act as amended by the Occupational Health and Safety Amendment Act 181 of 1993 provides for the health and safety of persons at work and for the health and safety of persons in connection with the use of plant and machinery. The LRA provides for dismissal for incapacity and dismissals for misconduct. It also differentiates between the two. The LRA provides for both substantive and procedural fairness when dismissing an employee for incapacity and misconduct. This paper will examine the rationale behind differentiating between dismissal for drunkenness and dismissal for alcoholism.

The Interpretation to be accorded to the Term "Benefits" in Section 186(2)(A) of the LRA Continues: Apollo Tyres South Africa (PTY) LIMITED v CCMA (DA1/11) [2013] ZALAC 3

The interpretation to be accorded to the term benefits in section 186(2)(a) of the Labour Relations Act 66 of 1995 (the "LRA") has come before the Courts on several occasions. In terms of section 186(2)(a) of the LRA any unfair act or omission by an employer relating to the provision of benefits to an employee falls within the ambit of an unfair labour practice. In Schoeman v Samsung Electronics SA (Pty) Ltd[1] the Labour Court (the "LC") held that the term benefit could not be interpreted to include remuneration. It stated that a benefit is something extra from remuneration. In Gaylard v Telkom South Africa Ltd[2] the LC endorsed the decision in Samsung and held that if benefits were to be interpreted to include remuneration then this would curtail strike action with regard to issues of remuneration. In Hospersa v Northern Cape Provincial Administration[3] the issue regarding the interpretation of the term benefits did not relate to whether or not it included remuneration but rather to whether it included a hope to create new benefits which were non-existent. The Labour Appeal Court (the "LAC") held that the term benefits refers only to benefits which exist ex contractu or ex lege but does not include a hope to create new benefits. The LAC adopted this approach in order to maintain the separation between a dispute of interest and one of mutual interest, the latter being subject to arbitration whilst the former is subject to the collective bargaining process (strike action). In Protekon (Pty) Ltd v CCMA[4] the LC disagreed with the reasoning in Samsung and held that the term remuneration as defined in section 213 of the LRA is wide enough to include payment to employees, which may be described as benefits. The LC remarked that the statement in Samsung to the effect that a benefit is something extra from remuneration goes too far. It further remarked that the concern that the right to strike would be curtailed if remuneration were to fall within the ambit of benefits need not persist. It based this statement on the reasoning that if the issue in dispute concerns a demand by employees that certain benefits be granted then this is a matter for the collective bargaining process (strike action) but where the issue in dispute concerns the fairness of the employer’s conduct then this is subject to arbitration.[5] It is then no surprise that the issue regarding the interpretation of the term benefits once again came before the LAC in Apollo Tyres South Africa (Pty) Limited v CCMA & others.[6] The LAC was tasked with deciding if the term could be interpreted to include a benefit which is to be granted subject to the discretion of the employer upon application by the employee. In deciding this, the LAC overturned the decisions in Samsung and Hospersa and opted to follow the decision in Protekon. Apollo is worthy of note as it is the latest contribution from the LAC regarding the interpretation of the term benefits and it is of binding force for the Commission for Conciliation Mediation and Arbitration and Labour Courts in terms of the principle of stare decisis. The purpose of this note is threefold. Firstly, the facts, arguments and judgment in Apolloare stated briefly. Secondly, the judgment is critically analysed and commented upon. Thirdly, the note concludes by commenting on the way forward for benefit disputes in terms of section 186(2)(a) of the LRA.