Ph. D.

"Just cause" legislation, refers to any local, state, or national law which would provide, to all workers, protection from arbitrary and capricious termination from employment. Under such a law, employers could be required to establish just or reasonable cause for discharging an employee. Such legislation has been proposed, but not enacted, in several states. The purpose of the research was to determine the probable impact of just cause legislation on the discipline and discharge procedures of nonunion, private sector employers if such legislation is enacted. A review of just cause legislative proposals was conducted in order to determine what standards of just cause would be required under such laws. Since every proposal favored the use of arbitration to resolve discharge disputes, model standards of procedural just cause were derived from arbitration decisions and literature written by arbitrators and other labor authorities. A sample of nonunion, private sector manufacturing firms in Virginia was surveyed with a mailed questionnaire in order to identify employers' current procedures for disciplining and discharging employees. After an analysis of the results of the survey, conclusions were drawn based on a comparison of the survey results to the model standards of just cause. In general, it was concluded that if just cause legislation is enacted employers would need to: undertake a better investigation of mitigating circumstances prior to taking disciplinary action, provide more consistent enforcement and application of rules, and improve the overall formality and documentation of discipline and discharge procedures and actions. / M.S.

The purpose of this study was to review legal grounds upheld by federal and state courts in cases involving the dismissal of tenured public school teachers for alleged incompetence from 1958-1982 to determine a judicial definition of teacher incompetence. In addition, the study attempted to provide an historical analysis to determine if the reasons that federal and state courts have upheld for the dismissal of tenured public school teachers have changed or remained the same since 1958. Third, the study identified in recurring categories behaviors and actions of tenured public school teachers that courts have upheld as evidence of incompetence. Finally, the study sought to be of service to boards of education and professional administrators of the public schools by bringing to their attention the behaviors and actions of tenured public school teachers that courts have upheld as evidence of incompetence that justifies dismissal. Court decisions related to the topic"Teacher Incompetence" were located under the topic"Schools and School Districts" in the Century, Decennial, and General Digests. Cases were reviewed to determine if they fit within the delimitations of the study. Then each case was analyzed in chronological order to see if historically, there had been changes in legal interpretations of evidence that was substantiated by the federal and state courts as definitions of teacher incompetence for tenured public school teachers. Next, the behaviors and actions of public school teachers involved in such cases were divided into categories. Within each category, the specific teacher behaviors were listed according to state and frequency of incidence. These categories included: an inadequate preparation to teach, teaching methods, effect on pupils, personal attitudes, and disability. This research reveals that courts are stating that the incompetent teacher is one who lacks an adequate professional preparation to teach, is unable to provide designated instruction in an appropriate learning environment, and/or exhibits unprofessional behavior such that .the teacher's on-the-job duties cannot be continued successfully. / Ed. D.

Thesis (LLM. (Labour Law)) -- University of Limpopo, 2013 / Reinstatement is one of the remedies for unfair dismissals. Dismissed employees have a recourse to approach the Commission for Conciliation, Mediation and Arbitration1 or labour courts to seek reinstatement. The arbitrator or the courts have a discretion to order reinstatement based on the facts of the case, sometimes retrospectively. Retrospectivity is a discretionary matter in the hands of the courts and therefore the courts of law have been inundated with cases where the employers wanted to limit the retrospectivity of the application of reinstatement as a remedy for unfair dismissals. On the other hand, the dismissed employees would want the court to extend the application. In other circumstances the court would award compensation instead of retrospective reinstatement like where reinstating the employee is just practically impossible or the employee himself does not want to be reinstated. The Labour Relations Act2 has limited the power or discretion of the employers to dismiss employees at will. Section 185 of the LRA provides that there should be fair and valid reason for dismissals. The employer would have to prove the reason for dismissal for it to be valid. On the other hand, the case law also has established that where there is unfair dismissal, the arbitrator or the court must give the primary remedy in favour of the employees which is to reinstate them in their work. Such reinstatement would have the effect as if the employee was never dismissed in the first place.

Thesis (LLM. (Labour Law)) -- University of Limpopo, 2012 / Since the advent of constitutional democracy, there has been a steady growth in the volume of employment and labour protection legislation.1 More than a decade following the enactment of the new labour code has witnessed an avalanche of decisions of courts and arbitration awards of labour adjudicatory tribunals.2 Many of them involve unfair dismissals generally, unfair suspensions,3 residual unfair labour practices,4 disputes over promotion hinging on affirmative action, employment equity and unfair discrimination,5 the recurrent problem of jurisdiction,6 and review of arbitration proceedings.7 While wage and disputes8 on the one hand, and strikes9 on the other will always feature as perennial events in the labour-management calendar, truly important interface over several years has been dismissal of employees for automatically unfair reasons. 1 See eg, Labour Relations Act 66 of 1995; Basic Conditions of Employment Act 75 of 1997; Employment Equity Act 55 of 1998; Educators Employment Act 76 of 1988; Promotion of Administrative Justice 3 of 2000; Protected Disclosures Act 26 of 2000; Public Service Act (Proc 103 of 1994) Skills Development Act 97 of 1998; Skills Development Levies Act 9 of 1999; Unemployment Insurance Act 30 of 1966; The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. 2 See generally; Zondo, R ‘The new Labour Courts and labour law: The first seven months of the new LRA’ (1998) 19 ILJ 686; Wallis, M.J.D. ‘The new era – How decisive is the break from the past (1999) 20 ILJ 902. 3 Ngwenya v Premier of KwaZulu-Natal [2001] 8 BLLR 924 (LC); MEC for Tourism Affairs: Free State v Nondumo & others (2005) 26 ILJ 1337 (LC); SAPU & another v Minister of Safety & Security & another (2005) 26 ILJ 524 (LC). 4Department of Finance v CCMA & others (2003) 24 ILJ 1969 (LAC). 5 See eg: Minister of Finance & another v Van Heerden (2005) 26 ILJ 1593 (CC). For a detailed discussion: Zondo, R ‘The new Labour Courts and labour law: The first seven months of the new LRA’ (1998) 19 ILJ 686; Wallis, M.J.D. ‘The new era – How decisive is the break from the past (1999) 20 ILJ 902. 6 See eg: Old Mutual Life Assurance Co SA Ltd v Gumbi (2007) 28 ILJ 1499 (SCA). See also Pretorius SC, P ‘A dual system of dismissal law: Comment on Boxer Superstores Mthatha & another v Mbenya (2007) 28 ILJ 2209 (SCA) (2007) 28 ILJ 2172; 7 See generally Carephone (Pty) Ltd v Marcus NO & others1999 (3) SA 304 (LAC); Sidumo & another v Rustenburg Mines Ltd & others (2007) 28 ILJ 2405 (CC). 8 See generally, Du Toit, D ‘What is the future of collective bargaining (and Labour Law) in South Africa?’ (2007) 28 ILJ 1405; Landman, A ‘The duty to bargain – an old weapon pressed into service’ (2004) 25 ILJ 39. 9 Modise v Steve’s Spar Blackheath (2000) 21 ILJ 519 (LAC); PSA v Minister of Justice & Constitutional Development & others [2001] 11 BLLR 1250 (LC). See also Myburgh, JF ‘100 years of strike law’ (2004) 25 ILJ 962. 8 In pith and substance, the study concerned with dismissals that undermine the fundamental values that labour relations community in our country depends on to regulate its very existence. In the first part of the study, the constitutional and statutory framework will be briefly considered. An early appreciation of the constitutionalisation of the right to fair labour practices will provide a point of reference for evolving contemporary labour law corpus on automatically unfair dismissals. The second part takes a frontal examination of novel questions of constitutional vintage concerning automatically unfair dismissals. In turn, this raises questions of dismissals for exercising statutory employment rights. The other aspects are instances of employee victimisation resulting from lodging a grievance, protected disclosures, as well as trade union activities. Also arising are dismissals that can be ascribed to unfair discrimination. While the first part of this study concentrates on those situations where the employer has victimised and/or dismissed for exercising statutory rights, part three examines that question which has vexed the Labour Court, Labour Appeal, and to a lesser extent the Supreme Court of Appeal in recent times, the intersection between automatically unfair dismissals on the one hand, and corporate restructuring, on the other. In effect, the contentious issues naturally call for discussion: the uneasy relationship between corporate restructuring and collective bargaining, dismissal of protected strikers for operational reasons, dismissals in support of employer’s demands as well as dismissals of transferred employees consequent to transfer of undertaking. Before moving onto the heavyweight topic of automatically unfair dismissals, it is perhaps appropriate at this stage to reflect on the constitutional and statutory framework underpinning the Labour Relations Act 66 of 1995.

Thesis (LLM. (Labour Law)) -- University of Limpopo, 2008

Thesis (LLM. (Labour Law)) -- University of Limpopo, 2012 / The overlap between misconduct and incapacity in case of intoxication and alcoholism remains a grey area. It is trite that an employee can be dismissed if under the influence of alcohol during working hours. On the other hand, the Code of Good Practice: Dismissal for conduct and incapacity in item (10) of schedule 8 of the Labour Relations Act 66 of 1995 singles out alcoholism as a form of incapacity that may require counselling and rehabilitation. There is a thin line between cases in which intoxication can be treated as misconduct, and those cases in which alcoholism should be treated as incapacity. The purpose of this study is to critically analyse dismissal on the grounds of alcoholism and intoxication at the workplace.

The economic crisis faced by Spain, forced the Spanish government to conduct several reforms in labor legislation in order to address the high rates of unemployment, which led greater flexibility about worker protection, reflected more intensively about dismissal labor. Thus, this article will develop the most important edges of this new legal regime of dismissal according to Spanish labor regulations. / La crisis económica que afrontó España, obligo al Gobierno Español a realizar una serie de reformas en la legislación laboral a fin de afrontar las altas tasas de desempleo conllevando a la flexibilización de la protección del trabajador, la cual se manifestó con mayor intensidad en la institución jurídica del despido laboral. En razón a ello, es que el presente artículo desarrollará las aristas más importantes de este nuevo régimen jurídico del despido de acuerdo a la normativa laboral española.

The establishing of good cause subsequent to a deemed dismissal, as practiced currently only in the public sector, has been a controversial issue for the courts, labour law commentators and academics alike. It has been so because of a number of legislative deficiencies which caused the inconsistent application of the deeming provisions across the public service. Amongst others, the legislative deficiencies regarding establishing good cause are; the time-limit for establishing good cause, what happens when the employee returns, whether establishing of good cause should be entertained through written response or a hearing, the Termination of Employment Convention, 1982(No. 158) is silent on the deeming provisions, review of the employer’s discretion not to reinstate the absconding employee and the legal position regarding the traditional healer’s certificate. There will be an intensive investigation on the validity of the traditional healer’s certificate. Majority of South Africans rely on the THP for a number of illnesses. In some cases, they use the traditional healer’s certificate to establish good cause subsequent to a deemed dismissal. The traditional healer’s certificate is not yet valid given the pending legislative processes. This issue will be broadly explored in order to uncover the causes for the delay in finalising this crucial issue. Most of the absconding employees have a problem of alcoholism. There is a causal relationship between deemed dismissal and alcoholism. It is again the intention of this study to fully investigate this phenomenon and provide solutions for the employers faced with this challenge. Practical solutions will be proposed for each identified legislative deficiency and any related challenge to help employers to manage the deeming provisions in a very effective and efficient manner.

This research examined the effect of downsizing on the stress-related perceptions and work-related attitudes and behaviors of employees of a school food service organization. A major purpose of this study was to investigate individual level responses according to the severity of the downsizing. The research also examined the relationships between employees' stress-related perceptions and their work-related attitudes and behaviors, and the moderating effect of demographic factors on these relationships. Data for this research was collected from 527 cafeteria employees from 87 campuses of the focal organization. The results indicated that downsizing severity, expressed as the percentage of school cafeteria labor hour reductions during the past year, had little impact on employees' subjective interpretations or their attitudinal and behavioral responses. There was also a significant and positive relationship between downsizing severity and the campus-level productivity, as measured by the increase in meals served per labor hour. The results indicated no significant relationships between perceived job insecurity and employee attitudinal and behavioral reactions. However, significant and positive relationships were reported between employee role stress, as measured through role conflict and role ambiguity, and their work-related attitudes and behaviors. The correlations between perceived job insecurity and selected demographic variables were found to be either insignificant or contrary to predictions. / Ph. D.