Living the Brand has become a useful Human Resources strategy in post-Fordist organisations. This is due to globalized competition and decreased control structures leading to organisations needing to obtain ever higher levels of productivity and performance from highly skilled knowledge workers. Because of the nature of their work, knowledge workers are difficult to manage and control through traditional practices and are usually looking for more than just monetary remuneration. Living the Brand organisations provide a strong social identity, positive self-esteem and a sense of achievement to these employees. This small-scale qualitative study used inductive thematic analysis to investigate the after-effects of Living the Brand, using knowledge workers who had been retrenched from such organisations. The results show that the positive aspects of Living the Brand comes at the expense of the employees‟ social identity outside of the organisation. These include the identification with family, as well as their health and a sense of self beyond the organisation. As one can see in this study, this power imbalance, along with an increasingly unbalanced psychological contract, is a reality that was only truly realized by the employees after being retrenched from the organisation. Unfortunately Durban does not have a plethora of Living the Brand organisations, which in turn limits the available sample of research participants. This meant that the findings may not be applicable across cultures, and that the participants had all had several years to come to terms with their retrenchment. Further studies using a wider spectrum of participants are suggested, including those who have been more recently retrenched. / Thesis (M.Soc.Sc.)-University of KwaZulu-Natal, Durban, 2010.

No abstract available. / Thesis (LL.M.)-University of Natal, Durban, 1992.

LL.M / The provisions of South Africa’s law on dismissal based on operational requirements are frequently relied on by employers who dismiss employees to further various objectives. Against this background, this dissertation critically analyses the law providing for employers to rely on their operational requirements as a basis for fair dismissal, and the legal principles on selecting employees for dismissal based on operational requirements. As part of this analysis, the approach in South Africa is compared with the approach in Germany, the United Kingdom and Australia. The analysis is based on a critical literature study that includes a consideration of the relevant legislation, treaties, conventions, directives, case law, recommendations, textbooks, journal articles and statistical sources. This dissertation draws broad conclusions regarding the contents, effects and shortcomings of the aspects of South African law on dismissal based on operational requirements that fall within its scope. In broad terms, this dissertation finds that the conceptual model underpinning the South African regime on dismissal based on operational requirements, is intrinsically sound, but that certain aspects require reform. It finds further that South Africa’s law on dismissal based on operational requirements generally provides employees with a relatively high degree of employment security, and severely limits managerial prerogative. This dissertation concludes that the primary areas requiring reform relate to the test for substantive fairness that does not include a proportionality analysis to weigh up the competing interests of the employer and the employee(s), and the requirements regarding selection criteria that fail to include consideration of the impact of dismissal on individual employees and their dependents. This dissertation makes proposals for reform in these areas.

Economies worldwide have become more integrated and competitive due to the phenomenon of globalisation and its antecedents, which are improved technological communication, the use of technology in production, ever improving management of skills as well as standards of education. Amongst the consequences have been changing demands and rising expectations in terms of employee remuneration, job security and conditions of work. This has at the same time been accompanied by employers expecting greater profit. Against this backdrop, this treatise seeks to interrogate and to explain the processes that should constitute fair, rational and justifiable employee dismissal for operational purposes. This is done bearing in mind the global economic crisis and its impact on employees. The treatise constitutes an attempt to carve a cushioning mechanism for employees in the midst of the global economic storm. We consider the inadequacies of common law principles. We also submit that section 189 in its present form and its application by courts do not provide for substantive fairness interrogation when dealing with dismissal for operational reasons. We explore the legislative framework, interpretation by leading academics as well as applications by courts of section 189A, which prescribes that if dismissal is based on operational reasons, consideration must not only be based on substantive and procedural fairness but also that proper consideration of alternatives must have been explored before dismissal is effected.

Section 187(2)(b) of the Labour Relations Act sets out certain justifications for what may seem to be unfair discrimination in the workplace. The purpose of this note is to discuss the provisions of Age Discrimination, with specific focus on the rights of older employees, who have reached, what some might term, the ‘normal or agreed retirement age’. In the discuss which follows reference will be made to the Constitution of the Republic of South Africa1 in order to investigate the provisions of our new democratic era, and what is said therein about discrimination, and age discrimination in particular. In our new Constitutional dispensation there have also been circumstances where certain kinds of discrimination have become accepted on society, for example Affirmative Action, and an enquiry into the difference between discrimination and differentiation will therefore also be necessary. The provisions of the Employment Equity Act,2 which deal specifically with eliminating unfair discrimination in the workplace, and the Labour Relations Act,3 which deals primarily with the rights of employees, employers and trade unions, and seeks to harmonize employer-employee relations will be discussed wherein specific reference will be made to section 187(2)(b) of the LRA. A further discussion will outline the circumstances of what is meant by dismissal in the context of age based dismissals, and whether such a dismissal is infact a dismissal and whether, within the requirements of the LRA such a dismissal, or termination of employment contract, is infact fair. Furthermore, a comparative perspective of other jurisdictions will give a more complete understanding of the issue of age-based dismissals within the current context. However, to refer to legislation and foreign decisions alone, while being of important reference, is not enough and a enquiry into our own case law will be of significant importance to determine a path of direction one can expect when faced with a question of dismissals based on mandatory retirement ages, and in particular, a dismissal which has been so executed with recourse to section 187(2)(b) of the LRA. In the various cases the reasoning and rationale behind the decision making will shed light on a seemingly unresolved area of labour law, and in reading further not only in the judgments but also in various articles, one will see that there are many arguments for and against the use of a mandatory retirement age, the most important of which will be highlighted.

Section 157 of the LRA provides for the nature and extent of the Labour Courts jurisdiction. This provision has been subjected to extensive interpretation by the Judiciary and the various interpretations of the courts have not been entirely consistent. Specific mention is made of the relevance and applicability of section 157(1) and (2) of the LRA regarding the overlap between administrative law and contractual law into labour law. Reference will be made to case law specifically dealing with cases concerning the jurisdiction of the civil courts and labour courts where cases concerning employment and labour matters were brought either in terms of the PAJA or on the basis of contract law. The question arose whether matters which appear to be quintessential labour matters but simultaneously also capable of being entertained on the basis of the PAJA or in terms of contract law are matters which, generally, in terms of section 157(1) of the LRA fall within the exclusive preserve of the Labour Court or, in terms of section 157(2) of the LRA, fall within the concurrent jurisdiction of the High Court and the Labour Court. The discussion which follows will also include reference to the current legal position pertaining to the prohibition of public sector employees from pressing their claims relating to employment or labour matters in the civil courts on the basis of the PAJA as decided in the Chirwa v Transnet Ltd (2008) 2 BLLR 97 (CC) and; the impact thereof on employees pressing claims pertaining to employment and labour matters in the civil courts on the basis of contract law. In addition the similarity of considerations which are common to both administrative law and contract law regarding the “overlap” of each into labour law will be considered and discussed. In the light of the discussion which follows agreement will be expressed with certain decisions of the High Court and the SCA where civil courts were held to retain jurisdiction to entertain common law contractual claims concerning labour and iv employment matters as opposed to restricting all employment and labour matters to the forums established under the LRA and to claims and remedies which are provided for by the LRA.

According to the latest Education Statistics Report published by the Department of Basic Education in March 2013, there were 12 680 829 learners and students in the basic education system in 2011, who attended 30 992 education institutions and were served by 441 128 educators. The vision of the Department of Basic Education is of a South Africa in which all our people have access to lifelong learning and education and training, which will, in turn, contribute towards improving the quality of life. Ultimately this will influence the building of a peaceful, prosperous and democratic South Africa. The emphasis is on excellence. Therefore maintaining high standards of performance and professionalism is a national imperative. However, this has not always been the case in terms of performance. For more than a decade we have witnessed dismal results in literacy and numeracy. This was accompanied by a low throughput rate. Despite the poor matric, literacy and numeracy results in South Africa as well as the low throughput rate, no teacher has been formally charged for poor performance in the last two decades. South Africa’s education budget is regarded as one of the highest in the developing world. Since 1993 the education budget has also grown substantially. South Africa’s education expenditure on education has grown from R30 billion in 1994/05 to R101 billion in 2007/08. Spending on education grew even further from R207 billion in 2012/13 to a projected R236 billion in 2014/15. Additional allocations of R18.8 billion over the medium term are accommodated, including equalisation of learner subsidies for no-fee schools and expanded access to grade R.6 Over the rest of the medium-term-expenditure framework (MTEF),7 spending on education, sport and culture will amount to R233 billion in 2013/14. The investment in education has not yet yielded the desired results and the outcome of education is not in keeping with the substantial input. This crisis in education is one of the major challenges facing Government, Administrators, educators, parents and children of today. According to Spaull,9 the South African government spends the equivalent of $1225 (R12440.26)10 per child on primary education, yet accomplishes less than the government of Kenya which spends only the equivalent of $258 (R2620.80)11 per child. Various reasons such as poverty, management, leadership, imbalances of the past, two unequal education systems, poor management, training and development, non-accountability, role of government and unions, have been identified for the poor state of our education system. However, what is noticeably absent and hardly mentioned in any of the position papers, is that not a single teacher has been held accountable and dismissed for incapacity for the poor performance in the education sector. Unfortunately, there is no record in any of the provincial education departments’ annual reports that a teacher has been dismissed or at least placed on a formal programme of incapacity for poor performance. Therefore, we have to ask the question: “Are we getting value for money?".

Previously, the Labour Relations Act made it compulsory for the employer to consult on appropriate measures to avoid, minimise and change the timing of dismissals, mitigate the adverse effect of the dismissals, the method for selecting the employees to be dismissed, and severance pay for the dismissed employees. The Labour Relations Act 66 of 1995 (LRA) specifies the steps that must be followed when they consider dismissing employees for reasons based on the operational requirements of their business. The necessary and appropriate steps to be followed for dismissal for operational reasons are contained in Section 189 of the LRA. Before an employer can start the retrenchment process, he/she is required by law to give a written notice inviting the other parties to consult and the employer must be prepared to disclose all relevant information. The new law that governs disclosure states that if an arbitrator or the Labour Court is required to decide whether or not information is relevant to the proposed retrenchments, the onus is on the employer to prove that any information that it refuses to disclose is not relevant for the purpose for which it is sought. It is also provided that if a consulting party makes any representation to the employer in writing, the employer must respond in writing. In terms of Section 189A (19) of the LRA clear guidance is given as to when will a fair reason be granted to dismiss for reasons based on operational requirements. This Section, further suggests that the Labour Court must ascertain that an employee was dismissed for a fair reason if: the dismissal was for requirements based on the employer's economic, technological, structural or similar needs; the dismissal was operationally justifiable on reasonable grounds; there was a proper consideration of other options to save job loses; and criteria used for selecting people for retrenchment were fair and objective. This is a much stricter test for substantive fairness than was previously applied. The aim of this study is to determine whether the retrenchment processes and procedures practiced in the motor manufacturing company in the Eastern Cape are compliant with the legislative framework. The company policy was examined against the literature available and the retrenchment processes of different authors were investigated. For the purpose of this study, the researcher used a structured self-administered questionnaire to collect data from the respondents. The questionnaire was delivered by hand to each respondent and collected later. The questionnaire was carefully designed considering the main components and aspects of dismissal for operational requirements as revealed in the theory. The results of the empirical study revealed that the company conducts fair and proper retrenchment processes and procedures, consults with all the relevant stakeholders, follows the right consulting process when it contemplates dismissing employees for operational requirements, uses fair selection criteria and does not unfairly discriminate against employees based on arbitrary grounds. In respect of disclosure of information, the respondents were aware of what information is shared and disclosed and for what purposes. The findings indicated that the majority of the retrenchment processes and procedures applied in the motor manufacturing company in the Eastern Cape are in line with the best practise and compliant with legislative framework. Based on the findings of the study, the researcher recommends that the employer should create awareness and educate employees on the importance of the dimensions related to retrenchment processes and procedures whenever the company embarks on dismissal for operational requirements.

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.