published_or_final_version / Public Administration / Master / Master of Public Administration

Thesis (LLM. (Labour Law)) -- University of Limpopo, 2011 / The definition of an employee in most protective labour legislations excludes various categories of workers. The definition of what an employee is, is different in labour legislation. A new presumption of what an employee is, is just a guideline and not exhaustive. The tests developed by our courts do not assist in defining an employee in boarderline cases. It is not simple as it originally seemed. In the beginning it seemed certain but in the end the definition can no longer be valid. The definition of an employee is a journey of a thousand miles which begins with the test step-with no end. The words of Francis Bacan seem to hold water regarding most definition of an employee. Francis Bacan said I quote ‘if a man will begin with certainties, he shall end in doubts, but if he will be content to begin with doubts, he shall end in certainties.

This thesis examines ways in which domestic workers in South Africa could be included within the scope of existing industrial legislation. At present the legal position of a work force of 862 000 is regulated by the common law contract of service. Socio-economic factors form the background of this investigation,which first sets out to determine whether the common-law contract of employment is capable of equitably regulating the employment relationship. The fallacy of the assumption that individuals agree on the terms of exchange in the employment contract on the basis of juridical equality, and the tenuous nature of the common-law employment relationship in the case of domestic workers are revealed. In the absence of any current statutory minima the employment contract is used to deprive domestic workers of what little protection they enjoy at common law. The two ways in which the individual employee's conditions of service can be protected from terms favouring the stronger of the two contracting parties are discussed. These are collective bargaining and statutory regulation. Difficulties experienced by domestic workers in respect of collective bargaining, whether they be included under the Labour Relations Act or not, are indicated. Proposals for including domestic workers under the Basic Conditions of Employment Act are evaluated in the light of legislation in the United States of America, Zimbabwe, Swaziland and Namibia. Ways of minimum-wage fixing are investigated, and it is concluded that the provisions of the Wage Act could be adapted for domestic workers. The 'unfair labour practice'concept is examined and the implications of its application for the domestic labour sector evaluated. It is recommended that the concept 'fairness' in the Labour Relations Act should apply to domestic workers, but that a code of practice be drafted to provide conceptions of 'fairness' as guidelines for employment behaviour. It is suggested that the parties refer disputes to mediation before being granted access to a Small Labour Court established for this purpose. In conclusion a draft code of practice is presented, as a basis for negotiation at a forum representative of the major actors in the domestic labour arena.

The primary purpose of this treatise is to consider the development, analysis and application of the review test in relation to arbitration awards which is set out in the Constitutional Court (CC) judgment of Sidumo & Another v Rustenburg Platinum Mines Ltd & Others (Sidumo).1 This judgment has already had significant implications for employers and employees alike and will continue to do so in the future. Many lawyers, trade unions and employees launch or oppose review applications in the Labour Court on behalf of employers or employees. In observing this litigation process, it became clear that practitioners make two fundamental mistakes. Firstly they do not appreciate the distinction between reviews and appeals and / or, secondly, they misconstrue the Sidumo test in seeking to review or defend an arbitration award. This causes serious prejudice to their clients and results in delays in labour dispute resolution which is contrary to the spirit and purpose of the Labour Relations Act,2 as amended (LRA). The application of the Constitution of the Republic of South Africa,3 legislation and case law is fundamental to the review of arbitration awards and the role of arbitrators in that process. The common thread is the notion of “reasonableness” and “fairness” which has been and continues to be of significant importance in the assessment of arbitration awards. During the course of this research paper, reference is been made to the Constitution, legislation, case law, academic papers and journal articles. The references are mostly precedent setting and authoritative in relation to reviewable irregularities in arbitration awards. The purpose of this paper is guide and assist labour court practitioners to analyse arbitration awards and identify reviewable irregularities in order to determine whether it meets the bandwidth of reasonableness within the context of the Constitution and LRA. In doing so, practitioners will be able to successfully review awards without unduly delaying the dispute resolution process. During the research process, one of the important findings was that there has been inconsistent jurisprudence relating to the application of the grounds of review and the review test itself as per Sidumo which blurred the distinction between reviews and appeals. Many review applications failed to attack the reasonableness of the decision of the commissioner, but rather focused on the cogency of the evidence presented at the arbitration and thereby incorrectly invoking an appeal instead of a review. A further challenge was that the jurisprudence created a perception amongst practitioners that there was a decline in the Sidumo test. This approach was inherently incorrect and recent judgments have clarified and upheld the Sidumo test in review applications.4 The recent landmark judgments by the Supreme Court of Appeal (SCA) clarified that reasonableness was not a separate ground of review but was to be suffused with the grounds of review set out in section 145(2)(a) of the LRA.5 Lastly, Sidumo did not postulate the bandwidth of reasonableness and it was left to the courts to determine the extent of judicial interference. There are various factors to be considered and CC judgments have provided much needed guidance on how to determine reasonableness. In essence, a wrong decision per se is not reviewable. At best, erroneous reasons or lack of proper reasons may serve as evidence for a reviewable ground that will together with other considerations require compelling proof to justify a court’s interpretation that the decision reached is not one that a reasonable decision could have reached.7 In order to obtain an award on the basis of the Sidumo test, the 4 Andre Herholdt v Nedbank [2013] 11 BLLR 1075 (SCA); Goldfields Mining South Africa (Pty) Ltd v CCMA [2014] BLLR 20 (LAC). applicant must thus assail not only the commissioner’s reasons, but also the result of the award.

In early nineteenth century Lower Canada, a direct relationship existed between the colony's laws of employment and the nature of its economy. As the artisanal and manufacturing centre of British North America, Montreal, in the first third of the century, had a pre-industrial economy. Its legal treatment of the master/servant relationship was established and directed by masters, and drew heavily upon the spirit of the pre-industrial traditions of English common law, emphasizing the criminal liability of servants failing to respect contractual obligations. Montreal's domestic servants, who were drawn from the poor and popular classes, and included mostly women and minors, were often at the greatest disadvantage in this legal system, because of their gender and economic backgrounds. Not only did their masters and mistresses have economic and social advantages, but they also controlled the legal system.

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