O presente trabalho tem por objeto o estudo do Processo do Trabalho numa visão principiológica, onde são examinados princípios fundamentais constitucionais do processo numa visão focada para o Processo do Trabalho, considerando as peculiaridades próprias existentes no Direito do Trabalho e suas repercussões na prática trabalhista, sobretudo em face do princípio da proteção que, neste trabalho, consta como vertente de um princípio maior que é o princípio da compensação da posição debitória complexa das partes no vínculo laboral. Na sua elaboração, efetua-se uma análise sistemática do Direito, considerando-se conceitos relativos à Teoria Geral do Direito, ao Direito Constitucional, ao Direito do Trabalho, ao Direito Processual Civil e ao Direito Processual do Trabalho. Após o estabelecimento das premissas sempre calcadas nas lições de Teoria Geral do Direito e com o desenvolvimento das idéias ligadas a uma interpretação sistemática do Direito Positivo, efetua-se uma análise das normas jurídicas, com ênfase para os princípios, verificando-se, inclusive, a prática trabalhista. Assim, o estudo parte de conceitos gerais, passando por uma análise constitucional, legal e doutrinária da matéria, incluindo um estudo mais pragmático, apresentando, enfim, suas conclusões sobre o tema: O Processo do Trabalho numa visão principiológica: Da Constituição Federal à Compensação da Posição Debitória Complexa das partes no Vínculo Laboral / This work aims to study Labor Law from a principles-logic based vision, where the fundamental principles of the constitutional process are examined in a focused vision of Labor Law, considering the peculiarities of Labor Law and its impact on employment practices, particularly in view of the principle of protection that, in this study, as part of a larger principle, the principle of compensation, positions the parties in the complex obligatory employment arrangement. It makes a systematic analysis of Labor Law, considering concepts of general Law theory, Constitutional Law, Labor Law, Civil Procedural Law and Procedural Labor Law. Following the establishment of this premise based on lessons from General Law Theory and the development of ideas related to, and from a systematic interpretation of Positivist Rights, it performs an analysis of legal norms, and labor practice with emphasis on the principles. The study based on general concepts, through constitutional analysis, legal and doctrinal matters, including a more pragmatic viewpoint, gives finally, its conclusions on the theme: Labor Law from a principles-logic based vision, the Federal Constititution and the principle of compensation in the complex obligatory employment arrangement

Dissertation submitted in fulfilment of the requirements for the MAGISTER EDUCATIONIS in the Faculty of Education at the Cape Peninsula University of Technology 2014 / The apartheid system caused severe pain, injustice and financial loss to the majority of South African people. To redress the aftereffects of racial discrimination in the workplace, the Employment Equity Act (EEA) of 1998 was established. While there is some research on the challenges of implementing the EEA legislation in universities, there is a paucity of research on the difficulties faced by Further Education and Training (FET) Colleges. The purpose of this research project was to investigate the extent to which the EEA has been implemented in public FET Colleges located in the Western Cape Province, with the specific objective of identifying possible barriers to the implementation of the EEA in these Colleges. The research question was: What types of challenges1, or barriers (if any), exist in the implementation of the EEA in public FET Colleges in the Western Cape? This study is informed by critical social theory. The design of research in this study is both qualitative and quantitative. Data were collected from Deputy Chief Executive Officers (Corporate Services), Human Resources Managers and Campus Heads from each of the four Colleges. Semi-structured, open-ended interviews and documentary analysis were used. Data were analysed quantitatively and qualitatively. Four of the six FET Colleges in the Western Cape Province were selected on the basis of their geographical location and the diversity of their personnel. Results revealed that in public FET Colleges in the Western Cape, white males and coloured females dominate top management positions. Data further showed that the Indian group is the least represented at both top and bottom levels of these FET Colleges. Although white females are fewer than their coloured female counterparts in top positions, they are nonetheless more than double the number of their black female counterparts. These results have serious implications for implementation of EEA legislation in general, and in the Western Cape specifically.

In this treatise the South African law relating to unfair discrimination is discussed. The development is traced from the previous dispensation and the few pronouncements of the Industrial Court on discrimination in employment. Thereafter the actual provisions in the law presently applicable, including the Constitution is considered. With reference to leading cases the issue of positive discrimination by adopting affirmative action measures is evaluated and reference is made to other defences like inherent requirements for the job and a general fairness defence. The conclusion is reached that South African law is developing to give effect to the notion of substantive equality with a view to eradicate the systematic discrimination of the past.

Africa as no exception. It is generally accepted that women constitute the vast majority of sexual harassment victims. Sexual harassment is therefore one of the major barriers to women’s equality as it is a significant obstacle to women’s entrance into many sectors of the labour market. The Constitution now provides that no person may unfairly discriminate against anyone on grounds of, inter alia, sex and gender. The Employment Equity Act now provides that harassment is a form of unfair discrimination. It has been said that harassment is discriminatory because it raises an arbitrary barrier to the full and equal enjoyment of a person’s rights in the workplace. Much can be learned from the law of the United States and that country’s struggle to fit harassment under its discrimination laws. The Code of Good Practice on the Handling of Sexual Harassment Cases attempts to eliminate sexual harassment in the workplace by providing procedures that will enable employers to deal with occurrences of sexual harassment and to implement preventative measures. The Code also encourages employers to develop and implement policies on sexual harassment that will serve as a guideline for the conduct of all employees. Although the Code has been subject to some criticism, particularly regarding the test for sexual harassment, it remains a valuable guide to both employers and employees alike. The appropriate test for sexual harassment as a form of unfair discrimination has given rise to debate. Both the subjective test and the objective test for sexual harassment present problems. Some authors recommend a compromise between these two tests in the form of the “reasonable victim” test. The Employment Equity Act makes the employer liable for the prohibited acts of the employee in certain circumstances. The Act, however, places certain responsibilities on the employer and the employee-victim before the employer will be held liable for sexual harassment committed by an employee. Sexual harassment committed by an employee constitutes misconduct and can be a dismissible offence. An employer may also be held to have constructively dismissed an employee, if the employer was aware of the sexual harassment and failed to control such behaviour, and the employee is forced to resign. The test for determining the appropriateness of the sanction of dismissal for sexual harassment is whether or not the employee’s misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. However, for such a dismissal to be fair it must be both substantively fair and procedurally fair.

Sexual harassment is an ever increasing drain on the resources of the modern employer, as well as serving to take up much time in terms of legal battles and court cases. The concept of sexual harassment has undergone much revision over the past decades, and South Africa is now firmly committed to the eradication of this problem. The Constitution protects and enshrines important rights like dignity, equality and the right to fair labour practices. These are further defined and protected through the application of various statutes, including the LRA, EEA, PEPUDA and the revised Code of Good Practice. In terms of statutory liability, the employer will be liable for the harassment of its employees, unless it takes a proactive stance and implements comprehensive sexual harassment policies. In this way it will escape liability. The common law vicarious liability of the employer cannot be escaped as easily. The entire concept of the law of delict is to remedy harm suffered. In terms of the common law, employers will be held vicariously liable for the harassment of their employees if it can be shown that the harassment occurred within a valid working relationship, if the harassment actually occurred through a delict, and if the act occurred within the course and scope of employment. The best way for employers to minimize their liability for sexual harassment is the implementation of training and educational policies that serve to make employees aware of what is permissible in the workplace. This will aid the employer in showing that it has done everything possible to reduce the risk of harassment, which will in turn serve to reduce the employer’s liability. To protect against the risk of expensive litigation, many employers are now investigating the matter of liability insurance – they would rather pay increased premiums than suffer alone when their employees take legal action against them. Sexual harassment is a problem that can only be solved through a concerted effort on the part of the legislature, judiciary, employers and employees. Together, these parties must ensure that all of those involved in the world of work are aware of the problem of harassment, as well as taking steps to educate and train employees so as to prevent it. Only in this way will we be able to take action to reduce this terrible problem in our country.

Sexual harassment has been in existence for a long time in the workplace without any attempt to understand, define and effectively combat this rather undesirable and serious form of misconduct. Until fairly recently, the growing problem of sexual harassment and its damaging effect have been given much attention by legal authorities and society at large. The effect of sexual harassment is that it embarrasses or humiliates the victim. The victim may also suffer from trauma which, in turn, affects his/her performance at work. Numerous definitions have been provided on what constitutes sexual harassment. Sexual harassment takes place when a women‟s sexual role overshadows her work role in the eyes of the male, whether it be a supervisor, co-worker, client or customer. In other words, her gender receives more attention than her work. Sexual harassment is also seen as unwanted conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace.1 The Bill of Rights in the Constitution2 entrenches the rights of everyone. Worth mentioning are the “right to equality”, “the right to dignity”, “the right to privacy” and “the right to fair labour practices”. Furthermore, section 6(3) of the Employment Equity Act3 states that “harassment is a form of unfair discrimination” which is prohibited in terms of section 6(1) of the same Act. Section 60 of the Employment Equity Act deals with statutory vicarious liability where the employer is held liable for his acts and/or omission to take measures to against sexual harassment or a failure to put a grievance procedure in place. Where such an employer has done what is reasonably necessary to prevent and to address sexual harassment, he/she will escape liability for the misconduct of the employee. This section also provides for mechanisms that an employer may employ to minimise liability where harassment has taken place. In addition to statutory vicarious liability is the common law vicarious liability, where the employer is vicariously liable for the delict of the employee. This form of liability is also referred to as “no-fault liability”. The employer will be held liable where the following requirements for vicarious liability in common law are met: firstly, there must be an “employer-employee relationship”, secondly, a “delict must be committed” and thirdly, the “employee must have been acting in the scope or course of employment when the delict was committed”. Liability can also be directly imputed on the employer. In this instance, it has to be proven that “the employer committed an act or omission; the act or omission was unlawful; the act or omission was culpable, intentional or negligent, and a third party suffered harm; either patrimonial damage or injury to personality; and the act or omission caused that harm”.

The focus of both academic and public debate on the expression of work-related conflict has long been focused on strikes. Substantial declines in collective disputes have been associated with more harmonious and less conflict-laden employment relations. This research deals with another, often forgotten form in which conflict is manifested, namely the settlement of individual conflicts through labour courts or employment tribunals. Its aim is to explore and explain differences in application rates to national judicial bodies both across countries and over time. Using a novel database on 23 European Union Member States, it is found that a substantial degree of variance exists; claim rates across Europe differ substantially, and countries have developed along different lines. The explosion of court applications is found to be exceptional, and stability or volatility is identified in the large bulk of EU Member States. In order to explain cross-sectional and time differences, the research draws on wide range of literature, develops a new procedural concept of conflict, and proposes a comparative neo-institutionalist framework accounting for both institutions and actors. The theoretical discussion elaborates three sets of arguments to predict claim incidence. First, it is argued that the existence of comprehensive collective industrial relations institutions, particularly employee workplace representation and collective agreements, tend to reduce the frequency of labour court claims. Second, the amount and complexity of employment regulation is argued to have an impact on the incidence of court applications. Finally, cyclical economic conditions and individual characteristics of the potential grievant are expected to predict the phenomenon. Empirical evidence is presented from a range of different data sources, such as national administrative data and large-scale surveys for three country case studies on France, Germany and the United Kingdom. Findings support that all three sets of explanations contribute to the explanation of the incidence of labour court claims. Moreover, data seem to confirm the need for an interdisciplinary approach drawing on different bodies of literature.

A central feature of sexual harassment in the workplace is that it essentially involves two sides of a coin an impairment of dignity, self-esteem, self-worth, respect, ubuntu, individual autonomy, and equality from a positive aspect and freedom from insult, degrading treatment, disrespect, abuse of trust and unfair discrimination from a negative aspect. The overlap between equality and dignity as founding values of the Constitution, constitutionally entrenched rights, and values underpinning the limitation clause in the Constitution is explored with a view to illustrating why sexual harassment is unacceptable in an open and democratic South Africa. The central theme of the thesis is that the future of the law on sexual harassment lies in the adoption of a multi-dimensional approach which focuses on dignity/ ubuntu because there can never be equality without respect for dignity/ ubuntu which is an essential pillar in the celebration of self-autonomy and humanity in a democratic society. A central focus of the research is that the harm of sexual harassment gives rise to various remedies, which are not mutually exclusive. The plaintiff can use one or more of the available remedies because sexual harassment is potentially a labour issue; a constitutional rights matter; a delict; unfair discrimination and can even manifest itself as a specific offence in criminal law. A wide range of data collection methods were used including reference to South African judicial precedent; legislation; selected foreign case law; the Constitution; textbooks; journal articles; feminist theories; and international conventions. The aim is to underscore the impairment suffered by women through sexual harassment, which includes economic harm, psychological harm, unfair discrimination, work sabotage, unequal access to employment opportunities and abuse of organizational power by supervisors. The multiple facets of the harm of sexual harassment such as treating women as sub-human, un-equal and as sub-citizens in total disregard of their constitutional rights, self-autonomy and ubuntu is highlighted in an effort to identify the essence of sexual harassment. The judicial tests, which determine whose perception of the nature of sexual harassment is decisive, are described. The focal point of the thesis advocates a judicial test for identifying sexual harassment, which is gender neutral, objective, and promotes the objects, purport, and spirit of the Bill of Rights by offering equal protection before the law. A critique of the current law on sexual harassment in South Africa is conducted in the light of the common-law principles of vicarious liability. An evaluation is made of how and to what extent the South African case law is compatible with Canadian and English authorities. This was done by broadening the scope of employment test to include approaches compatible with an abuse of power and trust; frolic of one's own; enterprise risk; mismanagement of duties; and abuse of supervisory authority and the sufficiently close nexus between the wrongful conduct and the employment. The United States supervisory harassment approach, which focuses on sexual harassment as an abuse of power or trust in employment relations, is critically regarded as having truly captured the essence of the risk of abuse inherent in the supervisor's delegated power. Statutory vicarious liability in terms of labour law is underscored because it is distinct from the common-law principles of vicarious liability in creating an element of deemed personal liability on the part of the employer for failure to take steps and ensure the eradication of gender discrimination. It is observed that women cannot be liberated as a class (gender equality) if they are not liberated as autonomous individuals (dignity). It is concluded that South African law is in harmony with the Canadian and English authorities on sexual harassment in the workplace and has the potential to deal adequately with sexual harassment cases in the workplace but only if attention is paid to the proposed emphasis and suggestions made in the thesis.

This thesis was intended to delineate the factors contributing to the formulation of the Comprehensive Employment and Training Act (CETA) of 1973--a unique attempt at overhauling federal employment and training policy as well as one of the early efforts at devolving control over grants-in- aid to the subnational level.

South Africa is faced with a huge challenge of disability discrimination and inequality. Disabled people are not enjoying equal treatment as compared to others. Those who are on the working sector are not reasonable accommodated. The study examines challenges faced by people with disabilities. The study further submit that people with disabilities should be reasonably accommodated and be retained in the working sector as they have a positive role to play in the economy. The study also looks at the various legislations and argues that they are ineffective as they fail to address the imbalances of the past. The study further suggest that there is a need for all people to understand disabled people and not to isolate them as such stigma cause people with disabilities to be unfairly discriminated against in society and in employment / College of Law / L.L.M (Commercial Law)