The dissertation investigates the fairness criteria pertaining to absenteeism and desertion. It should be recognised that desertion is a special case of absenteeism. Desertion is absence from work with the intention of not returning, thus terminating the employment contract. Absenteeism is absence from work with the intention of returning. The intention of the employee determines the employer’s cause of action. The dissertation investigates fairness criteria and applicable action by the employer pertaining to such cases in order to avoid unfair dismissal. Procedure should be fair, but can only be judged on the merits of the specific case. Fairness requires the employer to afford the employee an opportunity to state his or her case at the disciplinary hearing. In other words to give a reasonable explanation for his or her absence. Fairness also requires the court to take all surrounding circumstances into account, such as the reasonable period of absence, the employees work record and the employers treatment of similar offences in the past. Absence does not warrant automatic dismissal nor does it justify extended absence. Ultimately, the burden is to be shared by both employer and employee to ensure that the employment contract is constitutionally fair, clearly defined and precisely communicated to parties. The workplace is only an extension of the individual and the collective constitutional birth right; we all have equal right to justice, yet not all cases are the same. / Thesis (LLM (Labour Law))--North-West University, Potchefstroom Campus, 2012

The dissertation investigates the fairness criteria pertaining to absenteeism and desertion. It should be recognised that desertion is a special case of absenteeism. Desertion is absence from work with the intention of not returning, thus terminating the employment contract. Absenteeism is absence from work with the intention of returning. The intention of the employee determines the employer’s cause of action. The dissertation investigates fairness criteria and applicable action by the employer pertaining to such cases in order to avoid unfair dismissal. Procedure should be fair, but can only be judged on the merits of the specific case. Fairness requires the employer to afford the employee an opportunity to state his or her case at the disciplinary hearing. In other words to give a reasonable explanation for his or her absence. Fairness also requires the court to take all surrounding circumstances into account, such as the reasonable period of absence, the employees work record and the employers treatment of similar offences in the past. Absence does not warrant automatic dismissal nor does it justify extended absence. Ultimately, the burden is to be shared by both employer and employee to ensure that the employment contract is constitutionally fair, clearly defined and precisely communicated to parties. The workplace is only an extension of the individual and the collective constitutional birth right; we all have equal right to justice, yet not all cases are the same. / Thesis (LLM (Labour Law))--North-West University, Potchefstroom Campus, 2012

This study addresses the principles applicable to criminal capacity in the South African legal system. Focus is drawn to non-pathological criminal incapacity as a complete defence to a criminal charge. Non-pathological criminal incapacity can be described as the temporary inability on the part of the perpetrator to appreciate the wrongfulness of the conduct and/or to act in accordance with this appreciation. This mental inability is due to factors which cannot be ascribed to a pathological condition or mental illness. The study further investigates the application of the subjective and objective test as criteria for the defence of provocation and indicates the preferred test. The study also includes a discussion of the following aspects: • The study further investigates the application of the subjective and objective test as criteria for the defence of provocation Non-pathological criminal incapacity distinguished from pathological criminal incapacity • Non-pathological criminal incapacity distinguished from "sane" automatism • The role of amnesia in considering criminal capacity • The role of the expert witness in considering non-pathological criminal incapacity • Private defence versus battered woman syndrome and cumulative provocation • Criminal capacity and sentence. In the South African law the defence of non-pathological criminal incapacity was considered on numerous occasions by the High and Appeal Court, though mostly unsuccessful. It is also clear that the South African courts confuse the issue and fail to differentiate between the defences of non-pathological criminal incapacity and "sane" automatism. The study indicates that the two defences, though different, coincide. The South African courts increasingly raised the standard and requirements for a successful plea in an attempt to confine the popularity of the "new" defence of non-pathological criminal incapacity. A comparative study of the English and Canadian law indicates that provocation is only considered as a partial defence to murder, and only to reduce murder to manslaughter. The reasoning behind this was to evade the compulsory sentence of life imprisonment for murder by substituting it with a conviction of manslaughter where life imprisonment is not a compulsory sentence. The central question raised in this study is whether non-pathological criminal incapacity be a qualified and complete defence to any criminal charge in the South African law. Finally the study is concluded with a crisp summary of every preceding chapter and valuable recommendations stemming from the research are made. / Dissertation (LLM (Public Law))--University of Pretoria, 2008. / Public Law / unrestricted

Heir's Capacity Abstract The main purpose of the law of succession is to regulate the transfer of the estate from testator to the heir and also to regulate problems that may be connected with the transfer and as well to regulate the question of who is eligible to acquire the estate. This master thesis deals and focuses on the question of heir's capacity. In particular, it deals mainly with the issue and question of heir's incapacity and its legal reasons in the Czech legislation. The aim of this thesis is to analyze the current legal regulation of the legal institute of heir's incapacity and its legal reasons in the Czech legislation and at the same time to compare it with other legal institutes such as disinheritance, waiver of inheritance, refusal of inheritance and renunciation of succession right, as these legal institutes also cause the loss of succession law. The thesis is divided into 4 chapters, which are subsequently systematically divided into subchapters and points. The first chapter provides a brief explanation of the general interpretation of the concept of law of succession and its principles, which are important for this diploma thesis. At the same time, the concept of inheritance titles is explained in the first chapter, because knowledge of inheritance titles is important for the...

Submitted by Maria Aparecida (cidazen@gmail.com) on 2017-05-05T14:11:53Z No. of bitstreams: 1 Gioliano Damasceno.pdf: 996919 bytes, checksum: d57fce35b9efb87ca6031398e2cd181d (MD5) / Made available in DSpace on 2017-05-05T14:11:53Z (GMT). No. of bitstreams: 1 Gioliano Damasceno.pdf: 996919 bytes, checksum: d57fce35b9efb87ca6031398e2cd181d (MD5) Previous issue date: 2016-01-29 / The legal concept of incapacity for grant the welfare benefit of continuing provision for people with deficiency (BPC) has undergone significant change from 2011, when the Organic Law of Social Assistance (LOAS) endorsed the importance of the elements "extra-disease" - that is, those that do not concern the clinical context, but the social environment in which the subject is inserted - as determining factors for the establishment of incapacity. In this thesis, the purpose is to analyze how the fact that the expertise have been conducted exclusively by doctors and the dominance of the discourse of managerial administration in the Brazilian judiciary took, on 10 cases selected to research, to break with this biopsychosocial perspective of incapacity provided for in LOAS, giving rise, in medical reports and court decisions, to a strictly biomedical discourse. The theoretical framework has bases in Michel Foucault's ideas, especially those of your call "archaeological phase". It is conceived, in this sense, the break in question as a discursive discontinuity and makes up a reading their respective causes, outlined above, in the light of Foucault categories "formation rules" and "positivity system”. / O conceito legal de incapacidade para deferimento do benefício assistencial de prestação continuada para pessoa com deficiência (BPC) sofreu sensível alteração a partir de 2011, quando a Lei Orgânica de Assistência Social (LOAS) avalizou a importância dos elementos “extradoença” – isto é, aqueles que não concernem ao quadro clínico propriamente, mas ao meio social onde o sujeito está inserido - como fatores determinantes para a constituição da situação de incapacidade. Nesta dissertação, o objetivo é analisar como o fato de a perícia ter sido realizada exclusivamente por médicos e o predomínio do discurso da administração gerencial no Judiciário brasileiro levaram, em 10 processos destacados para pesquisa, ao rompimento com essa perspectiva biopsicossocial de incapacidade prevista na LOAS, fazendo surgir, nos laudos e sentenças, um discurso estritamente biomédico. O referencial teórico tem bases nas ideias de Michel Foucault, especialmente aquelas de sua chamada “fase arqueológica”. Concebe-se, nesse sentido, a ruptura em questão como descontinuidade discursiva e efetua-se uma leitura de suas causas respectivas, acima apontadas, à luz das categorias foucaultianas “regras de formação” e “sistema de positividade”.

Background: Work-ability is often assessed as part of the vocational rehabilitation process for injured workers. However, research highlights a concern among therapists who carry out vocational assessments that there is a lack of consistency with regard to quality and comprehensiveness using current methods of assessment. One of the reasons for this is that there are no standardized measures of work-ability available that are designed to be used for the purpose of facilitating rehabilitation. The Participation And Work-ability Support Scale (PAWSS) is a new measure, conceptualized and initially developed by Professors Lynne Turner-Stokes and Kathryn McPherson, that was designed to address this gap. Design and Methods: This research was designed to develop the PAWSS measure to the point where it had face validity, and was complete enough to be formally psychometrically tested. The design of the research involved three parts. Firstly, a comprehensive review of the literature was undertaken. This was done to identify all the aspects of work functioning that are considered to contribute to work-ability, and then consider currently available work-ability measures in relation to their suitability for assessing vocational support needs. Secondly, in phase one of the research, qualitative focus groups and interviews with stakeholders in the return-to-work process were undertaken. The purpose of this phase was to check the content of the measure against stakeholder experiences, and determine the most appropriate administration context and procedures. Interviews and focus groups were analysed using descriptive analysis, and findings were used to inform revisions to the measure. Finally, phase two of the research involved pilot testing the measure. This was carried out by contracting experienced occupational therapists to test the new measure with consenting workplace assessment clients. Feedback from assessors and injured workers, assessor testing notes and scoring were analysed to examine feasibility and acceptability of the PAWSS, and revisions to the measure were made in accordance with findings.Results: The qualitative interviews and focus groups (phase one) provided feedback and comments that informed adaptations to the measure to bring it more in line with stakeholders’ experiences of work-ability. Furthermore, this phase provided information about the context in which the measure should be administered, and this was adopted for the pilot testing. Pilot testing of the measure (phase two) showed that the measure was acceptable to both the assessors and the injured workers, and that it was feasible to administer as part of a workplace assessment. Revisions to the measure and training procedures at this stage were primarily made to enhance clarity of item descriptions and scoring decisions. Conclusions and implications for practice: Findings from the research confirmed the need for a standardized measure of work-ability that can be used to plan vocational supports and interventions. Furthermore, the PAWSS was shown to be feasible and acceptable as a comprehensive tool for assessment of the work-ability of injured workers. Further research is needed to test the reliability and validity of the PAWSS before it can be used in practice.

Background: Work-ability is often assessed as part of the vocational rehabilitation process for injured workers. However, research highlights a concern among therapists who carry out vocational assessments that there is a lack of consistency with regard to quality and comprehensiveness using current methods of assessment. One of the reasons for this is that there are no standardized measures of work-ability available that are designed to be used for the purpose of facilitating rehabilitation. The Participation And Work-ability Support Scale (PAWSS) is a new measure, conceptualized and initially developed by Professors Lynne Turner-Stokes and Kathryn McPherson, that was designed to address this gap. Design and Methods: This research was designed to develop the PAWSS measure to the point where it had face validity, and was complete enough to be formally psychometrically tested. The design of the research involved three parts. Firstly, a comprehensive review of the literature was undertaken. This was done to identify all the aspects of work functioning that are considered to contribute to work-ability, and then consider currently available work-ability measures in relation to their suitability for assessing vocational support needs. Secondly, in phase one of the research, qualitative focus groups and interviews with stakeholders in the return-to-work process were undertaken. The purpose of this phase was to check the content of the measure against stakeholder experiences, and determine the most appropriate administration context and procedures. Interviews and focus groups were analysed using descriptive analysis, and findings were used to inform revisions to the measure. Finally, phase two of the research involved pilot testing the measure. This was carried out by contracting experienced occupational therapists to test the new measure with consenting workplace assessment clients. Feedback from assessors and injured workers, assessor testing notes and scoring were analysed to examine feasibility and acceptability of the PAWSS, and revisions to the measure were made in accordance with findings.Results: The qualitative interviews and focus groups (phase one) provided feedback and comments that informed adaptations to the measure to bring it more in line with stakeholders’ experiences of work-ability. Furthermore, this phase provided information about the context in which the measure should be administered, and this was adopted for the pilot testing. Pilot testing of the measure (phase two) showed that the measure was acceptable to both the assessors and the injured workers, and that it was feasible to administer as part of a workplace assessment. Revisions to the measure and training procedures at this stage were primarily made to enhance clarity of item descriptions and scoring decisions. Conclusions and implications for practice: Findings from the research confirmed the need for a standardized measure of work-ability that can be used to plan vocational supports and interventions. Furthermore, the PAWSS was shown to be feasible and acceptable as a comprehensive tool for assessment of the work-ability of injured workers. Further research is needed to test the reliability and validity of the PAWSS before it can be used in practice.

Background: Work-ability is often assessed as part of the vocational rehabilitation process for injured workers. However, research highlights a concern among therapists who carry out vocational assessments that there is a lack of consistency with regard to quality and comprehensiveness using current methods of assessment. One of the reasons for this is that there are no standardized measures of work-ability available that are designed to be used for the purpose of facilitating rehabilitation. The Participation And Work-ability Support Scale (PAWSS) is a new measure, conceptualized and initially developed by Professors Lynne Turner-Stokes and Kathryn McPherson, that was designed to address this gap. Design and Methods: This research was designed to develop the PAWSS measure to the point where it had face validity, and was complete enough to be formally psychometrically tested. The design of the research involved three parts. Firstly, a comprehensive review of the literature was undertaken. This was done to identify all the aspects of work functioning that are considered to contribute to work-ability, and then consider currently available work-ability measures in relation to their suitability for assessing vocational support needs. Secondly, in phase one of the research, qualitative focus groups and interviews with stakeholders in the return-to-work process were undertaken. The purpose of this phase was to check the content of the measure against stakeholder experiences, and determine the most appropriate administration context and procedures. Interviews and focus groups were analysed using descriptive analysis, and findings were used to inform revisions to the measure. Finally, phase two of the research involved pilot testing the measure. This was carried out by contracting experienced occupational therapists to test the new measure with consenting workplace assessment clients. Feedback from assessors and injured workers, assessor testing notes and scoring were analysed to examine feasibility and acceptability of the PAWSS, and revisions to the measure were made in accordance with findings.Results: The qualitative interviews and focus groups (phase one) provided feedback and comments that informed adaptations to the measure to bring it more in line with stakeholders’ experiences of work-ability. Furthermore, this phase provided information about the context in which the measure should be administered, and this was adopted for the pilot testing. Pilot testing of the measure (phase two) showed that the measure was acceptable to both the assessors and the injured workers, and that it was feasible to administer as part of a workplace assessment. Revisions to the measure and training procedures at this stage were primarily made to enhance clarity of item descriptions and scoring decisions. Conclusions and implications for practice: Findings from the research confirmed the need for a standardized measure of work-ability that can be used to plan vocational supports and interventions. Furthermore, the PAWSS was shown to be feasible and acceptable as a comprehensive tool for assessment of the work-ability of injured workers. Further research is needed to test the reliability and validity of the PAWSS before it can be used in practice.

The current study addresses the fundamental role of expert evidence advanced in support of the defence of criminal incapacity. It was endeavoured to illustrate that the scientific entities of forensic psychiatry and psychology fulfil an essential and pivotal role in establishing and assessing the defence of criminal incapacity. The study proposed to illustrate the interaction between the professions of law and medicine on the backdrop of the defence of criminal incapacity. Recommendations were provided with the aim of enhancing the dialogue between the professions of law and medicine when the defence of criminal incapacity falls to be assessed. The study was approached from a dual dimensional perspective illustrating both the need for mental health experts as well as the need for adequately trained and experienced mental health experts to provide expert testimony as to an accused’s mental state when the defence of criminal incapacity is raised. The motivation for the current study is enumerated and the concepts of “criminal capacity”, “non-pathological criminal incapacity”, “pathological criminal incapacity” and “expert evidence” are, amongst others, conceptualized. It is indicated that expert evidence plays an essential role not only in cases where pathological criminal incapacity, or put differently, criminal incapacity attributable to mental illness or mental defect is raised, but also in instances where non-pathological criminal incapacity is raised as a defence. The role of the mental health expert is addressed with reference to battered woman syndrome evidence advanced in support of the defence of non-pathological criminal incapacity. It is illustrated that the defence of non-pathological criminal incapacity is in need of reform. It is in addition illustrated that legislative reform is essential to establish the defence of non-pathological criminal incapacity and to create legal certainty. The inconsistent approach in the application of expert evidence to the defence of criminal incapacity is emphasized with specific focus on the semantic distinction between the defences of non-pathological criminal incapacity and pathological criminal incapacity. The role and application of the DSM-IV in the definition and assessment of mental disorders is addressed in conjunction with the various obstacles associated with the application of the DSM-IV to the defence of criminal incapacity. The nature and scope of the basic rules of expert evidence as they would apply to mental health professionals acting as expert witnesses in support of the defence of criminal incapacity are addressed. The assessment of the probative value of expert evidence is addressed and the complexities associated therewith are espoused. The numerous ethical dilemmas faced by mental health experts are illustrated and recommendations are provided aimed at eliminating these dilemmas. A comparative study of selected principles pertaining to expert evidence in the United States of America is embarked upon to illustrate the need for a codification of the rules of expert evidence as well as effective guidelines aimed at enhancing the scientific reliability and validity of expert evidence advanced in support of the defence of criminal incapacity. Finally, conclusions are drawn and motivated recommendations are made. Law reform is proposed in the form of draft proposals for legislative reform in respect of the defence of criminal incapacity as well as a draft ethical code of conduct for mental health experts providing expert testimony in cases where the defence of criminal incapacity is raised. / Thesis (LLD)--University of Pretoria, 2011. / Public Law / unrestricted

The South Africa criminal law allows the battered woman to raise a battered woman syndrome defence in the context of non-pathological criminal incapacity. However, there is a need of expert evidence to support such defence for it to succeed in the court of law. Hence, this paper scrutinizes the task of expert evidence in support of the battered woman syndrome in order to reach the extent of its effectiveness. Nevertheless, such evidence is not indispensable but without it, the court hardly gets persuaded resulting into the failure of the defence. The meaning of battered woman syndrome is articulated in the paper as well as the fact that battered woman syndrome defence falls under the defence of non-pathological criminal incapacity. The origin and development of the non-pathological criminal incapacity has also been discussed by comparing it with pathological criminal incapacity which emanates from mental illness while the former does not originate from a mental illness. Psychiatrist are in a better position to understand the latter while psychologists are in a better position to understand the former, hence it is advisable if the court pays more attention or attach more weight to the evidence given by the psychologists if this defence is to succeed and have a brilliant future. Moreover, the possible defences available to the battered woman have been mentioned as well as the cases that used non-pathological criminal incapacity as a defence particularly with regard to the battered woman syndrome defence. Both cases that were successful and unsuccessful have been elaborated. However, the cases that failed with the defence are in large numbers than the successful ones. Although expert evidence is essential to support the battered woman syndrome defence, it is unjustly and unfairly applied on the battered woman who is an accused person in the court leading to the failure of the defence .In short the use of expert evidence has failed in its application as the two professions, law and medicine has failed to make this defence work as they have not reached an agreement concerning the battered woman syndrome defence. In addition, the paper looks at the obstacles linked with the battered woman syndrome defence as well as offering suggestions to be put in place in order to make the use of expert evidence achievable. This can only be done if both the lawyers and mental health professionals come to terms with each other where they are able to understand the battered woman syndrome and the actions which led to the situation where battered woman finds herself as an accused person. Finally, the paper concludes that expert evidence has failed tremendously in its application leading to the failure of the battered woman syndrome defence in the context of non-pathological criminal incapacity. Consequently a lot still needs to be done to protect the women who face numerous obstacles; both personal and legal as they do not face justice in court and everyone must take part to put an end to battering of women which is inhuman and morally wrong. / Dissertation (LLM)--University of Pretoria, 2012. / Public Law / unrestricted