M.Phil.

Suspension as a form of an unfair labour practice can be of two categories. There could be a situation where an employer suspends an employee as a disciplinary sanction after an employee has committed an act of misconduct. This is often referred to as a punitive suspension. An employer may also suspend an employee pending a disciplinary hearing. In this case the employee has not yet been found guilty because the investigation into the alleged misconduct is still on going. The employee may be suspended as a way of preventing him from interfering with the investigation process into the alleged misconduct. This form of suspension is often referred to as a preventative suspension. It is very important to note the distinction between the two forms of suspension because the processes that are followed when effecting them are different. Failure to acknowledge the difference might result in a situation where an employer might be effecting a preventative suspension but the consequences might be that of a punitive suspension and end-up being an unfair labour practice. Suspension is a disciplinary measure, and it is important to note that in the event that the employer elects to implement a suspension, its conduct must be disciplinary in nature and intent and should be corrective rather than punitive.Unlike dismissals where the Code of Good Practice of the Labour Relations Act, No 66 of 1995 provides guidance on what constitutes procedural and substantive fairness, there are no guidelines on what constitutes procedural and substantive fairness when it comes to suspensions. This has resulted in a situation where suspension is treated as a minor aspect of disciplinary measures that is frequently abused as it is often on full remuneration. This, however, does not allow an employer to suspend employees at will, without merit and without following proper procedure. Suspension could have severe adverse effects on employees and often affects their reputation, goodwill, human dignity, self-esteem and the right to meaningful association and work. It is for this reason that suspension must be effected in a way that is procedurally and substantively fair.Punitive suspension is implemented as a sanction and is often without pay and is a last resort prior to dismissal. Preventative suspension occurs prior to a disciplinary hearing, with the aim of temporarily removing the employee from the workplace to enable the employer to conduct a proper investigation without interference. Unfortunately preventative suspensions are often abused by employers in that they protract over extended periods of time, making the preventative suspension punitive in nature, to the extent that the courts have been forced to intervene and lay down stringent requirements that must be met in order to prevent such abuse.There are various requirements for suspension which range from the intention of the employer, the audi alteram partem rule, sufficient reasons prior to suspension to period of suspension. Most employment relationships are governed by disciplinary codes or collective agreements, which often place limitations on the concept of suspension. Some codes provide for special leave at the option of the employee, which the employer often abuses instead of utilizing the preventative suspension option. This, however, is more often than not to suit a political agenda.In the event of non-compliance by an employer, an employee is not left remediless. An unfair suspension constitutes an unfair labour practice and an employee has the right to refer such dispute to the relevant labour forums like the CCMA or the relevant bargaining council. Employees are cautioned not to refer their disputes to the Labour Court for final relief, but rather to only approach the courts for urgent interim relief, like interdicts.

In response to concern about the model of trade and investment liberalization reflected in existing and proposed trade and investment agreements (TIAs), efforts have been made to balance the economic orientation of trade with social considerations. One proposal that has garnered significant attention in this regard is the social clause (SC): a set of labour rights to be attached to the text of TIAs. Although the idea of including labour rights in TIAs seems laudable, significant opposition to the particular SC recommendations developed by Canadian and international labour organizations has emerged. Some critics charge that the addition of a clause to TIAs will not only prove unproductive, but will actually serve to legitimate problematic aspects of these agreements. Others insist that the content of the SC will exacerbate existing inequalities in the international trade order. In this thesis, I reconstruct debate over the SC to determine whether this instrument can effectively contribute to the realization of a more socially responsible trade and investment regime. Using proposals advanced by the Canadian Labour Congress as a key point of reference, I argue that there are resources available to clause proponents to respond to claims that the SC is an inadequate approach to the goal of resisting the current model of liberalization. As such, there is room to resist the conclusion that the SC should be rejected in its entirety. While it may be possible to preserve the SC approach, however, the same cannot be said about the content of current clause proposals. Criticisms of the narrow range of issues covered by existing SC recommendations clearly demonstrate that a rethinking of the content of the clause is not only warranted, but also necessary. Accordingly, I conclude by exploring three considerations that should be factored into the development of what would constitute a more adequate SC: first, existing patterns of inequality in the international trade system; second, the range of issues addressed by the clause; and third, the location of the clause within the context of the international trade regime. / Graduate and Postdoctoral Studies / Graduate

M.Phil. / Problem: Writer has identified a lack of authoritative guidelines on how to properly administer a po;ygraph test and subsequently present evidence on such test, before dispute resolution and/or adjudicating bodies. Purpose: In short, writer would attempt to analyse the various shortcomings in the manner that labour practitioners and/or presiding officers have dealt with expert evidence, and the admissibility and/or reliability of polygraph tests, over the past two decades. After identifying these shortcomings, writer would attempt a comparison of the South African position with that of the United States of America. Thereafter, writer would make certain suggestions on how the situation may be corrected, so as to attain legal certainty on the subject. Research Methodology: Writer will consider the history of the Lie Detector Test and will consider the scientific operation of such Test. Writer would further analyse the South African legal position on the subject of expert evidence and polygraph testing, including legislation, case law, academic articles, etc. Writer would also endeavour to compare the South African position with that of the United States of America, once again reviewing legislation, case law and academic guidelines. Suggestions: Writer will present practical guidelines to the employee undergoing the test, the polygraph exarr.:ner and the adjudicator at the disciplinary hearing, Labour Court, Commission for Conciliation, Mediation and Arbitration or Bargaining Council. In conclusion, writer will propose that a Code of Good Practise, similar to the current legislation in the United States, be promulgated. Such Code, or similar legislation, should contain a detailed set of guidelines on the evidentiary value of evidence on polygraph testing and the manner that same should be presented during litigious proceedings. In addition, same should set out strict requirements for the administration of valid polygraph tests, i.e. that same should be undertaken voluntarily, that the proceedings must be video recorded, etc.

Yes / We examine the role of generalized social trust in substituting for employment protection legislation. Using foreign direct investment from the US to a sample of OECD countries, we find that trust diminishes the importance of formal employment regulations in investment attractiveness.

by Ying Wang-bun. / Thesis (M.B.A.)--Chinese University of Hong Kong, 1981. / Bibliography: leaf 59.

published_or_final_version / Public Administration / Master / Master of Public Administration

Globalization has favoured a new type of business: Multinational Enterprises (MNE). MNE distinguish themselves from national businesses in the sense that they continue to be governed, in their relationship with their employees, by the national law where they operate. This contradictory dualism is the source of great tensions and uncertainties with regard to the future of national and international labour law standards. In a first part of this thesis, we study the International Labour Organization (ILO), which is the international body competent to adopt international standards and apply them. In the second part, we examine the phenomenon of national labour laws extraterritoriality and its manifestation in some jurisdictions. Finally, we explore the justifications put forward for the extraterritorial application of national laws, in particular when these national laws incorporate "fundamental" international labour standards.

The adoption of a new constitution, the changes in legislation, and the well-known shift in policies and State practices introduced by the Chavez administration, are some of the factors that persuaded me to examine not only the legal protection but the actual exercise of internationally recognized core labour standards in Venezuela, notably freedom of association and the right to collective bargaining, the elimination of forced labour, the abolition of child labour and the elimination of discrimination at work. / Given the structure and nature of the ILO, its mechanisms of enforcement are limited. Despite the successful ILO objective of promoting compliance with workers' rights, certain Member States like the Government of Venezuela, continue to violate labour rights. This situation requires the search for alternatives. / The idea that inspired this paper was an attempt to look for alternatives in regionalism. The hypothesis is that a sub-regional approach through the Andean Community, comprising Andean countries, offers a more effective means to protect labour rights in Venezuela than an international approach through the ILO. However, the solution points more to a joint international-regional approach to better ensure workers' rights in Venezuela and the Andean region.

This thesis analyses the Mexican legal framework and the public policies implemented by the Mexican government regarding female labour from an international perspective. The position to be argued throughout the thesis is that the Mexican government has not fulfilled its international obligations derived from the treaties and international conventions that directly or indirectly provide for women's labour rights. The thesis proposes a number of legal reforms and public policies that once properly enforced and implemented by the Mexican government would provide for gender equality in the Mexican labour market.