The purpose of this treatise is to discuss the implementation of section 17 of The Employment of Educators’ Act1 with a view to examining its shortcomings in fulfilling the requirements of fairness. Section 17 makes dismissal for transgressing any of the misconduct cases listed therein compulsory. This is so because of the use of the term “must” in its opening sentence. The Constitutional Court in Sidumo v Rustenburg Platinum Mines2 emphasizes the consideration of the totality of circumstances before the dismissal sanction is imposed by an employer. These include but not limited to the importance of the rule that has been breached to the employer; the basis of the employee’s challenge to the dismissal; the harm caused by the employee’s conduct; the effect of dismissal on the employee and the length of service. The treatise argues that in its current form section 17 of The Employment of Educators’ Act does not cater for the consideration of these circumstances set by the Constitutional Court. The study will also discuss the applicable dismissal legislation in education. The Constitution of the Republic of South Africa guarantees everyone a right to fair labour practices.3 This right is further qualified by the Labour Relations Act4 in section 185. The Labour Relations Act also has in it Schedule 8 which is a Code of Good Practice: Dismissal. The Code endorses the concept of corrective or progressive discipline5 and the need to give due consideration to certain circumstances before dismissing an employee.6 The consideration of the circumstances listed by the Constitutional Court in Sidumo v Rustenburg Platinum Mines7 and the provisions of items 3(2) and 3(6) cannot be said to be well catered for under section 17 of the Employment of Educators’ Act because of the use of the term “must”. For the principle of fair labour practices to be fully accommodated under section 17 of the Employment of Educators’ Act a need to amend it is necessary. This treatise will introduce amendments that will provide for pre-dismissal arbitration as a possible approach to ensuring full compliance for fairness in dismissals that are as a result of transgressing any of the misconduct cases listed in section 17. Other amendments suggested are aimed at realigning section 17 to other child specific legislation like the Children’s Amendment Act8 and the Sexual Offences and Related Matters Amendment Act.

This treatise considers the promotion process in the workplace and focuses on the meaning of promotion and the provisions of the Labour Relations Act, 66 of 19951 (Hereinafter referred to as the LRA) relating to promotion. It also considers unfair labour practices from an employee’s perspective. Chapter 2 of this treatise discusses the processes employers should follow when dealing with promotions. Neither the LRA nor the Constitution provides employees with a right to be promoted. However, the Constitution2 provides that all workers have the right to fair labour practices. The concept of unfair labour practices was introduced in South Africa in 1979 following the recommendations of the Wiehahn Commission. For a long time in South Africa the concept of unfair labour practice was defined in broad terms and included unprotected strikes and lockouts. It was left to the Industrial Court to determine conduct which constituted an unfair labour practice. The promulgation of LRA (which took effect in 1996) provided a clear definition of what constitute unfair labour practice in the workplace. The LRA provided a closed list of practices which constitute an unfair labour practice which provided as follows: “(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee; (b) unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee; (c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and (d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.”The LRA brought about significant changes including the exemption of trade unions from committing unfair labour practice to the employers as it was the position under the old Act. There are conflicting views amongst employers and employees as well as labour law experts regarding the determination of the remedies available to applicants when unfairness has been proven in promotion disputes. It is has been observed that many awards has been successfully reviewed by employers, particularly awards that involves protective promotion. Chapter one will be an introduction regarding unfair labour practice, the originality of the concept and the changes and developments the concept has gone through. Chapter two will investigate the meaning of promotion in the workplace. This chapter will focus on the definition of promotion. Elements that constitute promotion will also be addressed. Chapter three considers the provisions of the LRA relating to unfair labour practice: promotion. However, the focus will be narrowed down from the definition of unfair labour practice to the issue of promotion as it is central to the study. Chapter four will examine the manner in which the applicants are differentiated. Furthermore, this chapter will also address the issue of whether the internal applicant should be given preference on the basis that he or she has been working in the organisation but not in the advertised post. Chapter five discusses the importance of substantive and procedural fairness in promotion processes. Chapter six examine the appropriate remedies for aggrieved applicants during the promotion process. A disappointed candidate has a statutory right to approach the relevant bargaining council to seek recourse with regard to the matter. The dispute must be referred to the CCMA within 90 days by the aggrieved applicant.

M.Phil. / A critical task in the management of human resources is the evaluation of employees. All organizations must face up to the challenge of how to evaluate, utilize and develop the skills and abilities of their employees to ensure that organizational goals are achieved, and also to ensure that individuals gain as much satisfaction as possible from their jobs while making effective contributions. The objective of performance evaluation is the following: • To identify management potential • To recognize performance through: promotion merit awards • To identify shortcomings and to rectify it • To establish training needs • To consider transfer/redeployment In order to succeed with this important management task, it is essential for any organization to have a performance evaluation system which can guarantee an objective, factual and reliable result.

M.A. / The study is about the concept of Affirmative Action in the Employment Equity Act of South Africa, however it traces the history of Affirmative Action from the United States of America and Malaysia. These two countries are found to be leading the world in Affirmative Action. The term ‘Affirmative Action’ originated from the United States of America to prohibit unfair discrimination against certain groups of people because of non-job-related characteristics in terms of Civil Rights Act of 1960. Malaysia introduced Affirmative Action to develop education and employment opportunities of the Bumiputra. Bumiputra is one of the ethnic groups in Malaysia that have suffered unfair discrimination. Affirmative Action is a concept that became topical with attempts in South Africa to increase the participation of previously disadvantaged groups in the workplace. This concept, which is accepted constitutionally, is still controversial in its meaning and practice. It is for this reason that the study attempts to dispel misunderstandings about the concept. The study distinguishes Affirmative Action from related concepts such as equal employment opportunity and reverse discrimination. In order to develop the idea of Affirmative Action, the study also makes a distinction between descriptive definitions and normative definitions. This study opted for normative definitions in order to develop an ideal of what Affirmative Action is supposed to be. The study looks at how Affirmative Action is conceptualised in the Employment Equity Act of South Africa. Through the evaluation of the concept of Affirmative Action in the Employment Equity Act in terms of my normative definition of Affirmative Action, it was found that Affirmative Action in the Employment Equity Act complies with the normative definition of Affirmative Action. The following are my conclusion: - Affirmative Action is not similar to reverse discrimination or equal employment opportunities. - Affirmative Action in the Employment Equity Act is another form of discrimination though not unfair - It redresses injustices experienced by groups who have been disadvantaged in the past. - It eliminates unfair discrimination and develops the skills of those who did not have opportunities - It promotes equal opportunities in employment and thus it is a temporary intervention in the workplace. The findings of the study concluded that Affirmative Action is essential to the economic and skills development of the disadvantaged groups in particular and the South African society in general. / Prof. G.J. Rossouw Professor H.P.P. Lőtter

LL.M. / Please refer to full text to view abstract

Magister Legum - LLM / This paper focused on how competing interests of employers and employees are accomodated in the South African Labour Relations arena. An analysis of the legislative framework was undertaken to establish how the legislation provides for changes in workplace practices as well as the protection that it affords employees against unwanted or unilateral changes. The main focus of the research was on how the South African Courts have interpreted the legislation and how it has applied the law in cases involving the changing of terms and conditions of employment, that has come before it. / South Africa

Magister Legum - LLM / This research paper examines the different forms of employment patterns that have emerged as a result of globalisation as well as the mechanisms that have been used by the legislator to accommodate those in non-standard employment relationships. / South Africa

The thesis covers the field of labour law known as employee participation in decision-making. It deals with the examination of the extent to which the Labour Relations Act 66 of 1995 (the Act) promotes employee participation in decision-making. Firstly, the analysis shows that employee participation in decision-making is an aspect of democracy, which is translated into industrial democracy in industrial relations. In South Africa the philosophical foundation of employee participation is supported by the Constitution of the Republic of South Africa Act 108 of 1996 which embodies democratic values permeating all areas of the law including labour law. Secondly, the study elucidates the jurisprudential background of employee participation in South Africa. There is evidence of the development of some principles of participation like consultation; information disclosure; and the existence of participatory forums like works councils under the LRA 28 of 1956. Thirdly, in evaluating the extent to which the LRA 66 of 1995 promotes employee participation, the following aspects are covered: the relevance and contribution of information disclosure; the effect of consultation prior to dismissal for operational requirements; the role of collective bargaining; and the contribution of workplace forums. The conclusion is reached that all the foregoing aspects of the LRA 66 of 1995 will contribute to the promotion of employee participation in decision-making. The Labour Court and the Commission for Conciliation Mediation and Arbitration can also ensure that in interpreting the Act employee participation is promoted where appropriate. Finally, employers and employees will have to accept this necessary partnership for the entrenchment of employee participation in decision-making.

This thesis traces the development of insubordination in the employment relationship. The essence of the relationship is that the employee, by contracting out his or her productive capacity, occupies a subordinate position. The primary aim is to locate and define the nature of subordination and to investigate how the breach of this position would justify dismissal as interpreted and applied by the courts. This is achieved by investigating dismissal for insubordination under the common law contract of employment, the unfair labour practice jurisdiction and the 1995 Labour Relations Act. Initially the obligation of the employee to be subordinate, an essential term of the contract of employment, is located and defined by using the tests of Control, Organisation and Dominant Impression, which theoretically indicate the true nature of insubordination. Insubordination under the common law is equated with disobedience to the lawful and reasonable instructions of the employer which were given in good faith and fell squarely within the contractual relationship. Insubordination under the unfair labour practice jurisdiction was equated with a challenge to the authority of the employer of which disobedience was a manifestation of such intention. Instructions given by the employer under the unfair labour practice jurisdiction had to be lawful, reasonable and fair. What was fair depended on the surrounding circumstances of the dismissal and a wilful and unreasonable refusal of the employee to obey the valid instructions of the employer justified dismissal Under the 1995 Labour Relations Act it is submitted that insubordination will be dealt with in essentially the same manner as under the previous jurisdiction, subject to the Act's objectives and purposes. The disobedience of the employee is to be tolerated if that employee is attempting to achieve the Act's objectives, and any dismissal as a result of the disobedience could be unfair, because the employer's conduct fiustrates the purpose of the Act. Therefore, the contractual right of the employer to expect subordination from the employee may have been whittled away to such an extent over time that it seems superficial to regard subordination as an essential term of the contract of employment.

The central concern of this study is to analyse how the pattern of development in South Africa has influenced the long term growth of productive employment in the economy. The approach adopted is to appply a model of economic dualism to the South African case. Chapter 1, p. 1.