Part II of the International Labour Organisation Convention 158 recognises operational requirements of an organisation as a ground for dismissal. Section 213 of the Labour Relations Act describes operational requirements reasons as requirements based on the economic, technological, structural or related needs of an employer. The employer‟s needs in case of operational requirement dismissal must be separated from the other reasons for dismissal, such as misconduct and incapacity. Operational requirements dismissals are governed by section 189 of the LRA. The LRA draws a distinction between small and large scale dismissals and regulates them separately. Section 189 control small scale dismissals, while section 189A pertains to large scale dismissals For substantive fairness of a dismissal for operational requirements, the employer must prove that the said reason is one based on operational requirements of the business. The employer must be able to prove that the reason for the dismissal falls within the statutory definition of operational requirements. Employers are not allowed to use retrenchment to dismiss employees who they believe to have performed unsatisfactorily. This means that employers are not entitled to retrench for ulterior reasons, than those of operational requirements.The Labour Court has held that an employer may not under any situation retrench an employee on a fixed-term contract if the termination takes place before the contract of the employee ends, unless the contract of employment makes provision for termination at an earlier date. Retrenchment in this situation will amount to a breach of contract. Another point of interest in dismissals for operational requirements is that the Labour Relations Act states that it is not unlawful to dismiss a striking employee for reasons based on the employer‟s operational requirements. In relation to the selection criteria to be used during these dismissals, the Labour Relations Act again states that if an agreement cannot be reached between the consulting parties, then the employer must use criteria that are fair and objective.

Section 23 of the Constitution provides that everyone has a right to fair labour practice. The constitutional right to fair labour practices includes the right not to be unfairly dismissed and is given effect to by section 185 of the LRA. The constitutional right not to be unfairly dismissed is given effect to by Chapter VIII of the Labour Relations Act 66 of 1995 (the LRA), which provides a remedy for an unfair dismissal. Schedule 8 of the LRA contains a “Code of Good Practice: Dismissal”, which the Commission for Conciliation, Mediation and Arbitration (the CCMA) and the Labour Courts must take into account when determining the fairness of a dismissal. The LRA expressly recognises three grounds for termination of the employment contract namely; misconduct on the part of the employee, incapacity due to an employee’s poor work performance, ill health or injury and termination due an employer’s operational requirements. In terms of the LRA, a dismissal must be procedurally and substantively fair. The requirements for procedural and substantive fairness are contained in Schedule 8 of the Code of Good Practice: Dismissal. The provisions of section 185 of the LRA apply to all employers and employees in both the public and the private sectors, with the exception of members of the National Defence Force, the National Intelligence Agency, the South African Secret Service and the South African National Academy of Intelligence. Section 213 of the LRA defines an “employee” as any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration and any person who in any manner assists in carrying out or conducting the business of an employer. Section 200A of the LRA sets out the presumption as to who is an employee. This is a guideline to assist in determining who is an employee The Basic Conditions of Employment Act 75 of 1997 (the BCEA) sets minimum terms and conditions of employment including the notice of termination of employment. Under the common law an employment contract of employment can be terminated on either the expiration of the agreed period of employment or on completion of the specified task in cases of fixed-term contracts. Also, in terms of general contract principles an employment contract may be terminated by notice duly given by either party or by summary termination in the event of a material breach on the part of either party. The death of either party may terminate the employment contract. However, the death of an employer will not necessarily lead to the contract’s termination. An employment contract may also terminate by operation of law or effluxion of time namely retirement and coming into being of fixed-term contracts, by mutual agreement, employee resigning, due to insolvency of the employer and due to supervening impossibility of performance. In the circumstances indicated above, the termination of the contract of employment does not constitute dismissal. This means that the CCMA and the Labour Court do not have jurisdiction to determine should the employee allege that his or her dismissal was unfair. It has been argued that the instances where a termination of a contract of employment is terminated, but there is no dismissal should be scrutinised to avoid a situation where employees are deprived of protection afforded by the fundamental right not to be unfairly dismissed. There have been some instances where employment contracts contain clauses that provide for automatic termination of employment contracts. It has been held by the courts in various decisions that such clauses are against public policy and thus invalid. The Labour Court stated that a contractual device that renders the termination of a contract something other than a dismissal is exactly the exploitation the LRA prohibits There are various court decisions providing guidelines of circumstances in which termination of employment may be regarded as not constituting dismissal. The main focus of the treatise is to discuss these instances and critically analyse the approach taken by forums like the CCMA, bargaining councils and the Labour Court in dealing with such instances

Christian life today has been influenced by countless influences from the external world. Although these external factors have a significant bearing on the church of Christ, the greatest challenge however manifests itself from within the latter. Where the core doctrine of the church constitutes issues of theological and Christian importance, they seem to slowly dissipate and the practices of the secular world seem to take ownership of the church of Christ. The Reformed church has within its confines the three marks of the church whose sole purpose is to ensure that the church of God remains and continues to be the true church of Christ. These Three Marks are: (a) the proclamation of the Word; (b) the correct administration of the sacraments, and (c) the correct exercise of discipline. Among the three marks, discipline acts as a catalyst that enables the survival and proper continuance of the other two marks and thus the true church of Christ. These Three Marks prescribe the basic fundamentals of the Uniting Reformed Church in Southern Africa (URCSA) as a Reformed Church and thereby serve as a primary tool for this church. Discipline, therefore, forms an intrinsic part of this church. However, as a controlling mechanism, its influence and/or instillation appears to be neglected. This quagmire may very well be attested to the overemphasis of democracy (of/or relating to majority rule doctrine) in preference to theocracy (God as the ultimate authority in our lives), where even matters of high religious stature are being compacted to human decision-making processes. These influences needless to say are key in the regression and/or progression of Christian life and life in general. However, their inclusion within the Christian doctrine should not be cumbersome to the latter. The Christian way of life and doctrines should be holistically adhered to without fear or favour. The main purpose behind the formation of these marks by the Reformed church was to sustain the true church of Christ and the only way to ensure this sustainability, was to be consistent in exercising these marks. The church therefore has an obligation towards God and its members to be consistent in carrying out its mandate from God through the scriptures as the creator and father of the church and the world at large. The premonition that forms the basis of this research is that within the three prevalent marks of the church, there appears to be certain discrepancies in that they are not all carried out in unison and are not consistent with each other. With the over-emphasis of one above the other, the church of God could be heading towards vanity, and all its efforts could be fruitless. It is also my conviction that the starting point for rolling out these three marks lie with the leadership of the church by the General Synod, Regional Synods, Presbyteries, Ministers and their church councils. If found that any of these key adherents are not protagonists of these marks, then they would have neglected their God-entrusted responsibilities and their accountability towards the entire community of believers. It is in this regard that this research seeks to implement a litmus test of where the URCSA stands in terms of executing its mandate with relation to the three marks of the church viz; proclaiming the word, administering the sacraments and more importantly, exercising exercising discipline as these marks form the sinew that binds the entire church together. The church of Christ as an entity is engaged in service, which is not to be haphazard in nature, but must be structured. This service begins with serving God, serving one another and finally serving the world at large. This will ensure that the church of God maintains its holiness. For this holiness to be ensured, the church of God has to be open to discernment and allow God take charge of His church. Such uncertainties can be verified only by looking into discipline as the sinew that brings these three marks together. The reason for this approach is that, the first two marks are prescriptive with more parameters than discipline has, whereas discipline can be easily influenced. It is to the benefit of this task that much attention be given to discipline as the last mark of the three, as it is prone to abuse, because it relies mainly on human behaviour, attitude and/or approach to the Christian life. Therefore, the purpose of this dissertation is to outline the possible disintegration of discipline as the sinew that binds the three marks of the Reformed Church in general and URCSA in particular within the Southern Synod. important to note that discipline in the lower strata of the church is carried out religiously without question. The notion that prompted this topic is that contrarily, those who occupy the highest echelons of the church (leadership in the church, ministers and evangelists) do not appear to be enjoying the same reception regarding discipline. The challenge that faces the URCSA is how to maintain equal treatment of the three marks of the true church in a democratic society in the light of the service of God, one another and the world. / Philosophy, Practical and Systematic Theology / M. Th. (Systematic Theology)

This Doctoral thesis entitled the Constitutionality of Employers' Investigative Procedures and Disciplinary Hearing Processes with Specific Reference to Dismissal of Employees on the Basis of Criminal Misconducts in South Africa, focusses on individual labour law principles of fair labour practices entrenched in section 23(1) of the Constitution. The thesis deals with fairness in situation where an employee who is suspected of committing a criminal act is investigated and subsequently goes through a disciplinary hearing for dismissal. It determines the extent to which an employee’s criminal guilt is decided before dismissal. As such, the thesis is based upon South African judicial interpretation of the right to fair dismissal. In the process the thesis examines the application of principles informing the employer’s duty to provide fair reason concerning the dismissal of employees criminal suspects. In examining if employers observe constitutional transformative objective when conducting criminal investigations and disciplinary hearings - the thesis reviews the extent to which the employer respects constitutional rationales of equity based on the principles of natural justice. These natural justice principles are the basis upon which section 23(1) fairness is founded. Section 23 (1) is implemented through the LRA provisions. The thesis then concludes that, only one principle of natural justice - audi alteram partem is respected within employer flexibility-based fairness while the other principle - nemo judex in propria sua causa is ignored. It is this denial that causes serious procedural challenges in the quest for equity intended in section 23(1) fair labour practices. It is upon these foundational equity concerns that this thesis opposes the flexibility in employer’s criminal investigations and disciplinary hearing processes entrenched in item 4 (1) of Schedule 8 of the LRA fair procedure for dismissal of employees suspected of criminal acts. The thesis interlinks labour law and criminal law to advocate for the missing constitutionally justiciable fairness for employees who have committed criminal misconducts. It argues that the current judicial interpretation of labour law fairness is based upon the principle of flexibility underlying dismissals, asserting that fairness based on flexibility breeds informal procedural processes which exempt employers from observing crucial constitutional fairness principles expressed through proportionality-based prescripts. The thesis concludes that the practice of including the right against self-incrimination in employment law, done in other common law countries be introduced into the South African labour law through section 39 of the Constitution so that the identified procedural challenges are regulated. / Mercantile Law / LL.D.