Thesis (LLM. (Labour Law)) -- University of Limpopo, 2012 / In Joseph v University of Limpopo & Others (JA14/09) [2011] ZALC 8 (13 May 2011) the Labour Appeal Court affirmed that there was unfairness in the process adopted by the employer in failing to renew the employee’s fixed term contract. This research paper examines the Labour Appeal Court’s reasoning in this case, with particular focus on the development of an implied term that each party to an employment contract owes the other a mutual duty of trust and confidence, and general reasonable behaviour. This paper further argues that mutual trust and confidence in the employment context protects the legitimate expectations of employees by serving as a bulwark against illegitimate conduct or acts of on the part of the employer designed or likely calculated to destroy the employer-employee relationship, thereby ensuring fuller protection of an employee’s constitutional rights. Joseph v University of Limpopo & others is of great significance. It indicates that the employer’s ability to rely successfully upon its prerogative not to renew fixed term contract where an employee has legitimate expectation of renewal may be contingent on its having acted in a manner consonant with mutual trust and confidence.

(MBA) North-West University, Mafikeng Campus, 2005

The purpose of this treatise is to develop a spirit of understanding affirmative action as a strategy that gives South Africa a human face of equality. The strategic development of affirmative action as part of Employment Equity Act is based on equality at workplace. This work takes note of the need to integrate human resource development for employment, productivity and education system that is based on formal education, prior knowledge education (RPL) and previous experience. The imbalances were designed to be of racial reflection therefore the redress process is racial in character but non-racial in content as the envisaged society is a non-racial society. The historical background of inequality and racial discrimination is noted in the environment of employment and on how other laws were enforcing the inequality. The arguments against affirmative action are debated and valid points of such arguments are noted as points of concern that must be considered in the process to attain equality. This work views affirmative action as a process that goes beyond employment relations and work as an instrument to change society by addressing social needs and services that have a reflection of inequality. Education is viewed as the out most important process to change the lives of people as affirmative action has a requirement of suitably qualified candidates to be affirmed. In South Africa problems of inequality were political designed but were enforced by various laws that were having material and psychological impact on the previously disadvantaged. The designated groups were divided into Africans, Indians and Coloureds, in Naidoo v Minister of Safety and Security this principle of defining designated racial groups was promoted in correction to the direction that was taken in Motala v University of Natal.Affirmative action is a legal process that addresses political designed problems. It is also a process that is exposed to abuse. Corrupt officials and managers appoint employees that do not qualify for posts on the bases of political affiliation or any other ground of discrimination. This is discussed with reference to the allegations of SADTU selling posts for principals, senior managers appointed in state co-operatives. The above mentioned tendencies are noted as part of negative indicators on the process that is meant to bring equality and non-racial society where all the citizens are given equal opportunities. This work views affirmative action as a strategy that is based on achieving a society that has a human face where race shall not be a point of reference.

Text in Afrikaans / Werknemers is benewens sekere hoogs uitsonderlike gevalle altyd voor ontslag op substantiewe - en prosessuele billikheid geregtig, hetsy in 'n individuele ofkollektiewe verband. Prosessuele billikheid in besonder het 'n inherente waarde, o.a. omdat die uiteinde van 'n proses nie voorspel kan word nie. Die werkgewer word ook daardeur in staat gestel om die feite te bekom, en arbeidsvrede word daardeur gehandhaaf. Van verdere belang vir prosessuele billikheid is die nakoming van eie of ooreengekome prosedures, die beskikbaarstelling van genoegsame inligting, voorafkennisgewing en bona fide optrede deur die werkgewer. Die primere remedie in die geval van 'n onbillike ontslag is herindiensstelling, alhoewel herindiensstelling nie in die geval van 'n prosessuele onbillike ontslag beveel behoort te word nie. Die riglyne soos in die verlede deur die howe en arbiters ontwikkel is grootliks in die Konsepwet op Arbeids= verhoudinge, soos bevestig in die Wet op Arbeidsverhoudinge, 1995, gekodifiseer. / Prior to dismissal employees are always entitled to substantive - and procedural fairness, be it in an individual or a collective context, subject to highly exceptional circumstances. Procedural fairness in particular has an inherent value, inter alia because the outcome of a process cannot be predicted. The employer also thereby establishes the facts and by conducting a process, labour peace is promoted. Also of importance for procedural fairness is adherance to own or agreed procedures, providing the employee with sufficient information, prior notification and bona fide conduct by the employer. The primary remedy in the case of an unfair dismissal is reinstatement, though reinstatement should not follow in the case of a dismissal which is (only) procedurally unfair. The guidelines as developed by the courts and arbitrators have largely been codified in the Draft Labour Relations Bill, as subsequently confirmed in the Labour Relations Act, 1995. / Mercentile Law / LL. M.

Mercantile Law / LL. M. (Commercial Law)

Jurisdiction is the power or competence of a Court to hear and determine an issue between parties, as well as the power to compel the parties to give effect to a judgment. The approach of a CCMA commissioner faced with a jurisdictional challenge is therefore an important issue that requires legal certainty. Unfortunately, our case law has not been uniform with regard to the various issues surrounding jurisdiction of the CCMA, for example: what facts need to be established in order for the CCMA to have jurisdiction and at what stage of the process should a commissioner deal with the issue of jurisdiction. The purpose of this treatise is to consider the various approaches of our courts to the issue of the jurisdiction of the CCMA and to determine what approach is practically best suited for CCMA commissioners when the issue of jurisdiction is in dispute. The research methodology is based on the various approaches of our courts to the jurisdiction of the CCMA as set out in Bombardier Transportation v Mtiya [2010] 8 BLLR 840 (LC). The more practical “third” approach as proposed by van Niekerk J, in Bombardier Transportation v Mtiya [2010] 8 BLLR 840 (LC), has been favoured by the Labour Court and the CCMA following the judgment. The correct approach of a commissioner when dealing with specific jurisdictional facts such as condonation and the jurisdiction of a bargaining council will further be considered. However, the predicament that commissioners face is that the Labour Appeal Court’s approach to jurisdiction is in conflict with that of the Labour Court’s approach. In conclusion, it is submitted that the Labour Appeal Court must pronounce on the issue of jurisdiction, taking into consideration the approach of the Labour Court as to create certainty regarding the correct approach of a commissioner when faced with a jurisdictional challenge.

M.Phil. / The South African Police Service was formed in 1913 to realise the maintenance of Law and Order and hierarchies. As a result the SAPS lacked the credibility and legitimacy in the eyes of the majority of South Africans The Police Force was associated with the abuse of human rights. When the Government of national unity assumed power in 1994, they decided there was a need to restructure the service. One of the post-1994 Government's foremost tasks was to transform the Public Service into an efficient and effective instrument capable of delivering equitable services to all citizens. This necessitated that structures, management style, approaches and practices be redesigned. Restructuring the SAPS was one of the processes of transforming the service to restore the credibility and legitimacy. It is nearly seven years since the new structure was introduced. The purpose of the research is to uncover challenges brought by the new structure. An assessment of the effect of such restructuring is necessary in order to ensure that the change of direction is appropriate. It is time for the SAPS to take stock. The main findings of the research are that, the new SAPS rank structure is conducive for the effective delivery of service as well as appropriate to achieve the Mission and Vision of the SAPS. The findings, however, revealed that the new SAPS lacked discipline. Because members are not disciplined, the community does not respect police officers like before. Again, with the new ranks juniors do not respect seniors like previously. The attitude study revealed that, although a large number of members were satisfied with the fact that they were promoted, serious dissatisfaction was caused by the system of promotion, in which the rank system undoubtedly had a major role. An assumption that SAPS employees are not happy has been proven to be true. It has generally been indicated that they were happier with the previous structure than the present one. Some of their happiness was related to facilities that were now available, achievements, recognition and advancement. The dissatisfaction brought about by the new structure was related to policies, management style and administration, promotions system, advancement, supervision, security, wages, as well as relationships with fellow employees. Among the recommendations, the main one was that members of the SAPS need to recommit themselves in order to achieve a safe and secure environment for all the people of South Africa with dignity to render a responsible and effective service of high quality and continuous strive towards improving the Service.

M.Phil. (Employment Relations) / Outsourcing as a strategy has been utilised by many organisations as a strategic initiative to improve core business functions and reduce costs. In the South African context, outsourcing includes the forced transfer of employees from one organisation to another. This automatic transfer is facilitated through Section 197 of the Labour Relations Act of 1995. In principle employees have a choice to seek employment elsewhere, but such a move is often restricted by long tenures of service, the lack of opportunities in the labour market, the psychological contract of employees with their employer, social affiliation with colleagues, perceived job security and comfortableness with familiar surroundings. Due to the forced nature of the employment transfer, employees would be subject to a change in identification or belonging, organisational culture, structures, management, operating principles and salary structures. These changes may significantly affect productivity, employee commitment and job satisfaction. Research purpose The research study explores the experiences of employees in an outsource transfer conducted under the ambit of Section 197 of the Labour Relations Act of 1995. The study reconnoitres employees‟ reactions to the forced organisational change so as to identify important psychological and organisational processes. Motivation for the study Despite the increasing practice of outsourcing in South Africa and abroad, limited research has been conducted on the experiences of employees during an outsource transfer. Employees that have been subject to an outsourcing transfer would have experienced a grave impact on their employment behaviour and attitudes. This would affect their relationship with previous colleagues, career development, contribute to lower levels of commitment and negatively influence their psychological contract. All these elements may influence the success of the outsourcing of business and should be taken into consideration when organisations decide to embark on outsourcing parts of their business. This study explores the employee‟s experiences during such a transfer of employment as a means to provide insight into the effect these experiences may have on the success of an outsource event. This study would aid management, human resource professionals, organisational development practitioners and scholars in understanding the impact of an outsourcing business decision on employees. Research Approach In the study, I followed a qualitative research approach. I aligned myself with the constructionist research tactic and explored the research participants‟ social construction of the outsource transfer experience. The study was conducted using as a case study a South African information-technology outsource service provider. Case-study research methodology was employed and seven research participants provided their experiences in unstructured interviews. Data was also gathered through participant observation and human documents such as e-mails. Main Findings On analysing the research data, the research participants‟ experiences could be grouped according to phases in the outsource transfer, themes and categories of constructs. These themes, categories and constructs were related to concepts and theories that had emerged from literature. This in turn culminated in the development of an Outsourcing Transition Model which integrated the psychological theory in literature and the concepts that had emerged from the research. The model provides for a holistic view of psychological theory within an operationally categorised phased approach that is easy to interpret and apply.

The Labour Relations Act contains a definition of a strike which reads as follows: “’strike’ means the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to ‘work’ in this definition includes overtime work, whether it is voluntary or compulsory.” The Labour Relations Act offers strikers special protection against dismissal if they conform with the Act and its provisions. Hence the distinction between those strikes and protest action in compliance with the Act, namely ‘protected’ strikes and protest action, and those strikes and protest action in violation of the Act, namely, ‘unprotected’ strikes and protest action. Participation in an unprotected strike is one form of misbehaviour. The Labour Relations Act expressly prohibits the dismissal of employees engaged in a lawful strike. Employees engaged in strike action contrary to the provisions of the Labour Relations Act may be dismissed since their strike action is deemed to be a form of misconduct. The dismissal of striking employees must be both substantially and procedurally fair.

The right to legal representation at labour proceedings of an administrative or quasi-judicial nature is not clear in our law, and has been the subject of contradictory debate in the South African courts since the1920’s. Despite the ambiguities and uncertainty in the South African common law, the statutory regulation of legal representation was not comprehensively captured in labour legislation resulting in even more debate, especially as to the right to be represented by a person of choice at these proceedings in terms of the relevant entrenched protections contained in the Bill of Rights. The Labour Relations Act 12 of 2002 (prior to amendment) is silent on the right to representation at in-house disciplinary proceedings. Section 135(4) of Act 12 of 2002 allows for a party at conciliation proceedings to appear in person or to be represented by a director or co employee or a member or office bearer or official of that party’s registered trade union. Section 138(4) of the same Act allows for legal representation at arbitration proceedings, but subject to section 140(1) which excludes legal representation involving dismissals for reasons related to conduct or capacity, unless all parties and the commissioner consent, or if the commissioner allows it per guided discretion to achieve or promote reasonableness and fairness. The abovementioned three sections were however repealed by the amendments of the Labour Relations Act 12 of 2002. Despite the repealing provision, Item 27 of Schedule 7 of the Amendment reads that the repealed provisions should remain in force pending promulgation of specific rules in terms of section 115(2A)(m) by the CCMA. These rules have not been promulgated to date. The common law’s view on legal representation as a compulsory consideration in terms of section 39 of the Constitution 108 of 1996 and further a guidance to the entitlement to legal representation where legislation is silent. The common law seems to be clear that there is no general right to legal representation at administrative and quasi judicial proceedings. If the contractual relationship is silent on representation it may be permitted if exceptional circumstances exist, vouching such inclusion. Such circumstances may include the complex nature of the issues in dispute and the seriousness of the imposable penalty ( for example dismissal or criminal sanction). Some authority ruled that the principles of natural justice supercede a contractual condition to the contrary which may exist between employer and employee. The courts did however emphasize the importance and weight of the contractual relationship between the parties in governing the extent of representation at these proceedings. Since 1994 the entrenched Bill of Rights added another dimension to the interpretation of rights as the supreme law of the country. On the topic of legal representation and within the ambit of the limitation clause, three constitutionally entrenched rights had to be considered. The first is the right to a fair trial, including the right to be represented by a practitioner of your choice. Authority reached consensus that this right, contained in section 35 of the Constitution Act 108 of 1996 is restricted to accused persons charged in a criminal trial. The second protection is the entitlement to administrative procedure which is justifiable and fair (This extent of this right is governed y the provisions of the Promotion of Access to Administrative Justice Act 3 of 2000) and thirdly the right to equality before the law and equal protection by the law. In conclusion, the Constitution Act 108 of 1996 upholds the law of general application, if free and justifiable. Within this context, the Labour Relations Act 66 of 1995 allows for specific representation at selected fora, and the common law governs legal representation post 1994 within the framework of the Constitution. The ultimate test in considering the entitlement to legal representation at administrative and quasi judicial proceedings will be in balancing the protection of the principle that these tribunals are masters of their own procedure, and that they may unilaterally dictate the inclusion or exclusion of representation at these proceedings and the extent of same, as well as the view of over judicialation of process by the technical and delaying tactics of legal practitioners, against the wide protections of natural justice and entrenched constitutional protections.