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Magister Legum - LLM

One of the most dramatic events in any employee’s working career is to be dismissed and even more so if the employee regards the dismissal as unfair. The right not to be unfairly dismissed is considered one of the most basic workers’ rights in South Africa and is also contained in Convention C158 of the International Labour Organization (ILO). Section 23(1)(a) of the South African Constitution states that: “[e]veryone has the right to fair labour practices.” Labour legislation gives effect to this right in section 1(a) and 1 (b) of the LRA which states: “to give effect to and regulate the fundamental rights conferred by section 23 of the Constitution; to give effect to the obligations incurred by the Republic as a member state of the ILO.” Section 185(a) of the Labour Relations Act also states that: “[e]very employee has the right not to be unfairly dismissed.” Section 188(1)(a) – (b) expands on this protection against unfair dismissal by providing that a dismissal will be unfair: “if the employer fails to prove … that the dismissal was effected in accordance with a fair procedure”. The pre-dismissal procedures that must be followed by the employer have been codified to some extent in the Code of Good Practice: Dismissal, contained in Schedule 8 of the LRA. In terms of section 138(6) and section 203(3) of the LRA, commissioners who are required to determine if a dismissal was procedurally fair are compelled to take Schedule 8 into consideration. The main objectives of this thesis were to critically evaluate the content and application of those provisions of Schedule 8 that establish procedural requirements to disciplinary enquiries and to recommend possible changes to the Code of Good Practice: Dismissal. It is apparent that the procedural requirements for a disciplinary enquiry in terms of Schedule 8 are vastly different from those that still form the basis of most disciplinary codes and procedures implemented by employers after the Mahlangu v CIM Deltak judgment of the former Industrial Court in 1986. It is also clear that the principles of ILO Convention C158 are given effect in South Africa’s dismissal law. Procedural fairness in disciplinary enquiries does not lie in elaborate, complex and rigid court-like procedures but in flexibility and in adhering to the audi alteram partem principle. A disciplinary enquiry is not a court case and the workplace is not a court of law. The belief that South Africa’s dismissal law is rigid and inflexible is inaccurate. A comparative analysis of South African dismissal law with ILO Convention C158 and three other international jurisdictions clearly demonstrates that the dismissal regime in South Africa makes provision for flexibility. Employers, employees, trade unions, labour consultants and lawyers are all to blame for the formal court-like procedures that form the basis of most disciplinary enquiries in the workplace in South Africa today. The guidelines provided by Schedule 8 are in line with the ILO’s principles. Consequently disciplinary enquiries should be handled according to those principles. The disciplinary codes and procedures of employers should be amended to reflect the core principles of ILO Convention C158 and the five basic guidelines contained in Schedule 8. Furthermore disciplinary codes and procedures should not be used as an inflexible set of rules but as a guideline from which some deviation is permissible in certain circumstances. / Thesis (PhD)--University of Pretoria, 2010. / Human Resource Management / unrestricted

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<p>The research conducted has been undertaken to engage the stakeholders to explore the possibility of establishing workplace forums. The gains of workplace forums with respect to sharing decision making is a distinct advantage both business and labour seemingly do not realise because of a continued resolve to negotiate conditions of service annually exclusively. The research was undertaken by designing an interview questionnaire for distribution. The population for this research includes a cross section of employers from the industry in the Western Cape, parties to the Hairdressing Beauty and Cosmetology Bargaining Council, the Employers Organisation and the Employees Organisation or Trade Union. The criteria set for the questionnaire anticipate responses of respondents to the challenges before and after the possible incorporation of section 84 of the Act Finally the research results indicate that the parties to a collective agreement in this industry still gravitate towards distributive collective bargaining by negotiating salaries, wages and conditions of employment in Bargaining Councils.</p>

This case study examines a labour relations issue which initially involves teacher employees of the Sagkeeng Education Authority of the Fort Alexander Band on one hand and the Sagkeeng Education Authority and the Fort Alexander Chief and Council on the other. The events of the issue transpire between 1981 and 1986.<p>Teacher employees, concerned with working conditions and job security, organized as a local of the Manitoba Teachers' Society which was certified under the Canada Labour Code. The Chief and Council of the Fort Alexander Band rejected the formation of the local and the applicability of the Canada Labour Code to labour relations on the reserve. Teachers were fired for union activities. Hearings were held by the Canada Labour Relations Board. Orders were issued by the Labour Board and a collective agreement was imposed by the Labour Board. The Chief and Council refused to follow the Labour Board's orders, and contempt of court hearings were held by the Federal Court. Fort Alexander officials, including the Chief and Council, were initially fined and subsequently jailed. The Minister of Indian Affairs, David Crombie, promised to initiate Department studies to examine the possibilities and implications of changing the labour relations regime to reflect Indian self-government. The dispute was eventually settled out of court but the issue of Indian government jurisdiction over labour relations remains unresolved.<p>Conceived and sanctioned by the Manitoba Teachers' Society, the Canada Labour Relations Board and the Federal Court as a labour dispute, the researcher argues that the issue is more readily understood within the context of Indian self-determination and self-government. Concepts concerning philosophical, socio-economic, cultural, legal, political and historical aspects of the relationship between Indian peoples and the Canadian state are brought to bear on the issue. Concepts of group rights versus those of individual rights are examined.<p>It is argued that the current labour relations legal regime is inconsistent with Indian self-determination and self-government. The researcher suggests jurisdiction over labour relations should be determined by First Nations' governments as consistent with the goals of self-determination and self-government. Conceptions of Indian labour relations jurisdiction are suggested.

This case study examines a labour relations issue which initially involves teacher employees of the Sagkeeng Education Authority of the Fort Alexander Band on one hand and the Sagkeeng Education Authority and the Fort Alexander Chief and Council on the other. The events of the issue transpire between 1981 and 1986.<p>Teacher employees, concerned with working conditions and job security, organized as a local of the Manitoba Teachers' Society which was certified under the Canada Labour Code. The Chief and Council of the Fort Alexander Band rejected the formation of the local and the applicability of the Canada Labour Code to labour relations on the reserve. Teachers were fired for union activities. Hearings were held by the Canada Labour Relations Board. Orders were issued by the Labour Board and a collective agreement was imposed by the Labour Board. The Chief and Council refused to follow the Labour Board's orders, and contempt of court hearings were held by the Federal Court. Fort Alexander officials, including the Chief and Council, were initially fined and subsequently jailed. The Minister of Indian Affairs, David Crombie, promised to initiate Department studies to examine the possibilities and implications of changing the labour relations regime to reflect Indian self-government. The dispute was eventually settled out of court but the issue of Indian government jurisdiction over labour relations remains unresolved.<p>Conceived and sanctioned by the Manitoba Teachers' Society, the Canada Labour Relations Board and the Federal Court as a labour dispute, the researcher argues that the issue is more readily understood within the context of Indian self-determination and self-government. Concepts concerning philosophical, socio-economic, cultural, legal, political and historical aspects of the relationship between Indian peoples and the Canadian state are brought to bear on the issue. Concepts of group rights versus those of individual rights are examined.<p>It is argued that the current labour relations legal regime is inconsistent with Indian self-determination and self-government. The researcher suggests jurisdiction over labour relations should be determined by First Nations' governments as consistent with the goals of self-determination and self-government. Conceptions of Indian labour relations jurisdiction are suggested.

The reason of discussing the influences of Law of the PRC on Employment Contracts is, pursuing the economical growth has been the main development policy from the beginning of the reforming and opening up of China. However, the derivative labour problems are getting worse. Although the PRC government passed the Labour Law of the People's Republic of China in 1995, the execution of the Law achieved little, resulting in more labour-management problems instead. For this purpose, the PRC government passed the Law of the People's Republic of China on Employment Contracts in 2007, expecting to eliminate the situation of long-term ignorance and violation of labour rights. The Law has great influences on employers in China such as decreased employing flexibility and increased operating costs. Therefore, this research intends to comprehend the influencing coverage of the Law of the PRC on Employment Contracts through investigating the Law¡¦s legislative background and its legal meaning, and adjusting future human resource systems and positioning human resource management strategies for the enterprises according to their influenced coverage. During the research process, I have consulted a large quantity of documents related to the Law and news regarding enterprises¡¦ reaction toward it. Through collecting, analyzing related documents, and interviewing cases, I found that the Law insists much on recording and reserving anything regarding labour rights in written form during the operating processes of enterprises. Besides, other influences toward enterprises including the changing of cost structures, especially the law violation costs. For example, enterprises do not have probation period, dismissing employees illegally, or the expending of economical compensation and so forth. In addition, I also found that the regulation of the open-ended employment contracts and granting the economical compensation influence enterprises fairly much. However, the two above regulations are complements of each other. The purpose of the legislation is to let enterprises and employees built long-term and stable labour-management relations. At last, I discovered that in the future, enterprises need to change the passed attitude of dealing with labour-management relations when facing the Law. They have to pay more attention on details when operating company, especially when dealing with affairs about labour rights. For example, they have to notice the details of the design of appraisal system, improving staff training, modifying the company¡¦s rules and regulations, and the new employee recruitment and so forth. To conclude, in the future, enterprises have to take a more reciprocal attitude when facing labours and managing labour relations.

Bachelor's thesis. / Format: PDF. Bibl.