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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Magister Legum - LLM

Section 26 of the Labour Relations Act 95 of 1996 makes provision for the introduction of closed shop agreements at the workplace between majority unions and employers. All employees covered by such agreements are required to be members of such unions or otherwise face the possibility of dismissal. "Conscientious objector" employees are an exception to this rule. The purpose of this submission is to investigate the constitutional validity of s26 in the light of the fundamental right to freedom of association in the Constitution of the Republic of South Africa, 1 996 whilst investigating the position of "conscientious objectors" in certain foreign jurisdictions. / Thesis (LL.M. (Labour Law))--North-West University, Potchefstroom Campus, 2006.

Section 26 of the Labour Relations Act 95 of 1996 makes provision for the introduction of closed shop agreements at the workplace between majority unions and employers. All employees covered by such agreements are required to be members of such unions or otherwise face the possibility of dismissal. "Conscientious objector" employees are an exception to this rule. The purpose of this submission is to investigate the constitutional validity of s26 in the light of the fundamental right to freedom of association in the Constitution of the Republic of South Africa, 1 996 whilst investigating the position of "conscientious objectors" in certain foreign jurisdictions. / Thesis (LL.M. (Labour Law))--North-West University, Potchefstroom Campus, 2006.

Magister Legum - LLM

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 study deals with the impact of Labour Relations Act (Act 66 of 1996) at Vista University (Mamelodi Campus) from the year 1981-2004. Vista University was an academic institution which was established in 1981 under the Vista University Act (Act 106 of 1981). The dissertation has convincingly argued that the management of Vista University needed to comply with the principles of the Labour Relations Act (Act 66 of 1995). The study has shown that the Act had a negative impact on the employee-management relationship. The study proposes and recommends that the management should create a good labour relationship, manage conflict between employers and employees, maintain effective communication, and promote ethical behaviour and collective bargaining. The study, further, notes that principles of conflict resolution subjected to the Labour Relations Act (Act 66 of 1995) should be applied in a fair way and the techniques for attainment of conflict such as avoidance, accommodation be applied to resolve a situation. / Dissertation (MAdmin (Public Administration))--University of Pretoria, 2007. / School of Public Management and Administration (SPMA) / unrestricted

South Africa’s Labour Laws should undergo drastic changes in 2014 when new amendments take effect. The bills amend the Labour Relations Act 66 of 1995 (LRA), Basic Conditions of Employment Act 75 of 1997 (BCEA) and the Employment Equity Act 55 of 1998 (EEA). These amendments originate from the increasing “casualisation” of work prevalent in the South African Labour market and aim to address the phenomenon of labour broking, the continuous renewal of fixed-term contracts and unfair discrimination regarding wages amongst others. The legislature effected additional amendments to these Acts to align them with new developments, to improve the functioning of the Commission for Conciliation, Mediation and Arbitration (CCMA) and to fulfil South Africa’s obligation as a member of the International Labour Organisation (ILO). 1 In addition, the amendments attempt to clarify the wording of the Labour Relations Act (LRA) to elucidate numerous significant judicial interpretations of various provisions of the current Act as well as to close what some believe to be loopholes in current legislation. There are differing views on the possible effects the amendments could have on the country; some believe that it will damage business while others believe it will affect job creation. 3 According to Bosch, the amendments allow employers flexibility without depriving employees of rights properly due to them. 4 The researcher emphasises topical issues such as the need for temporary employment services, entitlement to organisational rights and the abuse of fixed-term contracts and further discusses, to a lesser extent and focusing on discrimination, the Basic Conditions of Employment Act5 (BCEA) and the Employment Equity Act6 (EEA).