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.

The purpose of this treatise was to determine the distinction between the contract of service (employment) and the contract of work (independent contractor). A comprehensive literary survey was undertaken so as to establish if such a distinction does indeed exist. A logical point of departure was to study the contract of service and determine how the employment relationship is established by it. It is also necessary to establish under what circumstances a contract may be terminated and what the rights and obligations of the parties to the contract were. The contract between the parties will determine remedies to the breach of contract or applicability of labour legislation. It is also necessary to establish the definition of an employee under various statutes so as to understand what remedies exist should rights be infringed upon. Statutes considered include the Constitution of the Republic of South Africa, Labour Relations Act, Basic Conditions of Employment Act, Employment Equity Act, Unemployment Insurance Act, Compensation for Occupational Injuries and Diseases Act, Skills Development Act and the Income Tax Act. The effect of insolvency of the employer on the employee is also discussed. Outsourcing has played a major role in the emergence of the independent contractor. This phenomenon is considered from the point of the employer in terms of the reasons for choosing the option of outsourcing and the associated risks. The employee perspective is also dealt with in terms of why an employee would change his/her employment status. The various tests historically applied to determine the status of a worker is also discussed. These include the control, organisation, dominant impression and economic tests. Currently the dominant impression test is the one that is being applied to determine the employment relationship. Extensive reference was made to case law. United States of America cases are referred to with specific reference to the 20 Factor Test applied by the Internal Revenue Service. South African case law is dealt wit in terms of enforcement of Bargaining Council agreements, commission-earning persons, payment for services rendered, the intention of the parties and the identity of the true employer. The emergence of the dependent contractor is also addressed. This form of worker normally falls outside of the protection of labour legislation and social security. Amendments have been proposed to various statutes to remedy the situation in South Africa. A final aspect that is dealt with is that of vicarious liability. The applicability of this aspect lies in the liability of the employer for damages inflicted by the employee.

The Department of Education, as part of the public sector, employs educators in terms of the Employment of Educators Act (EEA),1 whereas the rest of the public servants are employed in terms of the Public Service Act (PSA). If an educator is absent for more than 14 consecutive days without the permission of the employer, the educator is deemed to be discharged according to section 14(1)(a). With regard to the rest of the public sector, a similar provision is put in place, where section 17(5)(a) provides for the discharge of a public officer who is absent from his / her duties without the permission of the Head of Department for a calendar month (31 days). Sometimes long absent periods are caused by personal circumstances of the employee which are unforeseen. If the employee reports for duty after the dismissal, section 14(2) of the EEA provides that, the employee may be reinstated by the employer on good cause shown, after a post-dismissal hearing. If an employee in the public sector is discharged based on these deeming provisions, the employment is terminated by the operation of the law and there is no dismissal. This means that the employer is not responsible for the termination, meaning than there exists no option to review the dismissal. The supreme law of the Republic of South Africa (RSA) is the Constitution of the Republic of South Africa (the Constitution).5 The question at hand is whether the deeming provision of section 14 of the EEA6 is constitutional. The Labour Relations Act (LRA) goes further by stipulating that every person has the right not to be unfairly dismissed, and not to be subjected to unfair labour practice.7 Section 23 of the Constitution provides that everyone has the right to fair labour practices. Furthermore, section 33 of the Constitution provides for fair administrative action. The question is whether these provisions, dealing with the dismissal of educators, limit the employee’s constitutional right to a fair labour practice.

LL.M. (International Commercial Law) / “It is in this very context of employment relationships which have a cross-border dimension that conflict of law between individual legislative systems in the area of employment law raise complex questions of law. One of the consequences of this is that they often present the courts … which are called upon to determine the law applicable to an employment contract with considerable problems. Alongside the customary difficulties associated with interpreting the employment contract comes the uncertainty as to what the best approach is to determining the applicable law. These difficulties in judicial practice are on the increase as it becomes more common for workers to be posted, more EU citizens avail themselves of the freedom of movement for workers and more undertakings enter into relationships with firms overseas or operate places of business in other countries. The – temporary or indefinite – posting of large numbers of employees has become an important aspect of international economic relations, not only within the European internal market but, more generally, throughout the world. It is for that very reason that there is an urgent need for conflict of law rules which offer the contracting parties foreseeable solutions to the numerous problems that affect employment relationships...”Like Advocate General Trstenjak, South African writers are not ignorant of the complications that international contracts of employment bring. As correctly pointed out by Calitz, globalisation has resulted in many South African employees increasingly working for South African employers outside of South Africa and the determination of any disputes that may arise in these unique employment relationships requires the application of conflict of laws. This is problematic and the present author submits that there is a lacuna in South African private international law in respect of employment contracts involving a foreign element. A number of factors have contributed to this gap in South African private international law, namely the infrequency with which judges in South African courts have been called upon to determine such issues.

Magister Legum - LLM / This thesis examined to what extent the current legislation protects the HIV positive employee against unfair discrimination and dismissal. The study gave short medical background to HIV/AIDS and introduced HIV discrimination by giving the historical background to HIV related discrimination. From this, the extent of stigmatization against this group was introduced. / South Africa

The South African government has attempted to find a balance of interests between the employer and the employee by the introduction of the Labour Relations Act in 1995 and the Basic Conditions of Employment Act in 1997. It is critical to the health of the South African economy that these labour laws do not impact small businesses to the extent that the Gross Domestic Product of the country is negatively affected. There are conflicting reports as to how these labour laws affect small businesses. It is therefore important for government to be able to understand, define and measure the impact of its labour laws on small businesses, in order for it to strategise corrective measures, which may include reconsidering the application of the legislative directive, regulated flexibility, if required. The study was limited in the sense that it was solely based on evidence collected from employers. An interpretivist approach was applied as a research methodology to data collected through in-depth interviews. The main findings of the empirical analysis demonstrate that labour legislation does not heavily impact small firms. It was thus determined that extensive measures were not needed with regard to correcting the framework of regulated flexibility.

This thesis analyses the Employment Equity Act 55 of 1998 and its application in labour law in South Africa. After an initial examination of the general concepts with regards to employment equity and current international conventions regarding employment equity, the study will move on to examine employment equity as it stands in the law today. In examining the current law regarding employment equity, a brief historical background will be offered in order to show the legacy of apartheid: the immense disparity between the different categories of South African people in the modern era. By using this background and analysing the relevant provisions of the Constitution, it will be argued that there is a very real need for employment equity measures to bring about a true sense of equality in South Africa and that such measures are fully endorsed by the Constitution. After it has been established that affirmative action is an important tool in the creation of an equal South Africa, the measures put in place to help create this equal South Africa will be critically analysed. This critical analysis will point out certain weaknesses in the current affirmative action system. Following this critical analysis of the South African employment equity law, the employment equity systems used in Brazil, Canada and Malaysia will be examined in detail. The purpose of this analysis will be to find the strengths and weaknesses and successes and failures of these foreign systems. This will be done in order to highlight those areas of the foreign systems that can be implemented into South African law in order to make the South African employment equity system stronger. The weaknesses of those systems will also be highlighted in order to learn valuable lessons from other system’s failures so that South Africa does not make the same mistakes. The final part of this thesis will be in depth discussions and the proposal of solutions to the weaknesses of the South African employment equity system that have been highlighted throughout the thesis. These proposals will be put forward in order to ensure the most efficient and effective employment equity system in South Africa. There will also be a reassessment of the most valuable lessons learned from the foreign systems that would be easily implemented into or avoided by the South African system in order to ensure an effective employment equity system. The purpose, therefore, of this thesis is to critically analyse employment equity in South Africa. A further purpose will be to propose certain amendments and changes to the current system to ensure the Employment Equity Act is reflective of the needs of the people South Africa.