[Abstract]: This study identifies statistically significant associations between unfair dismissal arbitration decisions and inherent characteristics pertaining to the unfair dismissal claims. The inherent characteristics examined are the industry sector in which the employee worked, the occupational skill level of the employee’s position, size of the business, presence of human resource expertise within the business, the reason for dismissal, and the genders of both the employee and arbitrator. This research contributes to the body of knowledge on grievance activity within the workplace. It focuses specifically on arbitrated grievances and as such, AIRC unfair dismissal decisions are investigated as an exemplar of arbitrated grievance activity. This study is within an Australian context which may limit its world-wide generalisability but its strength is that it addresses across industry and across occupational data.Empirical analysis is undertaken using data collected from unfair dismissal arbitration decisions made by the AIRC during 2004 and 2005. Three hundred and eighty-four (384) cases are analysed, with 34.4% of the arbitration findings occurring in the grievant’s favour and 65.6% in the employer’s favour. It is noted that this figure is inflated in the employer’s favour because it includes cases lodged and later rejected by the commission for jurisdictional reasons. The split counting the 274 within jurisdiction cases is 51.8% in the employer’s favour and 48.2% in the grievant’s favour. The results of chi-square tests indicate that six characteristics have statistically significant association with the arbitration outcome. These characteristics are: occupational skill level of the grievant; the size of the business; the presence of HR expertise; the reason dismissed; the grievant’s gender; and the arbitrator’s gender. No association was found between the industry sector and arbitration decision, although there is a significant association between industry sector and jurisdictionally rejected claims.The collective finding of the hypotheses tests suggests that the type of aggrieved employee associated with a favourable arbitration outcome is one from an organisation of between 50 and 100 employees without an HR expert, working in a lower skilled occupation, having been made redundant, is female and appears before a male arbitrator. Whereas, the type of employer associated with a favourable arbitration outcome is one who has either up to 50 staff, or over 200 staff with an HR expert, who dismissed a male employee working in a higher skilled occupation for serious misconduct with the case before a female arbitrator.A major policy implication of this research relates to the Rudd government’s proposed legislative reforms of the unfair dismissal provisions. This study identifies disadvantaged groups of workers when it comes to dismissal practices of employers, namely employees from businesses of 50 to 100 workers and lower skilled workers. Identified also was the need for training for businesses to enable them to engage in procedurally fair redundancy processes and for gender bias awareness for arbitrators. In terms of further research, this study provides the foundation for predictive statistical analysis. The variables suitable for further analysis are occupational skill level, business size, reason for dismissal and gender in relation to their influence on the arbitration outcome. Additional descriptive research could also be conducted in terms of conducting international comparatives with a view to identifying the outputs that different legislation/arbitration frameworks produce for workers and employers.

The thesis examines the nature and extent of protection available to "whistleblowers", employees who disclose to outside bodies wrongdoing or malpractice at work. It begins with a consideration of the philosophical basis for providing protection for such employees. The legal rights of the whistleblowing employee in English law are then considered. In chapter three case law on the duty of confidence is examined and conclusions drawn on its application to employees dismissed for blowing the whistle, with particular reference to whether disclosure of information involves a breach of the employment contract. The general law on unfair dismissal is examined in chapter four to determine the extent to which an employee can claim that a dismissal for raising a concern is unfair. Protection for whistleblowing on specific issues such as race or sex discrimination, and health and safety issues is considered in chapter five. International standards governing the protection of the right to freedom of expression, in particular Article 10 of the European Convention on Human Rights, are examined in chapter six. Chapter seven comprises a comparative study of the protection available to employees who blow the whistle in the USA, where protection exists for whistleblowers both at a constitutional level and in specific legislation. A case study is included in chapter eight in which the position of employees in the National Health Service is examined in detail, with regard to their contractual position and the practical difficulties faced by those who wish to raise concerns about matters at work. A fundamental distinction drawn throughout the thesis is between two types of whistleblowing: "watchdog" whistleblowing, referring the raising of concerns about immediate threats to health and safety or of serious financial loss; and "protest" whistleblowing, referring to the participation of employees in debate on matters that are in the public interest, using specialist informztion gained from their employment. The recognition of these two forms of whistleblowing aids the analysis of the limitations of the legal protection as well as proving useful in the determining the scope of proposed reform. The argument is made that the protection currently available is inadequate and the thesis ends with proposals for legal reform.

This thesis examines the impact of individual employment protection legislation on the employment relationship in the hotel and catering industry (HeI), exactly the type of industry whose workers the employment law was intended to protect. It begins \\-ith a review of the potential effects of employment legislation on the employment relationship. It then analyses and evaluates the practical effects of individual employment legislation in hotels and catering from relevant case law. and the workings of the Industrial Tribunal system, identifying that unfair dismissal is the most important aspect. In order to ask to what extent dismissal law constrains the managerial prerogative, in the light of recent socio-economic and legal changes, employer experience of, and attitudes to existing employment rights and the Industrial Tribunal system are assessed. This is achieved by means of a postal questionnaire to employers in the industry. This is then augmented by follow-up semi-structured interviews with the employers. The legislation was found to have more effect on employer behaviour than is apparent prima facie. The ways in which many employers seek to circumvent the provisions of the law provides evidence of this. The high rate of dismissal in the industry shows, however, that employers are not constrained from using dismissal. Rather, the manner of making dismissals is more formalised due to the threat of tribunal actions. The actual incidence of dismissal could well be far higher since it appeared that some employers did not regard the termination of employment of an employee without the service qualitication as a dismissal. Tribunal actions themselves are quite uncommon, given the high incidence of dismissal. The low success rate for employers at tribunals, and the acknowledgement by employers that procedural requirements were often not met during disciplinary matters, suggests that arbitrary management practice is still widespread.

Thesis (M.Law (Labour Law)) --University of Limpopo, 2012 / This research is titled ‘Compensation as a remedy for unfair dismissal, a comparison of South African and Australian labour law’. The Australian labour law systems and structures share some important features with South African labour law jurisprudence pertaining to the awarding of compensation as a remedy to unfairly dismissed employees. Some of these important features include the method of calculating compensation and the existence of a compensation cap. The research sets out, amongst other things guidelines or directives to be followed by adjudicators of unfair dismissal dispute in South Africa when awarding compensation, and highlight comparative analysis of South African and Australian labour law approach on compensation as a remedy for unfair dismissal.

The aim of this research is to investigate the implications of unfair dismissal within the boundaries of Omani labour law with particular relevance to the role of Shari’a. Shari’a itself does not provide a legal code, contract law, or a law of tort as yet but it does provide examples of applicable rules, supported with analogies, to deal with employment. The basic principles of forming a contract in Omani Commercial Law; English Law and Shari’a are similar; however, they differ in application. Likewise, the principles of the employment contract are similar with a few differences being seen in implementation; specifically with regards to unfair dismissal issues. This research used a qualitative approach that has enabled the generation and analysis of data from multiple sources including literature review, semi-structured interviews, court cases, Shari’a implied employment contract principles as found in the Qur’an, the Sunnah and relevant Islamic texts. The research shows that the main reasons for employee dismissal can be categorised into: poor performance, disobedience regarding the contractual rules and regulations, absenteeism, aggressive behaviour and an extreme critical attitude in the work-place. From the employee’s perspective, the main reasons for filing cases at Oman Courts were to seek justice, to obtain fair compensation or to highlight the moral values that form the Islamic code of practice. In contrast the employers considered seeking financial gain and revenge as the motivating factors for employees for filing court cases. There obviously is a mismatch to the reasons by each side and the key findings from this research suggest that there is a modest impact of the legal aspects of Shari’a on the Omani Law of Contract and the Employment Law though it is normally conceived by the public that Shari’a is the fundamental law that governs all aspects of muslim life. There needs to be an overwhelming expectation and requirement to develop procedures in the Omani Employment Law that expedite the process of dealing with dismissal cases and the propositions of establishing an arbitration committee may seem to be a way forward. In addition, the establishment of a Labour Court is paramount as at present the employment cases are heard in the Commercial Courts. This will align with the approach taken in the English system where the Employment Tribunals and the Employment Appeal Tribunal oversee cases and minimize delays in achieving justice. There is also a strong argument that there needs to be a review of Article 40/35/2003 that deals with employer rights to dismiss the worker without prior notice in order to establish a solid foundation for justice in the Sultanate of Oman. Unfair dismissal is a phenomenon that impacts on the employee, the employer, the employee’s wider family network and society. This study provides an in-depth understanding and insight into these impacts and into the capacity of Shari’a impact to address modern employment issues in relation to the labour laws and secular laws being used in Oman today.

71 Invalid and Apparent Termination of Employment by the Employer Abstract This diploma thesis deals with an everlasting issue: invalid and apparent termination of employment by the employer. The text of the thesis is divided into five chapters, further segmented into subchapters, some of these consisting of even lower level chapters. The first chapter covers the historical development of labor law and its separation from civil law into a separate branch of law with its own code. The following chapter defines the basic legal concepts, which are employment and legal transaction, as well as the invalidity and appearance of legal transactions. The second chapter also contains a reflection on the meaningfulness of the legal institute of appearance of a legal transaction. In the third chapter are analyzed specifics of the invalidity of legal transactions in labor law and the consequences of invalidity of the employment termination. The core of the diploma thesis is formed by the fourth and fifths chapters, containing a non- exhaustive list of reasons for invalidity and apparent termination of employment by the employer and a more detailed definition of these reasons, including a thorough analysis of some contentious issues. It was also necessary to cover the ineffective delivery of a document which leads to the...

Thesis (LLM. (Labour Law)) -- University of Limpopo, 2022 / This study examines the relationship between automatic unfair dismissal under Section 187(1)(c) of the Labour Relations Act,1 and dismissal for operational reasons under Section 189 of the LRA. Dismissal is automatically unfair if the reason for dismissal is a refusal by employees to accept a demand in respect of any matter of mutual interest between them and their employer and this is according to Section 187(1)(c) of the LRA Employees have the right to refuse the new terms and conditions of employment, and they cannot be dismissed for doing so. However, if the employer’s business is in decline and thus causes financially loss to the employer, the employer may change the operation of the employment in order to sustain the employment. The employer must initiate consultation process (collective bargaining) with the employees' representatives in order to reach an agreement that protects both the employer's and the employees' interests. To avoid retrenchment, the employer and the employees’ representatives through collective bargaining have to agree to new conditions of the employment and should the parties agree on the new conditions of the employment this will automatically set aside the terms and conditions of the employment contract. In K Ngubane v NTE Limited, 2 “the court observed and noted that the requirement is that the old contract of employment must be terminated with the purpose of inducing acceptance of a demand or proposal, or the employer can simultaneously terminate the contract of employment and give the employee his/her final offer”. Before resorting to dismissal, the employer must exhaust all the alternatives available to him and this could include, inter alia, change of job descriptions since this will not have adverse financial consequences for the workers. If the employees refuse to accept the demands of the employer that were aimed to avoid retrenchments for operational reasons, the employer may dismiss them in accordance with the provisions of section

Thesis (LLM. (Labour Laws)) -- University of Limpopo, 2022 / This dissertation presents a legal analysis of the effectiveness of arbitration process in unfair dismissal dispute with a particular emphasis on South Africa. The use of arbitration process in resolving unfair dismissal dispute is influenced by its efficiency, accessibility and flexibility. In South Africa, arbitration process is employed by the CCMA that was established to encourage effective labour dispute. A central problem that the CCMA encounter which affects its effectiveness is the high number of unfair dismissal disputes referred for arbitration process. According to the legal research offered in this dissertation, the number of unjust dismissal disputes brought to arbitration process continue to rise every year. As a result, the CCMA is swamped by these referrals, which affects its effectiveness. According to the findings, the arbitration process is now widely used around the world to resolve unfair dismissal disputes. The extent to which the arbitration process is adopted to resolve unfair dismissal dispute varies from country to country and is guided by legislation. As a result, it has been discovered that the CCMA may benefit from the ACAS’s arbitration process strengths from the United Kingdom as well as Namibia’s arbitration process strengths. The United Kingdom results show that ACAS is able to resolve a higher proportion of unfair dismissal dispute through conciliation rather than arbitration, which reduces the number of referrals from the arbitration process. In Namibia, if parties to unfair dismissal dispute want to refer an unfair dismissal dispute for arbitration process it must be done by mutual agreement between the parties except in exceptional circumstances. All this mode of operation between United Kingdom and Namibia when resolving unfair dismissal disputes hinder high referral rate from the arbitration process. This dissertation concludes with recommendations arising from policy making that promotes the effectiveness of the arbitration process and limiting the abuse of the process.

Thesis (LLM. (Labour Law)) -- University of Limpopo, 2012

Thesis (LLM. (Labour Laws)) -- University of Limpopo, 2022 / This study discusses a legal analysis of incompatibility as a ground for dismissal in the South African labour law. Incompatibility refers to the inability of an employee to maintain a harmonious relationship with his or her employer, or unable to adapt to the corporate culture of the workplace. The corporate culture is associated with the values, beliefs and behaviour to determine how employees interact with each other in the workplace. Therefore, in cases where the employer contemplates dismissing an employee on the ground of incompatibility, procedural fairness and substantive fairness should be implemented in order for the employer/s to make informed decision and ensure that the dismissal of such an employee is effected in accordance with the procedural and substantive fairness couched in the Labour Relations Act 66 of 1995 („the LRA‟). Section 23 of the Constitution of the Republic of South Africa, 1996 provides broadly the right of everyone to fair labour practices. Consequently, the LRA was established to give effect to this constitutional provision. In terms of section 185 of the LRA everyone has the right not to be unfairly dismissed. Be that as it may, incompatibility is not clearly defined in section 188 of the LRA. In fact, there are no guidelines nor corrective measures implemented in the workplace to deal with incompatibility. Hence incompatibility is dealt with under dismissal based on incapacity. In most cases employers use their discretion in dismissing employees, thereby using improper procedure to end disharmony in the workplace. In summation, the central thesis of this study focuses on a legal analysis of incompatibility as a ground for dismissal in the South African labour law.