The dissertation investigates the fairness criteria pertaining to absenteeism and desertion. It should be recognised that desertion is a special case of absenteeism. Desertion is absence from work with the intention of not returning, thus terminating the employment contract. Absenteeism is absence from work with the intention of returning. The intention of the employee determines the employer’s cause of action. The dissertation investigates fairness criteria and applicable action by the employer pertaining to such cases in order to avoid unfair dismissal. Procedure should be fair, but can only be judged on the merits of the specific case. Fairness requires the employer to afford the employee an opportunity to state his or her case at the disciplinary hearing. In other words to give a reasonable explanation for his or her absence. Fairness also requires the court to take all surrounding circumstances into account, such as the reasonable period of absence, the employees work record and the employers treatment of similar offences in the past. Absence does not warrant automatic dismissal nor does it justify extended absence. Ultimately, the burden is to be shared by both employer and employee to ensure that the employment contract is constitutionally fair, clearly defined and precisely communicated to parties. The workplace is only an extension of the individual and the collective constitutional birth right; we all have equal right to justice, yet not all cases are the same. / Thesis (LLM (Labour Law))--North-West University, Potchefstroom Campus, 2012

The dissertation investigates the fairness criteria pertaining to absenteeism and desertion. It should be recognised that desertion is a special case of absenteeism. Desertion is absence from work with the intention of not returning, thus terminating the employment contract. Absenteeism is absence from work with the intention of returning. The intention of the employee determines the employer’s cause of action. The dissertation investigates fairness criteria and applicable action by the employer pertaining to such cases in order to avoid unfair dismissal. Procedure should be fair, but can only be judged on the merits of the specific case. Fairness requires the employer to afford the employee an opportunity to state his or her case at the disciplinary hearing. In other words to give a reasonable explanation for his or her absence. Fairness also requires the court to take all surrounding circumstances into account, such as the reasonable period of absence, the employees work record and the employers treatment of similar offences in the past. Absence does not warrant automatic dismissal nor does it justify extended absence. Ultimately, the burden is to be shared by both employer and employee to ensure that the employment contract is constitutionally fair, clearly defined and precisely communicated to parties. The workplace is only an extension of the individual and the collective constitutional birth right; we all have equal right to justice, yet not all cases are the same. / Thesis (LLM (Labour Law))--North-West University, Potchefstroom Campus, 2012

The thesis deals with the dismissals of employees for organizational changes. This area of laubor law become very important in connection with the economic crisis beginning in the year of 2008. The main goal of this thesis therefore is, using various methods of law interpretation and relevant judicature, to find the content of very brief law regulation of artical 52 letter a) to c) Labour code. Finding that, the thesis could be used by the public as a manual for solving unclear law questions. The secondary aim of this disertation is to propose reasonable changes into the law regulation of dismissals of employees for organizational changes.

Thesis (LLM. (Labour Law)) -- University of Limpopo, 2013 / The coming into power of the democratic government played an important role in transforming South African labour law system. After the Labour Relations Act 66 of 1995 (LRA) was implemented on 11 November 1996, the old Labour Relations Act of 1956 was repealed. The law on retrenchment forms an integral part of law of dismissals. The South African labour market has in the past years been characterized by restructuring and consequently retrenchment of employees. In most cases, employer’s decisions to retrench were challenged by the employees and unions in courts. Section 189 of the LRA stipulates procedures to be followed by an employer when contemplating dismissal of one or more employees for reasons based on operational requirements. The employer does not only have to follow the procedures set out in section 189 to render dismissals for operational reasons fair, but there must also be a valid reason to dismiss. The courts have always not been willing to second-guess the employer’s decision to retrench provided that the decision is made in good faith.

<p>Background: As the economy turns up and down, and companies sometimes face loosing employees, it is important for them to make sure they do not loose competence at the same time. Therefore a need to handle competence efficiently exist. </p><p>Purpose. The purpose of this thesis is to investigate what measures companies take to minimise the risk of loosing competence from the company, at times of layoffs and in general. </p><p>Methodology: We mainly used interviews to gather information. Three competence intensive companies participated in the study. By competence intensive we mean companies that continuously need competence to develop and produce their products. All companies were in the technology sector. </p><p>Conclusion: The companies were surprisingly passive when it came to managing competences, especially tacit competences. The work of continuously handling competences was left to the unit managers, and was not dealt with company-wide. The measures used are similar in all companies, as well as the fact that they have not changed those measures after the layoffs. This could be a result of that they worked well, or that they have no better alternatives. All companies used routines as a mean of capturing competence, but had realised that routines could never replace the individual competences. Instead they tried to create an environment at the companies where competence sharing was a part of the daily work, e.g. by evaluating employees through variables connected to competence sharing.</p>

Background: As the economy turns up and down, and companies sometimes face loosing employees, it is important for them to make sure they do not loose competence at the same time. Therefore a need to handle competence efficiently exist. Purpose. The purpose of this thesis is to investigate what measures companies take to minimise the risk of loosing competence from the company, at times of layoffs and in general. Methodology: We mainly used interviews to gather information. Three competence intensive companies participated in the study. By competence intensive we mean companies that continuously need competence to develop and produce their products. All companies were in the technology sector. Conclusion: The companies were surprisingly passive when it came to managing competences, especially tacit competences. The work of continuously handling competences was left to the unit managers, and was not dealt with company-wide. The measures used are similar in all companies, as well as the fact that they have not changed those measures after the layoffs. This could be a result of that they worked well, or that they have no better alternatives. All companies used routines as a mean of capturing competence, but had realised that routines could never replace the individual competences. Instead they tried to create an environment at the companies where competence sharing was a part of the daily work, e.g. by evaluating employees through variables connected to competence sharing.

Magister Legum - LLM

Legislation, arbitral and judicial decisions, and public opinion provide evidence of increasing concern for protecting employees from unfair dismissal in both union and nonunion firms. Management's right to discharge is being questioned today more than at any other time in the history of labor-management relations. Thus, organizations must stay abreast of the developments that affect their right to discharge employees. This study investigates arbitration awards and judicial decisions in discharge cases to provide answers to these questions. Are companies aware of the types of misconduct for which discharge is considered appropriate? Are companies aware of what constitutes the burden of proof requirements in discharge cases? Does management know and follow the proper procedures in handling discharge cases? The purposes of the study are 1. To determine the extent to which discharges were overturned or modified because the company did not meet the burden of proving a reasonable cause for discharge; 2. To determine the extent to which discharges were overturned or modified because the company did not follow proper dismissal procedures; 3. To develop a model set of guidelines to assist companies in the proper handling of discharge cases. These guidelines present criteria for meeting the just cause and procedural requirements in discharge cases.

This dissertation scrutinises the impact of pregnancy challenges on the mining industry, taking the right of equality and unfair discrimination into consideration. Pre-employment pregnancy testing is an acceptable practice within the current legal framework whereby the MHSA and section 26 of the BCEA place an obligation on the employer to protect employees before and after the birth of a child. This section provides that no work may be performed by an employee that is hazardous to her health or the health of her unborn child. The dissertation synthesises and reviews the practical implications of pregnancy and related challenges of underground employees and all the problems surrounding this matter are dissected. The liability of the employer and the failure of the employee to report her pregnancy status to the employer as soon as she becomes aware of it, can be justifiably treated as misconduct. The justification of the dismissal of an underground employee based on pregnancy is confirmed in light of the legislative obligations placed on the employer. Current legislative measures, which justify an automatically unfair dismissal due to pregnancy, cannot be implemented without considering the Constitution and the employers’ right to economical sustainability. A literature study will be done using current and relevant sources such as books, legislation, court decisions, conference papers and journal articles. Methodological issues will also render it necessary to weigh up different rights through literature sources. / Thesis (LLM (Labour Law))--North-West University, Potchefstroom Campus, 2013

This dissertation scrutinises the impact of pregnancy challenges on the mining industry, taking the right of equality and unfair discrimination into consideration. Pre-employment pregnancy testing is an acceptable practice within the current legal framework whereby the MHSA and section 26 of the BCEA place an obligation on the employer to protect employees before and after the birth of a child. This section provides that no work may be performed by an employee that is hazardous to her health or the health of her unborn child. The dissertation synthesises and reviews the practical implications of pregnancy and related challenges of underground employees and all the problems surrounding this matter are dissected. The liability of the employer and the failure of the employee to report her pregnancy status to the employer as soon as she becomes aware of it, can be justifiably treated as misconduct. The justification of the dismissal of an underground employee based on pregnancy is confirmed in light of the legislative obligations placed on the employer. Current legislative measures, which justify an automatically unfair dismissal due to pregnancy, cannot be implemented without considering the Constitution and the employers’ right to economical sustainability. A literature study will be done using current and relevant sources such as books, legislation, court decisions, conference papers and journal articles. Methodological issues will also render it necessary to weigh up different rights through literature sources. / Thesis (LLM (Labour Law))--North-West University, Potchefstroom Campus, 2013