Dr. A.C. Huysamen

Thesis (LLM. (Labour Law)) -- University of Limpopo, 2013 / The study will analyse the fairness or unfairness of precautionary suspensions and the rights of employees in the Public Service who are placed on precautionary suspensions with reference to section 23(1) of the Constitution of the Republic of South Africa, 1996, which states that: (1) “ Everyone has the right to fair labour practices” Section 186(2)(b) of the Labour Relations Act 66 of 1995 defines what an unfair labour practice is with specific reference to a precautionary suspension. It reads thus: (2) “ Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving – (b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee” The study will also look at circumstances under which precautionary suspension is invoked on Senior Management Service employees in the public service in terms of chapter 7, clause .2.7(2) of the Senior Management Service Handbook, 2003. Decided cases will be referred to which shows that one of the reasons why many precautionary suspensions are set aside when challenged in court, is because some employees who are assigned to deal with labour issues in the government departments are not competent to deal with those issues. The issue of political appointments impacts directly on service delivery if people are appointed to positions because of political affiliation than competency.

Thesis (LLM. (Labour Law)) -- University of Limpopo, 2011 / The definition of an employee in most protective labour legislations excludes various categories of workers. The definition of what an employee is, is different in labour legislation. A new presumption of what an employee is, is just a guideline and not exhaustive. The tests developed by our courts do not assist in defining an employee in boarderline cases. It is not simple as it originally seemed. In the beginning it seemed certain but in the end the definition can no longer be valid. The definition of an employee is a journey of a thousand miles which begins with the test step-with no end. The words of Francis Bacan seem to hold water regarding most definition of an employee. Francis Bacan said I quote ‘if a man will begin with certainties, he shall end in doubts, but if he will be content to begin with doubts, he shall end in certainties.

Thesis (LLM ( Labour Law)) --University of Limpopo, 2013. / The study will analyse the fairness or unfairness of precautionary suspensions and the rights of employees in the Public Service who are placed on precautionary suspensions with reference to section 23(1) of the Constitution of the Republic of South Africa, 1996, which states that: (1) “ Everyone has the right to fair labour practices” Section 186(2)(b) of the Labour Relations Act 66 of 1995 defines what an unfair labour practice is with specific reference to a precautionary suspension. It reads thus: (2) “ Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving – (b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee” The study will also look at circumstances under which precautionary suspension is invoked on Senior Management Service employees in the public service in terms of chapter 7, clause .2.7(2) of the Senior Management Service Handbook, 2003. Decided cases will be referred to which shows that one of the reasons why many precautionary suspensions are set aside when challenged in court, is because some employees who are assigned to deal with labour issues in the government departments are not competent to deal with those issues. The issue of political appointments impacts directly on service delivery if people are appointed to positions because of political affiliation than competency.

The value underlying privacy lies in the fact that it mirrors the very idea of human dignity and the protection of the personal realm. However operational requirements of employers and advancements in science and technology continuously challenge the notion of privacy in the workplace. Employees all over the world are victims of a number of privacy invasive measures including, but not limited to drug testing, background checks, HIV/AIDS testing and polygraph testing. Present day advancements in technology and science make the recognition and protection of the right to privacy even more urgent. The concept of privacy in the workplace has grown in importance as technology has enabled sophisticated forms of testing and monitoring of employees. As a result of these advancements a deep tension has arisen between two conflicting sets of principles. Consequently the rationale for this study is to strike a balance between the employee’s right to privacy and the employers right to conduct his or her business as he or she deems fit. This will be done through an analysis of a number of practices adopted by the employer in the workplace of which contribute to the infringement. Further the admissibility of such evidence procured by the employer through these practices will be interrogated. This is a significant issue as scientific and technological advancements have a very tangible impact on the wellbeing of employees. / Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2012.

The focal point of this treatise is the procedural requirements relating to suspensions. For a suspension to be fair it must be for a fair reason and in accordance with a fair procedure which is commonly referred to as substantive and procedural fairness. The Labour Relations Act 66 of 1995 does not tell or provide guidance in terms of what these procedural requirements for a suspension are. The Act is completely silent on this matter. The Act only requires that any disciplinary measure instituted against an employee must be done in terms of a fair procedure. Suspensions have been described by our courts as the employment equivalent of arrest. It is normally used as a preventative measure pending internal disciplinary investigations or as a disciplinary sanction for an employee who repeatedly engages in misconduct. This treatise highlights the impact of arbitrary suspension of employees and suspensions of employees for inordinate periods of time. Suspensions are not intended for purposes of punishment. The Labour Court has on numerous decisions cautioned employers on issues of unfair suspension because of its detrimental impact on the employee’s reputation, advancement, job security and other grounds. Situations have often arisen where an employer suspends an employee without following any procedure. This practice was particularly prevalent under the common law and before the judgment in Mogothle v the Premier of the Northwest Province and Another when employers were suspending employees as they saw fit. Following the principles in this case, bearing in mind that each case is judged on its own merits and the detrimental effect of a suspension. A suspension should only be warranted in circumstances where: The employer has a justifiable reason to believe prima facie at least that the employee has engaged in serious misconduct; There is some objectively justifiable reason to deny the employee access to the workplace based on the integrity of any pending investigation into the alleged misconduct or some other relevant factor that would place the investigation or the interest of affected parties in jeopardy. The employee is given the opportunity to state a case or to be heard before any final decision to suspend is made. Although the right to be heard is not a formally defined process, case law has developed this concept to such an extent that it will be regarded as unfair labour practice if not adhered to. A suspension of an employee can therefore never be justified without adhering to the audi alteram partem principle. This does not mean that an employer cannot suspend an employee. Our courts accept that suspension is necessary especially for purposes of good administration and is justified, following the correct procedure and where the employer continues to pay the employee. Despite the fact that the courts are playing a more active role with regards to the issue of suspensions, suspensions are often open to abuse. In this regard the treatise focused on the notion of special leave versus suspensions. We note how in the last few years, employers especially those in the public service sector, misconstrued and misused their power for a purpose not authorised in law, and continue to do so despite applications to the courts alerting it to the illegality of this practice. Employers are resorting to special leave with the aim of side stepping the procedural requirements laid down by our courts in respect of section 182 (2) of the Labour Relations Act. In this regard the courts vehemently criticised this practice and ensured that employers who are acting maliciously without adhering to their own policies and procedures are held accountable. The court held that in the event where special leave is imposed on an employee for the purposes of discipline, that special leave is regarded as a suspension. Lastly, it is quite evident that the courts are playing a much more active role pertaining to the issue of suspensions. A number of court decisions discussed in this treatise show how the courts come down hard on employers who hastily resort to suspending an employee where there is no valid reason to do so or where the procedure was manifestly unfair.

This research was undertaken to investigate the challenges faced by employees at the Home Affairs Department, the transport Department and the Department of Education at King Williams Town in the Eastern Cape Province. A quantitative approach was used in this research. The sample consisted of 100 respondents of whom 98 returned completed questionnaires. The answers of the respondents were the data of this study and these were analyzed and interpreted in respect of the hypotheses of the research. The research involved the collection of detailed career, personal and structural perceptions of 98 employees. The data was used to establish the disparity among employees, from lower management to top management. It was found that even though there was a problem of discrimination in the olden days there has been a change in the sense that employment equity, affirmative action and diversity management have been introduced since 1994.

The South African workforce has been transforming over centuries. Post -1994 South Africa brought about liberal changes in labour laws and policies, which saw women getting a four months maternity leave but there was a shortfall when it came to fathers in the workplace. The laws are mute about the father’s time off during birth of the child; the only provision made is the three days family responsibility leave. The purpose of this research was to explore the perceptions and experiences of fathers with regard to the absence of paternity leave in the legislation and their experiences in early child care with new-borns. The study used a qualitative strategy and a case study design to better understand the perceptions and experiences of employed fathers. A purposive and convenience sampling procedure were used, with a sample of 15 fathers with reproductive age ranging from 25 to 55. The fathers that were interviewed came from three different companies, where a semi structured interview was employed to collect data. Data was analysed using thematic analysis that allowed the researcher to identify the recurring themes. The findings of the study demonstrated a need for paternity leave to allow fathers to be involved with their new-borns. Various factors that came up during the analysis include bonding, the helper and supportive partner, and emotionally absent. These factors contributed to an emphasised need for paternity leave as participants narrated their experiences and challenges. With the implementation of paternity leave participants felt that ten days of leave provision in South Africa would be the first steps to moving towards gender equality in the workplace and strict measures need to be put in place to ensure that fathers do not misuse the paternity leave. The study recommends further research to be conducted on the mother’s perspective on paternity leave. It is also anticipated that the result may support the amendment of Basic Conditions of Employment Act, or develop progressive policy which can equally cater for both men and women in equal terms. Keywords: Basic Conditions of Employment Act, Paternity leave, Fatherhood, Family. / GR2018

The Labour Relations Act 66 of 1995 (LRA) was formulated by consensus from Government, Labour and Business. The advent of the new democratic dispensation brought with it the need to bring reforms to the country’s repressive labour laws, which were the hallmarks of the former apartheid regime. The new democratic dispensation’s priority was to ensure that the laws governing the employment relationship were again in line, with the International Labour Organization’s requirements (ILO). The consolidation of the country’s labour laws became critical for the new democratic dispensation because it became imperative that labour laws, once and for all became inclusive of all South Africa’s working force. During this post democratic period South Africa has been able to bring this consolidation to our regulatory framework through democratizing labour relations. This has meant that all organized workers for the first time after 1995, could have access to collective bargaining. South Africa has also enjoyed a period of relative labour stability during this period but only until recently, has the institution of collective bargaining been under the severest attack. This contestation in this labour regime is about the constitutional right to engage in collective bargaining. It has become of paramount importance to understand the meaning of this right to engage in collective bargaining, how far does this right extend to organized employees and most importantly what are now the impediments to the realization of this right? This is a broad and a very important topic in our labour law jurisprudence. The rationale for this treatise is to articulate the right to engage in collective bargaining, amid recent developments. At the same time to probe whether or not a justiciable duty to bargain in good faith (legally enforceable duty), should be reintroduced in our collective bargaining framework. This would be an option in reestablishing this institution in the face of insurmountable challenges, particularly as far as managing the conduct of bargaining parties during the collective bargaining process. The LRA does not envision such a legally enforceable duty to bargain in our labour relations framework, preferring rather apolicy based on voluntarism. The LRA has instead created a legally recognized framework were bargaining parties, determine their own collective process, without undue interference from the state and the courts. This has been the position since the inception of the new democratic order.Times have changed constitutional challenges have been mounting against provisions of the LRA, which have been deemed by some as unconstitutional. This is reference to the inaccessibility of the collective bargaining process; relating directly to the right to engage in collective bargaining.The disjuncture between the Constitution and the enabling legislation the LRA will also be scrutinized, as the result has been confusion regarding the meaning and the application of this constitutional right to engage in collective bargaining.

This paper is divided into two distinct sections. The first being an analysis of the legal protection of temporary employees as things currently stand. It deals with the various labour laws that currently regulate temporary employment as well as the temporary employment contract and the common-law. The second section summarises and analyses the provisions of the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill as they apply to fixed-term employees. Temporary employees are protected by the general protection extended to all employees in terms of section 23(1) of the Constitution of the Republic of South Africa, 1996, guaranteeing all employees the “right to fair labour practice”. The Labour Relations Act has as one of its main objectives to give effect to and regulate the fundamental rights contained in the Constitution. Thus the Labour Relations Act must not only give effect to constitutional rights but it must also ensure that it in no way unreasonably or unjustly denies or limits constitutional rights. Temporary employees have a number of labour laws protecting their interests. Where the provisions of the Basic Conditions of Employment Act, a Bargaining Council Agreement or a Sectoral Determination do not apply the employee will rely on the terms of the fixed-term employment contract and thereafter the common law for protection. The only protection offered to temporary employees contained in the Labour Relations Act is in section 186(1)(b), where a dismissal is defined to include the non-renewal of temporary contracts of employment where there is a reasonable expectation of renewal on the same or similar terms. This provision has proved to be highly controversial in that it does not expressly cater for temporary employees who harbour reasonable expectations of indefinite employment. An analysis is made of the most important cases relating to section 186(1)(b). The second section unpacks and critically analyses the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill which have been long in the offing and when they are finally enacted, will bring with them sweeping changes for atypical employment . The amendments will drastically change the way employers make use of fixed-term employees as well as the way in which Temporary Employment Services may conduct business if they are in fact able to keep working at all. There is very little literature of substance written about the Labour Relations Amendment Bill as it applies to atypical employment. The fact that the proposed amendments have changed so many times over such a long period of time might have deterred many writers from investing time and effort in attempts to analyse and summarise the amendments. Articles posted on the internet are in the main short and have very little content. No books were found with any discussion that pertains to the amendments. The amendments divide employees involved in atypical employment into two different categories. These categories consist of employees earning above the threshold in terms of section 6(3) of the Basic Conditions of Employment Act and those earning below this threshold. All fixed-term employees may rely on the provisions of section 186 of the Labour Relations Act. Employees earning below the threshold are considered to be the most vulnerable and have been afforded additional protections in terms of sections 198(A), (B) and (C). Issues surrounding Temporary Employment Services and fixed-term employees have been very divisive and have been the topics of heated debate at all levels of Industrial Relations for a long time. Discussions regarding the use of the services of Temporary Employment Services can be highly emotive, with Temporary Employment Services being accused of committing wideThis paper is divided into two distinct sections. The first being an analysis of the legal protection of temporary employees as things currently stand. It deals with the various labour laws that currently regulate temporary employment as well as the temporary employment contract and the common-law. The second section summarises and analyses the provisions of the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill as they apply to fixed-term employees. Temporary employees are protected by the general protection extended to all employees in terms of section 23(1) of the Constitution of the Republic of South Africa, 1996, guaranteeing all employees the “right to fair labour practice”. The Labour Relations Act has as one of its main objectives to give effect to and regulate the fundamental rights contained in the Constitution. Thus the Labour Relations Act must not only give effect to constitutional rights but it must also ensure that it in no way unreasonably or unjustly denies or limits constitutional rights. Temporary employees have a number of labour laws protecting their interests. Where the provisions of the Basic Conditions of Employment Act, a Bargaining Council Agreement or a Sectoral Determination do not apply the employee will rely on the terms of the fixed-term employment contract and thereafter the common law for protection. The only protection offered to temporary employees contained in the Labour Relations Act is in section 186(1)(b), where a dismissal is defined to include the non-renewal of temporary contracts of employment where there is a reasonable expectation of renewal on the same or similar terms. This provision has proved to be highly controversial in that it does not expressly cater for temporary employees who harbour reasonable expectations of indefinite employment. An analysis is made of the most important cases relating to section 186(1)(b). The second section unpacks and critically analyses the Labour Relations Amendment Bill and the Basic Conditions of Employment Bill which have been long in the offing and when they are finally enacted, will bring with them sweeping changes for atypical employment . The amendments will drastically change the way employers make use of fixed-term employees as well as the way in which Temporary Employment Services may conduct business if they are in fact able to keep working at all. There is very little literature of substance written about the Labour Relations Amendment Bill as it applies to atypical employment. The fact that the proposed amendments have changed so many times over such a long period of time might have deterred many writers from investing time and effort in attempts to analyse and summarise the amendments. Articles posted on the internet are in the main short and have very little content. No books were found with any discussion that pertains to the amendments. The amendments divide employees involved in atypical employment into two different categories. These categories consist of employees earning above the threshold in terms of section 6(3) of the Basic Conditions of Employment Act and those earning below this threshold. All fixed-term employees may rely on the provisions of section 186 of the Labour Relations Act. Employees earning below the threshold are considered to be the most vulnerable and have been afforded additional protections in terms of sections 198(A), (B) and (C).