This treatise will therefore critically discuss fairness requirements in dismissal law within the context of the education sector from: i) the perspective of a dismissed employee; and ii) the perspective of an employer who wishes to dismiss employees fairly; and iii) the perspective of a deemed dismissal. It will be proper to flow this discussion from the premises of what should be considered procedural and substantive fairness in dismissals.

Made available in DSpace on 2016-04-26T20:29:59Z (GMT). No. of bitstreams: 1 Fabiano de Almeida.pdf: 4966865 bytes, checksum: 3e2a522ac85943503c27fa1f196bf8a6 (MD5) Previous issue date: 2009-11-23 / The following study was prepared aiming the analysis of the effect brought by the concession of pension incident upon the individual labor contract, specially concerning the voluntary pension, under the continuity of the labor contract and the constitutional rights. The matter, here debated, considered the study of the Constitutional Law, the Labor Law and the Security Law, based on the need of maximum biding authority of the constitutional laws. In the first chapter, we examined the conception of the Law Science and its interpretation. In the second chapter, we presented a brief study about the Security Law s autonomy regarding the Labor Law, as well as how the social security, and specially the pension, is treated by that legislation. The third chapter seeks to establish the foundation of the continuity of the labor contract and its treatment in Brazilian law. The fourth chapter brings the Portuguese and Spanish legislations, in order to examine how the matter is addressed in others countries. It also presents some statistics data from Portugal and Brazil to demonstrate that the payment of the benefits in Brazil is unable to fulfill the primary needs of the beneficiaries and forces them to return to work after the retirement. The following chapter portraits the historical evolution of the legislation and jurisprudence, outputted over the years, and the discussions occurred. We equally study a bill about the matter introduced to the Brazilian Congress. In the sixth chapter, the reader will be taking knowledge of the Brazilian Constitutional Court s (Supremo Tribunal Federal) interpretation about the effect of the avail of the pension over the labor contract and how its decisions were received by the others common courts. In the final chapter, we will discuss the need of maximum infliction of the right to work and will examine specially the extinction effect of the avail of voluntary pension over the labor contract in order to attribute effective biding authority to fundamental rights, in which are included the right to work. We concluded that the Brazilian law allows us to refute the thesis about the maintenance of the labor contract after the retirement, despise the decision about the matter delivered by the Constitutional Court / O presente estudo foi elaborado com o propósito de proceder à análise do efeito da concessão do benefício de aposentadoria incidente sobre o contrato de individual de trabalho, notadamente no que tange à aposentadoria voluntária, à luz do princípio da continuidade das relações de trabalho e os mandamentos constitucionais fundamentais. A matéria discutida no presente trabalho levou em consideração o estudo do Direito Constitucional, do Direito do Trabalho e do Direito Previdenciário, a partir da premissa da necessidade de máxima eficácia das normas constitucionais. No primeiro capítulo, examinou-se rapidamente a concepção do Direito e sua interpretação. No segundo capítulo, buscou-se estudar brevemente a autonomia do Direito Previdenciário em relação ao Direito do Trabalho e como a seguridade social e especificamente a aposentadoria é naquele retratada. O terceiro capítulo da dissertação cuida de estabelecer as bases do princípio da continuidade e sua consagração em nosso ordenamento. Já o quarto capítulo traz a legislação de Portugal e Espanha acerca do tema, demonstrando como o assunto é tratado naqueles ordenamentos. Igualmente demonstra alguns dados estatísticos de Portugal e do nosso país, a fim de demonstrar que a insuficiência dos proventos leva o trabalhador brasileiro a aposentar-se e retornar ao labor. O capitulo quinto trata da evolução histórica do tema, necessária à correta compreensão da doutrina e jurisprudência produzidas ao longo dos anos, bem como dos debates nelas tratados. Outrossim, analisa-se projeto de lei que tramita atualmente no Congresso Nacional. No capítulo sexto, tomará o leitor conhecimento da visão do Supremo Tribunal Federal sobre o assunto e como as decisões por ele proferidas em sede de ações diretas de inconstitucionalidade foram recepcionadas pela jurisprudência. No derradeiro capítulo, sabedor o leitor dos conceitos estabelecidos na legislação previdenciária, conhecedor também do princípio da continuidade das relações de emprego e ciente da evolução histórica e jurisprudência sobre o tema, debater-se-á a necessidade de estabelecimento de eficácia máxima aos direitos fundamentais, inclusive ao direito fundamental ao trabalho e acabamos por examinar especificamente a necessidade de atribuição de efeitos extintivos à aposentadoria voluntária como medida de máxima eficácia aos direitos fundamentais. Concluímos que a legislação pátria permite rechaçar a tese da manutenção do contrato de trabalho após a voluntária aposentadoria, mesmo após o julgamento das ações de inconstitucionalidade pelo Supremo Tribunal Federal

Submitted by Filipe dos Santos (fsantos@pucsp.br) on 2017-12-08T11:27:33Z No. of bitstreams: 1 Claudimir Supioni Junior.pdf: 1059077 bytes, checksum: e50b644cc37250bc376be9d3413ae192 (MD5) / Made available in DSpace on 2017-12-08T11:27:33Z (GMT). No. of bitstreams: 1 Claudimir Supioni Junior.pdf: 1059077 bytes, checksum: e50b644cc37250bc376be9d3413ae192 (MD5) Previous issue date: 2017-11-28 / This research reports findings resulted in a theoretical model, aiming to describe and systemizing the efficacy of collective labor standards of Brazilian territorial scope. The research problem is represented by the following question: Would collective bargaining instruments be capable of producing effects on a geographic area broader than the territorial base of the document’s signatory unions, to the extent of also considering the labour occurred in another locality? Owing to a gap in literature on the subject, similar concepts were adopted from other branches of the legal science. The theoretical rationale was derived from the richness of the Private International Law’s literacy, for presenting the necessary postulations for object’s confrontation. The research method comprised of commencing from hypothesis or conjecture, inferring its consequences, applying tests of falsifiability and, at the end, support or refute hypothesis or initial conjecture. Such method allowed to validate several premises that converged into three central postulates, that altogether built the foundation of the presented thesis: (i) the individual contract of employment is not necessarily ruled by the conventional norms celebrated by the union, whose territorial base lies in the place the worker performs his professional activities; (ii) the employment relationship is ruled by collective norms whereby a closer bond exists, in accordance with the principle of proximity; (iii) it is possible that different aspects of labour contract may connect with different collective norms, as they have a closer interconnection amongst them, as per the deduction’s method guides. Despite indeterminacy caused by the proximity’s principle, this research advanced forward and investigated assumptions of closer bonds, clearly constructed hypothetically and aprioristically, formulating then an application model synthesized in the sequence of statements presented in its concluding chapter / O documento relata pesquisa que resultou em um modelo teórico com pretensões de descrever e sistematizar a eficácia das normas coletivas de trabalho no plano espacial interno brasileiro. O problema central do estudo pode ser sintetizado na seguinte questão: os instrumentos de contratação coletiva seriam capazes de produzir efeitos em uma dimensão geográfica mais abrangente do que a base territorial dos sindicatos subscritores do documento, a ponto de também alcançarem o fato trabalho ocorrido em outra localidade? Em razão da ausência de material bibliográfico específico sobre o tema, prospectou-se padrões conceituais em outros ramos da ciência jurídica, tendo-se encontrado na rica produção doutrinária em Direito Internacional Privado o substrato teórico necessário para o enfrentamento do seu objeto. O método de investigação empregado consistiu em se partir de uma hipótese ou conjectura, deduzir suas consequências, aplicar testes de falseabilidade e, ao final, corroborar ou refutar a hipótese ou conjectura inicial. Tal método permitiu validar diversas premissas que convergiram para três postulados centrais que, em conjunto, compõem a tese defendida pelo autor: (i) o contrato individual de trabalho não é regido, necessariamente, pelas normas convencionais celebradas pelo sindicato cuja base territorial compreende o local em que o trabalhador executa as suas atividades profissionais; (ii) a relação de emprego é regida pelas normas coletivas com as quais mantiver um relacionamento mais estreito, em conformidade com o princípio da proximidade; (iii) é possível que diferentes aspectos do contrato de trabalho se conectem com diferentes normas coletivas, conforme apresentem com elas uma conexão mais estreita, tal como orienta o método da dépeçage. Diante da indeterminação gerada pelo princípio da proximidade, a pesquisa avançou e investigou presunções de conexão mais estreita, evidentemente construídas de forma hipotética e apriorística, desenvolvendo um modelo de aplicação sintetizado na sequência de enunciados apresentada em seu capítulo conclusivo

Univ., Diss.--Gießen, 2003. / Literaturverz. S. 283 - 307.

Thesis (doctoral)--Universiẗat Göttingen, 2006. / Includes bibliographical references (p. 269-283).

The establishing of good cause subsequent to a deemed dismissal, as practiced currently only in the public sector, has been a controversial issue for the courts, labour law commentators and academics alike. It has been so because of a number of legislative deficiencies which caused the inconsistent application of the deeming provisions across the public service. Amongst others, the legislative deficiencies regarding establishing good cause are; the time-limit for establishing good cause, what happens when the employee returns, whether establishing of good cause should be entertained through written response or a hearing, the Termination of Employment Convention, 1982(No. 158) is silent on the deeming provisions, review of the employer’s discretion not to reinstate the absconding employee and the legal position regarding the traditional healer’s certificate. There will be an intensive investigation on the validity of the traditional healer’s certificate. Majority of South Africans rely on the THP for a number of illnesses. In some cases, they use the traditional healer’s certificate to establish good cause subsequent to a deemed dismissal. The traditional healer’s certificate is not yet valid given the pending legislative processes. This issue will be broadly explored in order to uncover the causes for the delay in finalising this crucial issue. Most of the absconding employees have a problem of alcoholism. There is a causal relationship between deemed dismissal and alcoholism. It is again the intention of this study to fully investigate this phenomenon and provide solutions for the employers faced with this challenge. Practical solutions will be proposed for each identified legislative deficiency and any related challenge to help employers to manage the deeming provisions in a very effective and efficient manner.

Fundamental to any contract of employment is the obligation that rests on an employee not to be absent from work without justification. Under the common law, if an employee did that, the employer would be entitled to dismiss him or her on notice. The International Labour Organization Convention (ILO) 158 of 1982 provides that the employer must have a reason for a dismissal and sets out broad categories or reasons for dismissals . Section 23 of the Constitution of the Republic of South Africa, 1996(Act 108 of 1998) provides that “Everyone has the right to fair labour practices”. Section 33 of the Constitution provides that “Everyone has the right to administrative action that is lawful, reasonable and procedurally fair. The Promotion of Administrative Justice Act 3 of 2000 (PAJA) is designed to give effect to just administrative action. Section 1 and 3 of the Labour Relations Act,1995(Act 66 of 1995)(LRA) require compliance with Article 7 and 8 of the ILO Convention 158 of 1982, when the employment of a worker has been terminated by his or her employer. The LRA protects employees against unfair dismissal. In the Department of Education, Section 14(1)(a) of the Employment of Educators Act, 1998 provides for the discharge of an educator in the event that he or she absents himself or herself from work for a period exceeding 14 consecutive days without the permission of the employer. A similar provision, Section 17(5)(a)(i) of the Public Service Act, 1994 provides for the discharge of an officer other than an educator who absents himself or herself from his or her official duties without the permission of the Head of Department for a period exceeding one calendar month. Section 14(2) of the Employment of Educators Act, 1998 and 17(5)(b) of the Public Service Act,1994 afford an employee who has been deemed discharged to show good cause why he or she should be reinstated. Against this background, the critical legal question is the constitutionality of the deeming provisions. The study will examine the validity of these provisions in relation to the ILO Conventions, Constitution, LRA and PAJA.

South Africa has over the years and particularly since the enactment of our new Constitution, attracted an increasing number of foreigners. One of the main problems associated with the large number of illegal immigrants in this country is that they are placing strain on South Africa‟s already scare resources such as housing and healthcare. A further problem is that these illegal immigrants are competing with South Africans for jobs which are already scarce, and thus aggravating the unemployment situation. Nevertheless, these illegal immigrants are being employed and by virtue of their circumstances are easily exploited and often the victims of cheap labour, corruption, eviction and assault. Given that these workers are illegal immigrants not in possession of the required work permits, their employment is prohibited by the Immigration Act 13 of 2002. They are thus illegal workers. Another category of illegal workers are those, predominantly women, who are employed in an industry which offers easy income with no contractual obligations – the prostitution industry. Despite the prohibition of prostitution by the Sexual Offences Act 23 of 1957, the prostitution industry throughout South Africa continues to exist. These workers are also particularly vulnerable and easily exploited and abused by their employers. Illegal immigrants and sex workers in South Africa have until recently been denied access to the protection of our labour legislation, by virtue of the illegality of their employment contracts. However two recent controversial decisions, that of the Labour Court in the Discovery Health case, and that of the Labour Appeal Court in the Kylie case, have changed this position.

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).

The problem. --The problem in this study was to describe the issues arising in employment decisions appealed to the Texas Commissioner of Education. Decisions made in courts are binding on school officials, and they are published in law reporters found in most libraries. The Commissioner's decisions are also binding on school officials, but they are not published or widely reported. Thus, this important body of information may not reach those who are responsible for its application. Methods. --The decisions of the Commissioner were examined to determine the issues and the underlying rationale used by the Commissioner in the process of deciding the appeals. A series of data reductions allowed a determination of patterns found in the outcomes of the decisions which favored the employee and those which favored the school districts. The analysis produced a set of data from which implications for decision making could be drawn.