LL.M. (Labour Law) / In this minor dissertation the author argues that the Constitution will fail to uphold its own fundamental values if the rights and obligations which it enforces remains stale and outdated. A supreme body of law needs to be one which is breathing and alive, and which may adapt to fundamental changes in society. In turn, it is will be suggested that, if the Constitution remains ineffectual, labour law (which seeks to uphold its values and vision) will in turn become ineffectual. The minor dissertation will therefore consider the following pertinent question: Will the inability of the judiciary to interpret labour law in a manner that furthers the fundamental values in the Constitution result in such legislation becoming ineffective? It will be submitted that in order to promote economic and labour development one must be mindful of the social fluctuations present in light of a constitutionally supreme state. It is also stated that, in order to avoid a deadlock of complicated and outdated labour legislation which becomes inflexible, the Legislature must allow the Judiciary to develop such law to the extent that is necessary for its continued existence insofar as it complies with the Constitution. Without a strong and adhesive method in developing labour practice, social, economic and technological advancements will fail. Labour legislation must therefore be adaptive and flexible. The judiciary must therefore be adaptive and flexible in their own application of such law. In turn the Constitution is theoretically adaptive too, and its premise is achieved through the promotion of effective labour legislation, specifically.

M.Phil. (Labour Law and Employment Relations) / Please refer to full text to view abstract

Thesis (LLM. (Labour Law)) -- University of Limpopo, 2013 / Reinstatement is one of the remedies for unfair dismissals. Dismissed employees have a recourse to approach the Commission for Conciliation, Mediation and Arbitration1 or labour courts to seek reinstatement. The arbitrator or the courts have a discretion to order reinstatement based on the facts of the case, sometimes retrospectively. Retrospectivity is a discretionary matter in the hands of the courts and therefore the courts of law have been inundated with cases where the employers wanted to limit the retrospectivity of the application of reinstatement as a remedy for unfair dismissals. On the other hand, the dismissed employees would want the court to extend the application. In other circumstances the court would award compensation instead of retrospective reinstatement like where reinstating the employee is just practically impossible or the employee himself does not want to be reinstated. The Labour Relations Act2 has limited the power or discretion of the employers to dismiss employees at will. Section 185 of the LRA provides that there should be fair and valid reason for dismissals. The employer would have to prove the reason for dismissal for it to be valid. On the other hand, the case law also has established that where there is unfair dismissal, the arbitrator or the court must give the primary remedy in favour of the employees which is to reinstate them in their work. Such reinstatement would have the effect as if the employee was never dismissed in the first place.

Thesis (LLM. (Labour Law)) -- University of Limpopo, 2012 / Since the advent of constitutional democracy, there has been a steady growth in the volume of employment and labour protection legislation.1 More than a decade following the enactment of the new labour code has witnessed an avalanche of decisions of courts and arbitration awards of labour adjudicatory tribunals.2 Many of them involve unfair dismissals generally, unfair suspensions,3 residual unfair labour practices,4 disputes over promotion hinging on affirmative action, employment equity and unfair discrimination,5 the recurrent problem of jurisdiction,6 and review of arbitration proceedings.7 While wage and disputes8 on the one hand, and strikes9 on the other will always feature as perennial events in the labour-management calendar, truly important interface over several years has been dismissal of employees for automatically unfair reasons. 1 See eg, Labour Relations Act 66 of 1995; Basic Conditions of Employment Act 75 of 1997; Employment Equity Act 55 of 1998; Educators Employment Act 76 of 1988; Promotion of Administrative Justice 3 of 2000; Protected Disclosures Act 26 of 2000; Public Service Act (Proc 103 of 1994) Skills Development Act 97 of 1998; Skills Development Levies Act 9 of 1999; Unemployment Insurance Act 30 of 1966; The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. 2 See generally; Zondo, R ‘The new Labour Courts and labour law: The first seven months of the new LRA’ (1998) 19 ILJ 686; Wallis, M.J.D. ‘The new era – How decisive is the break from the past (1999) 20 ILJ 902. 3 Ngwenya v Premier of KwaZulu-Natal [2001] 8 BLLR 924 (LC); MEC for Tourism Affairs: Free State v Nondumo & others (2005) 26 ILJ 1337 (LC); SAPU & another v Minister of Safety & Security & another (2005) 26 ILJ 524 (LC). 4Department of Finance v CCMA & others (2003) 24 ILJ 1969 (LAC). 5 See eg: Minister of Finance & another v Van Heerden (2005) 26 ILJ 1593 (CC). For a detailed discussion: Zondo, R ‘The new Labour Courts and labour law: The first seven months of the new LRA’ (1998) 19 ILJ 686; Wallis, M.J.D. ‘The new era – How decisive is the break from the past (1999) 20 ILJ 902. 6 See eg: Old Mutual Life Assurance Co SA Ltd v Gumbi (2007) 28 ILJ 1499 (SCA). See also Pretorius SC, P ‘A dual system of dismissal law: Comment on Boxer Superstores Mthatha & another v Mbenya (2007) 28 ILJ 2209 (SCA) (2007) 28 ILJ 2172; 7 See generally Carephone (Pty) Ltd v Marcus NO & others1999 (3) SA 304 (LAC); Sidumo & another v Rustenburg Mines Ltd & others (2007) 28 ILJ 2405 (CC). 8 See generally, Du Toit, D ‘What is the future of collective bargaining (and Labour Law) in South Africa?’ (2007) 28 ILJ 1405; Landman, A ‘The duty to bargain – an old weapon pressed into service’ (2004) 25 ILJ 39. 9 Modise v Steve’s Spar Blackheath (2000) 21 ILJ 519 (LAC); PSA v Minister of Justice & Constitutional Development & others [2001] 11 BLLR 1250 (LC). See also Myburgh, JF ‘100 years of strike law’ (2004) 25 ILJ 962. 8 In pith and substance, the study concerned with dismissals that undermine the fundamental values that labour relations community in our country depends on to regulate its very existence. In the first part of the study, the constitutional and statutory framework will be briefly considered. An early appreciation of the constitutionalisation of the right to fair labour practices will provide a point of reference for evolving contemporary labour law corpus on automatically unfair dismissals. The second part takes a frontal examination of novel questions of constitutional vintage concerning automatically unfair dismissals. In turn, this raises questions of dismissals for exercising statutory employment rights. The other aspects are instances of employee victimisation resulting from lodging a grievance, protected disclosures, as well as trade union activities. Also arising are dismissals that can be ascribed to unfair discrimination. While the first part of this study concentrates on those situations where the employer has victimised and/or dismissed for exercising statutory rights, part three examines that question which has vexed the Labour Court, Labour Appeal, and to a lesser extent the Supreme Court of Appeal in recent times, the intersection between automatically unfair dismissals on the one hand, and corporate restructuring, on the other. In effect, the contentious issues naturally call for discussion: the uneasy relationship between corporate restructuring and collective bargaining, dismissal of protected strikers for operational reasons, dismissals in support of employer’s demands as well as dismissals of transferred employees consequent to transfer of undertaking. Before moving onto the heavyweight topic of automatically unfair dismissals, it is perhaps appropriate at this stage to reflect on the constitutional and statutory framework underpinning the Labour Relations Act 66 of 1995.

Thesis (LLM. (Labour Law)) -- University of Limpopo, 2012 / The overlap between misconduct and incapacity in case of intoxication and alcoholism remains a grey area. It is trite that an employee can be dismissed if under the influence of alcohol during working hours. On the other hand, the Code of Good Practice: Dismissal for conduct and incapacity in item (10) of schedule 8 of the Labour Relations Act 66 of 1995 singles out alcoholism as a form of incapacity that may require counselling and rehabilitation. There is a thin line between cases in which intoxication can be treated as misconduct, and those cases in which alcoholism should be treated as incapacity. The purpose of this study is to critically analyse dismissal on the grounds of alcoholism and intoxication at the workplace.

Thesis (MPA.) -- University of Limpopo, 2015 / The Department of Justice and Constitutional Development has been mandated by the government of the day to render accessible, fair, speedy and cost effective administration of justice in the interest of a safer and more secure South Africa. The department then set service standards to be able to achieve its goals. Like other departments in the country, the department of Justice has officials who perform duties to ensure that service is delivered to people. These officials have to conduct themselves in an acceptable manner prescribed by the employer. Since the code of conduct has been developed to promote and maintain high standard of professional ethics throughout the public service, the code of conduct is mandatory if effective service delivery is to reach all South Africans. Public servants must ensure that their conduct conforms to the basic values and principles governing public administration. The research focused on how discipline is managed in Malamulele cluster magistrate’s courts, in Limpopo Province, South Africa. Qualitative research methodology was used. Results indicated that some structures and individuals know their roles and responsibilities in management of discipline, however the understanding is only to a certain extent. Managers have been made to believe that it is proper to attend only less serious misconducts and refer the serious ones to the labour relations section at the regional level. Recommendations were advanced on activities that need to be performed in order for discipline to be well managed.

Thesis (MTech (Human Resource Management))--Cape Peninsula University of Technology, 2018. / The principle of the right to strike is internationally documented, as determined by the Committee on Freedom of Association. In South Africa, the right to strike is enshrined and protected in Section 23 of the country's Constitution under its Bill of Rights. Under specific circumstances, the Constitution allows for legislation to limit a right listed in Section 23. At the same time, the Constitution guarantees that everyone has the right to life and health care services. South African industrial action is regulated by the Labour Relations Act (LRA) No. 66 of 1995, as amended, which precludes workers who are employed in essential services from striking, because interruption of these services may endanger lives. However, the LRA also provides for the conclusion of a Minimum Service Agreement (MSA), where minimum services replace essential services. No MSA has been ratified since the LRA was promulgated in 1995. It is on this premise that the author investigated the mechanisms which have been put in place to create a balance between the right to strike and the need to provide essential services in the event of a strike. This study used a qualitative research design. Open-ended questionnaires were distributed to the target research sample. Purposive sampling was applied to a total of 30 participants who were selected from the Western Cape Department of Health's essential services. The qualitative data was analysed using theme identification to make sense of the findings. The research results reveal that employees who are providing essential services have the right to strike only if certain conditions are met. One of these conditions is the conclusion of a Minimum Service Agreement (MSA) to ensure a balance between the rights of health workers to strike and the rights of citizens to be provided with health care services. This agreement provides the duties and responsibilities of the employer and employees for the continuation of minimum services in the event of a public sector strike to ensure that service delivery is not interrupted. Specific recommendations are made by the researcher regarding the MSA, and measures are discussed to ensure that the minimum services within essential services remain operational in the event of a public sector strike.

This paper focused on how competing interests of employers and employees are accomodated in the South African Labour Relations arena. An analysis of the legislative framework was undertaken to establish how the legislation provides for changes in workplace practices as well as the protection that it affords employees against unwanted or unilateral changes. The main focus of the research was on how the South African Courts have interpreted the legislation and how it has applied the law in cases involving the changing of terms and conditions of employment, that has come before it.

Thesis (M.A.)--University of California, San Diego, 2009. / Title from first page of PDF file (viewed July 2, 2009). Available via ProQuest Digital Dissertations. Includes bibliographical references (p. 92-96).

Zugl.: Bonn, Universiẗat, Bonn, Diss., 2008.