A fundamental adjustment to our perspectives on the systemic inequalities that exist in South Africa is necessary. Our seemingly neutral laws need to be reassessed to fully understand their practical impact. Section 194 of the Labour Relations Act provides an overtly neutral law in the form of a limitation on the compensation awardable in employment matters. The limitation is the equivalent of either 12 or 24 month's remuneration. The text expresses that compensation must be 'just and equitable', but subject to the limitation. The judges and commissioners that have heard such employment matters have taken this concept of 'just and equitable' and interpreted it to either mean recovering loss suffered, or fairness on a sliding scale of 1 to 12 or 1 to 24 months' remuneration, depending on the case. This dissertation will argue that any text or interpretation of section 194 that utilises remuneration as its sole measurement, is constitutionally invalid. This is because systemic racial and gender inequality in South Africa prevent a free market of opportunity concerning the salaries available to a statistically significant number of women and black persons. The provision in question may not directly intend to differentiate between races and genders, but the indirect effect of the text and interpretation of section 194 is to cause disproportionate disadvantage to certain groups of persons. This dissertation will use case law to bring the unjust impact of section 194 to light; it will then suggest that any use of remuneration as a standard or measure will always create a prima facie case of unfair discrimination on the grounds of race and gender - at least in our country's current economic circumstances. The essential point is that differentiation on the ground of remuneration is inherently indirectly discriminatory, and will, therefore, always require justification for its use. This dissertation will then go on to inquire into the constitutionality within the context of section 194 - ultimately, the conclusion is that the current interpretation which quantifies compensation solely in terms of remuneration, as well as the text of the limitation on compensation that limits in terms of remuneration, cannot withstand constitutional scrutiny. This is followed by recommendations on how to move forward within the bounds of the Constitution. Racial and Gender inequality are embedded within the fabric of South Africa. It is imperative that we reassess the unintended effects of our laws if we are to achieve one of the fundamental goals of the Constitution: equality.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:uct/oai:localhost:11427/20796 |
| Date | January 2016 |
| Creators | Wood, Lisa |
| Contributors | Collier, Debbie |
| Publisher | University of Cape Town, Faculty of Law, Department of Commercial Law |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Master Thesis, Masters, LLM |
| Format | application/pdf |
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