The evolution of the right to fair procedure in dismissals for misconduct

by | Mar 16, 2025 | ACTA, ACTA 2024

The evolution of the right to fair procedure in dismissals for misconduct

Author André van Niekerk

ISSN: 1996-2088
Affiliations: BA LLB MA (Witwatersrand) LLM (Leicester); Judge of the Labour Appeal Court of South Africa
Source: Acta Juridica, 2024, p. 55-86
https://doi.org/10.47348/ACTA/2024/a3

Abstract

The obligation to follow a fair procedure before dismissing an employee for misconduct, certainly in the private sector, has its origins in the concept of the unfair labour practice, introduced in 1979 by way of an amendment to the Labour Relations Act 28 of 1956. This article traces the history of the development of a right to fair procedure before a decision to dismiss, and attempts to identify the normative basis of and justifications for that right. These included international standards, comparative law, the principles of administrative law applicable to public sector employees, and employer best practice. By 1994, a ‘criminal justice’ model had evolved, in which pre-dismissal procedures were equated with procedures applied in a criminal court. The Labour Relations Act 66 of 1995 (in particular, the Code of Good Practice: Dismissal) attempted to reduce the cost of elaborate workplace procedures. The legislative package introduced a system of compulsory arbitration for disputed dismissals, with a primary remedy of reinstatement for dismissals found to be substantively unfair, and compensatory awards for dismissals found to be substantively fair, but procedurally unfair. This approach reflects both respect for the autonomy and dignity of the employee, and a justification based on maximising the general welfare. The general welfare is maximised by accommodating the diversity and flexibility of procedural standards, promoting rational decision-making in disciplinary matters, and eliminating the cost of duplicated processes. The Code thus ultimately seeks to combine the normative ideals of worker protection with the achievement of productive efficiency.

Beyond bargaining: New horizons for consultation

by | Mar 16, 2025 | ACTA, ACTA 2024

Beyond bargaining: New horizons for consultation

Author Clive Thompson

ISSN: 1996-2088
Affiliations: BA Honours (Stell) LLB (UCT); Director, CoSolve; Research affiliate, African Centre for Coastal Palaeoscience, Nelson Mandela University
Source: Acta Juridica, 2024, p. 87-116
https://doi.org/10.47348/ACTA/2024/a4

Abstract

For unions worldwide, winning the right and space to engage in collective bargaining, so empowering them to forge a better deal for their members, has been a central goal for over a century. Bound up with that process has been the pursuit of a right and capacity to strike. Consultation is a more subtle form of engagement, one that has attracted less attention and resources. However, once the raw battles over union recognition and basic employee protections and rewards have been played out, influence in the workplace begins to matter as much as power. A sophisticated framework for consultation affords employees considerable latitude to shape their workplaces even as employers gain from a more fruitful engagement with their workforce. This article examines how different legal systems deal with the often intertwined processes of bargaining and consultation, contrasting some European, Japanese and Anglosphere track records. It also compares in closer detail the South African and Australian experiences, advocating a heightened role for consultation in workplace affairs.

The impact of international labour standards on democratic governance and decent work in the era of global polycrisis: Selected Southern African perspectives

by | Mar 16, 2025 | ACTA, ACTA 2024

The impact of international labour standards on democratic governance and decent work in the era of global polycrisis: Selected Southern African perspectives

Authors Evance Kalula & William Mokofe

ISSN: 1996-2088
Affiliations: LLB (Zambia) LLM (London) PhD (Warwick); Professor Emeritus of Law, University of Cape Town; Independent Chairperson, ILO Committee on Freedom of Association; LLB (UFH) LLM LLD (South Africa); Advocate of the High Court of South Africa; independent researcher
Source: Acta Juridica, 2024, p. 117-148
https://doi.org/10.47348/ACTA/2024/a5

Abstract

This contribution is a tribute to Halton Cheadle’s work over the years, particularly his significant contribution to labour legislation and policy development and the enhancement of the role of international labour standards (ILS) in the SADC sub-region and elsewhere in Africa. Ever since the establishment of the International Labour Organisation (ILO) more than a hundred years ago, ILS has been a persuasive instrument in the search for universal democratic governance norms worldwide. Nowhere has that influence and impact been as visible as in developing countries. The impact of ILS in Southern Africa has been profound, not only in the struggle against racial discrimination, for instance in Zimbabwe and South Africa, but also in fostering labour rights through what was later designated as ‘decent work’. In more recent years, the promotion of ILS has been extended through the reform of labour legislation and policy. Cheadle has been deeply involved in the work of labour law reform, starting with South Africa in 1994, efforts that culminated in the current Labour Relations Act 66 of 1995, and then other African countries, such as Nigeria and Tanzania. His contribution continued when he served as a member of the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR). In an era that can be characterised as one of ‘global polycrisis’, the importance of ILS as a well-tested yardstick, renewed to address the challenges of a rapidly changing world of work, has become greater than ever before. This article will examine and analyse selected areas related to democratic governance developments.

ILO technical assistance and law-making with integrity: Lesotho’s Labour Act of 2024

by | Mar 16, 2025 | ACTA, ACTA 2024

ILO technical assistance and law-making with integrity: Lesotho’s Labour Act of 2024

Authors Debbie Collier & Shane Godfrey

ISSN: 1996-2088
Affiliations: BA LLB (Rhodes) LLM PhD (UCT); Professor of Law and Director of the Centre for Transformative Regulation of Work, University of the Western Cape; BA (Hons) MA PhD (UCT) BProc (UNISA); Honorary Research Associate at the University of Cape Town; Honorary Senior Research Fellow, Global Development Institute, University of Manchester; Associate, Centre for Transformative Regulation of Work, University of the Western Cape
Source: Acta Juridica, 2024, p. 149-182
https://doi.org/10.47348/ACTA/2024/a6

Abstract

This article examines the role of ILO technical assistance in lawmaking and labour law reform, focusing on assistance provided in Lesotho prior to enactment of the Labour Act of 2024. ILO technical assistance often involves the use of external experts with significant influence over the development of domestic labour laws, raising questions about integrity and inclusivity in the law-making process. Drawing on our involvement in Lesotho’s labour law reform efforts between 2014 and 2024, the article considers key aspects of ILO assistance in the country’s unique socio-economic context. It highlights the importance of ensuring that labour laws are not only technically compliant with ILO conventions, but are also shaped by the deliberations of domestic stakeholders and are socially relevant and responsive to local employment and economic realities.

The Constitutional Court: Negotiating between constitutionalism and political power

by | Mar 16, 2025 | ACTA, ACTA 2024

The Constitutional Court: Negotiating between constitutionalism and political power

Authors Dennis Davis & Hugh Corder

ISSN: 1996-2088
Affiliations: BCom LLB (Cape Town) MPhil (Cantab); Judge Emeritus of the High Court of South Africa; Judge President Emeritus of the Competition Appeal Court of South Africa; Honorary Professor of Law, University of Cape Town and University of the Western Cape; BCom LLB (Cape Town) LLB (Cantab) D Phil (Oxon); Professor Emeritus of Public Law, University of Cape Town
Source: Acta Juridica, 2024, p. 183-221
https://doi.org/10.47348/ACTA/2024/a7

Abstract

The constitutional democratic order has been in place in South Africa for 30 years. During this period the Constitutional Court has established both its authority at the apex of the administration of justice and its legitimacy as the final arbiter of the lawfulness of the exercise of public power in all its manifestations. During its life, the Constitutional Court appears to have been guided in its approach to litigation before it by diverse concerns, often linked to strong personalities within its ranks and the prevailing socio-political context. It is difficult, however, to divine an overarching theory of adjudication to animate its jurisprudence. Such guidance can be discerned by attempts to ‘periodise’ the output of the Constitutional Court, as was attempted by Issacharoff in 2009. The courts have also been criticised and attacked in the public domain by party politicians who seek to divert attention from their unconstitutional conduct to scapegoat the judiciary; this is often accompanied by scandalous assaults on the constitutional order itself. Absent a unifying theory of adjudication in line with the transformative constitutional values at its core, we argue in this article that the Constitutional Court appears vulnerable to such unscrupulous undermining and is insufficiently able to defend itself and so retain public confidence in its stature, independence and fierce impartiality. Through an analysis of key judgments over the past fifteen years in particular, we seek to identify and propose the key elements of such a foundational theory of adjudication, applicable also in the vital sphere of extending constitutional prescripts into the private sphere, as contemplated by the Constitution.