ISSN: 2517-9543
Affiliations: Dean: Faculty of Law, Thompson Rivers University
Source: Juta’s Insurance Law Bulletin, Volume 27 Issue 1, 2024, p. 3-5
None
ISSN: 2517-9543
Affiliations: Dean: Faculty of Law, Thompson Rivers University
Source: Juta’s Insurance Law Bulletin, Volume 27 Issue 1, 2024, p. 7-9
None
ISSN: 2517-9543
Affiliations: Dean: Faculty of Law, Thompson Rivers University
Source: Juta’s Insurance Law Bulletin, Volume 27 Issue 1, 2024, p. 9-12
None
ISSN: 2517-9543
Affiliations: Dean: Faculty of Law, Thompson Rivers University
Source: Juta’s Insurance Law Bulletin, Volume 27 Issue 1, 2024, p. 13-15
None
ISSN: 2517-9543
Affiliations: Dean: Faculty of Law, Thompson Rivers University
Source: Juta’s Insurance Law Bulletin, Volume 27 Issue 1, 2024, p. 16
None
ISSN: 2517-9543
Affiliations: Dean: Faculty of Law, Thompson Rivers University
Source: Juta’s Insurance Law Bulletin, Volume 27 Issue 1, 2024, p. 16
None
ISSN: 2517-9543
Affiliations: Dean: Faculty of Law, Thompson Rivers University
Source: Juta’s Insurance Law Bulletin, Volume 27 Issue 1, 2024, p. 16
None
ISSN: 2413-9874
Affiliations: Emeritus Professor of Law, University of the Western Cape
Source: Industrial Law Journal, Volume 45 Issue 4, 2024, p. 2133 – 2156
https://doi.org/10.47348/ILJ/v45/i4a1
The article addresses the issue of disguised employment in today’s economy where, despite a proliferation of new forms of work, the right to statutory labour rights remains dependent on employment status. It examines the origin of the prevailing dominant impression test in Smit v Workmen’s Compensation Commissioner, noting the court’s preoccupation with returning South African law to its Roman-Dutch roots and its rejection, on flimsy legal grounds, of the organisation test as an alien institution of English law. It was thereafter sidelined for decades and, although it has been recognised in recent labour legislation and acknowledged in recent case law, it has not been applied or developed to a significant extent. Noting that the Smit judgment is not aligned with constitutional values, the article argues that employment protection should apply to everyone who regularly works for (the business of) another and that the organisation test offers a crucial indicator of employment status that resonates with constitutional principles. It further suggests that international precedent, such as the ‘ABC’ standard incorporated in the California Labor Code, can be drawn on in developing the organisation test in the South African context.
ISSN: 2413-9874
Affiliations: Emeritus Professor of Law, University of the Western Cape
Source: Industrial Law Journal, Volume 45 Issue 4, 2024, p. 2157 – 2186
https://doi.org/10.47348/ILJ/v45/i4a2
The article advances the notion in the context of South African labour law that the purpose of labour law is to protect the human dignity of employees. In doing so, it deviates from the accepted idea that the purpose of labour law in South Africa is to restrict the power of employers to impose their will in the employment relationship so that employees are treated fairly. Dignity is furthermore integrated and conceptualised in a manner that enhances its substantive use in labour law. This is achieved by adjusting the test for fairness of labour practices and by presenting a dignity framework. The framework consists of two dignity models: the ‘same-kind dignity model’ and the ‘self-fulfilment dignity model’. The framework furthermore harnesses the social justice rules that are applied in South African labour law to resolve the perceived tension between individualistic and communitarian facets of dignity.
ISSN: 2413-9874
Affiliations: Associate Professor, Department of Private Law, University of Johannesburg; Associate Professor, School of Law, University of the Witwatersrand
Source: Industrial Law Journal, Volume 45 Issue 4, 2024, p. 2187 – 2210
https://doi.org/10.47348/ILJ/v45/i4a3
This article examines the balance between protecting an employer’s confidential information and the enforceability of restraint of trade agreements. Central to the discourse is the principle that while employers legitimately seek to safeguard their proprietary information and trade secrets, such measures must align with public policy considerations to avoid unduly curtailing employees’ employment opportunities. Restraint of trade clauses are not inherently invalid but must be scrutinised for their reasonableness, necessity in protecting legitimate business interests and compliance with public policy. Focusing on confidential information as a key protectable interest, the article delineates the conditions under which such information qualifies for protection and how its misuse by former employees poses a legitimate concern for employers. The article underscores a growing tendency to prioritise the safeguarding of employers’ interests, particularly concerning proprietary information. This focus has led to foundational contractual principles being overlooked. The article argues for a nuanced understanding that considers the confidentiality undertaking, location and timing. It underscores the need for the judicious drafting and enforcement of restraint of trade clauses and confidentiality undertakings, guided by clear legal principles that safeguard both employers’ proprietary interests and the public interest in fair competition and employment mobility.