Reasonableness Review — The Quest for Consistency

by | Oct 19, 2024 | ILJ, ILJ V45 I3

Reasonableness Review — The Quest for Consistency

Author Anton Myburgh

ISSN: 2413-9874
Affiliations: Senior Counsel, Johannesburg Bar (Sandton); Adjunct Professor of Law, Nelson Mandela University
Source: Industrial Law Journal, Volume 45 Issue 3, 2024, p. 1377 – 1394
https://doi.org/10.47348/ILJ/v45/i3a1

Abstract

Reasonableness reviews in the Labour Court are something of a lottery because different judges have different thresholds for unreasonableness. This article discusses three things that the labour courts can do with a view to achieving a measure of consistency in decision-making: firstly, by determining the intensity with which reasonableness reviews should be undertaken, particularly in relation to dismissal for misconduct awards; secondly, by setting uniform standards for the threshold for unreasonableness; and, thirdly, by adopting a uniform approach to the methodology involved in testing for reasonableness on review.

Barriers to the Making or Breaking of Severance Pay

by | Oct 19, 2024 | ILJ, ILJ V45 I3

Barriers to the Making or Breaking of Severance Pay

Authors Rochelle le Roux & Euraeffie Oppon

ISSN: 2413-9874
Affiliations: Professor, Faculty of Law, University of Cape Town; PhD candidate, Faculty of Law, University of Cape Town
Source: Industrial Law Journal, Volume 45 Issue 3, 2024, p. 1395 – 1423
https://doi.org/10.47348/ILJ/v45/i3a2

Abstract

The retrenchment and severance pay provisions in the Labour Relations Act 66 of 1995 (LRA) cannot be reviewed without analysing the supporting provisions of s 41 of the Basic Conditions of Employment Act 75 of 1997 (BCEA), specifically the relationship between s 41(4) and s 84(2) of the BCEA and the jurisprudence on these provisions to date. Ultimately, the courts’ reasoning is that s 41(4) of the BCEA ensures employment security by deterring employers from retrenching employees by paying severance pay, and conversely by ensuring that employees do not unreasonably refuse alternative employment in an effort to frustrate the retrenchment process or to secure a severance payment instead. Further focal discussion points in this article are the determination of the reasonableness of rejecting alternative employment, the length of the interruption(s) in the employment period, and the calculation of severance pay that is due to affected employees (taking into account any prior payments already made to the employees). Additionally, the impact of contractually agreed severance pay on the BCEA statutory provisions is considered and recent jurisprudence in this regard is critiqued.

Discourse on Menstrual Leave in a South African Context

by | Oct 19, 2024 | ILJ, ILJ V45 I3

Discourse on Menstrual Leave in a South African Context

Authors Annalise Thulapersad & Janine Hicks

ISSN: 2413-9874
Affiliations: LLB (KwaZulu-Natal), LLM (KwaZulu-Natal); Senior Lecturer in Law, University of KwaZulu-Natal, LLB (KwaZulu-Natal), MA (University of Sussex), PhD (KwaZulu-Natal)
Source: Industrial Law Journal, Volume 45 Issue 3, 2024, p. 1424 – 1453
https://doi.org/10.47348/ILJ/v45/i3a3

Abstract

The notion of menstrual leave as a workplace leave entitlement has begun gaining global traction, with Spain recently becoming the first European country to implement a specific menstrual leave policy. South Africa’s labour law does not include a provision entitling female employees to menstrual leave. Consequently, women are forced to utilise their sick leave if they are unable to attend work due to menstrual pain and discomfort. Should the South African government respond to calls for the inclusion of menstrual leave in labour law, there are several factors which lawmakers and employers in South Africa would need to consider. This article examines relevant South African labour legislation and state obligations in terms of international, regional and constitutional law with a view to the introduction of menstrual leave in South Africa. It further assesses global best practice and provides an analysis of possible policy measures, practical implementation considerations and legislative amendments to the Basic Conditions of Employment Act 75 of 1997, while also examining the application of existing provisions within the Employment Equity Act 55 of 1998 in order to contribute to this discourse.

Termination of Employment by the Employer without Giving Reasons in Uganda and Art 4 of the ILO Termination of Employment Convention

by | Oct 19, 2024 | ILJ, ILJ V45 I3

Termination of Employment by the Employer without Giving Reasons in Uganda and Art 4 of the ILO Termination of Employment Convention

Author Jamil Ddamulira Mujuzi

ISSN: 2413-9874
Affiliations: Professor, University of the Western Cape
Source: Industrial Law Journal, Volume 45 Issue 3, 2024, p. 1453 – 1474
https://doi.org/10.47348/ILJ/v45/i3a4

Abstract

Uganda ratified the International Labour Organisation (ILO) Termination of Employment Convention 1982 without reservations. Article 4 of the convention provides that ‘[t]he employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service’. Uganda has not yet domesticated the whole convention and art 4 in particular. Section 65(1)(a) of the Employment Act 2006 provides that termination of a contract of employment or service is deemed to take place ‘where the contract or service is ended by the employer with notice’. It is silent on whether the employer has to give reasons for the termination. There are many cases in which the Industrial Court has relied on art 4 of the convention to hold that s 65(1)(a) of the Act requires an employer to give reasons for the termination of employment. However, these decisions have been set aside by the Court of Appeal on the grounds that s 65(1)(a) does not require an employer to give reasons and that art 4 has not been domesticated. In this article, the author relies on the drafting history of the Employment Act to argue that it was an oversight on the part of Parliament to omit the requirement for an employer to give reasons for terminating employment under s 65(1)(a). It is also argued, inter alia, that s 65(1)(a), as interpreted by the Court of Appeal, is unconstitutional and contrary to Uganda’s international treaty obligations. The conclusion of this article is that s 65(1)(a) should be interpreted as requiring an employer to give reasons for termination of employment. Reliance may be placed on legislation from countries such as Ghana, Malawi, the Seychelles and Zambia to suggest ways in which Uganda could expressly domesticate art 4 of the convention. The author also argues that the Supreme Court’s decision in DFCU Bank Ltd v Kamuli (2020) to the effect that the Court of Appeal is the apex court in labour matters is contrary to the drafting history of the Constitution.

Note: Systemic Delays and Penalty Reviews: Govender & others v CCMA & others (2024) 45 ILJ 1197 (LAC)

by | Oct 19, 2024 | ILJ, ILJ V45 I3

Note: Systemic Delays and Penalty Reviews: Govender & others v CCMA & others (2024) 45 ILJ 1197 (LAC)

Author Craig Bosch & Anton Myburgh

ISSN: 2413-9874
Affiliations: Advocate, Cape Bar; Senior Counsel, Johannesburg Bar
Source: Industrial Law Journal, Volume 45 Issue 3, 2024, p. 1475 – 1490
https://doi.org/10.47348/ILJ/v45/i3a5

Abstract

This judgment is important for two main reasons. Firstly, it highlights that systemic delays in the determination of review applications remain the norm, and it is a case study in the Labour Appeal Court (LAC) attempting to combat the consequences by way of creative decision‑making. Secondly, it is another example of the LAC having engaged in a high-intensity penalty review, but arguably having gone too far and not having applied the test for reasonableness correctly.

Back to the Future: Revisiting the ‘Organisation Test’ as a Criterion of Employment

by | Oct 12, 2024 | ILJ, ILJ V45 I4

Back to the Future: Revisiting the ‘Organisation Test’ as a Criterion of Employment

Author Darcy du Toit

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

Abstract

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.