ISSN: 2413-9874
Affiliations: Professor, School of Law, University of KwaZulu Natal
Source: Industrial Law Journal, Volume 36 Issue 3, 2015, p. 1781
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ISSN: 2413-9874
Affiliations: Professor, Faculty of Law, University of Cape Town
Source: Industrial Law Journal, Volume 36 Issue 3, 2015, p. 1775 – 1781
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ISSN: 2413-9874
Affiliations: Judge of the High Court
Source: Industrial Law Journal, Volume 36 Issue 3, 2015, p. 1766 – 1774
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ISSN: 2413-9874
Affiliations: Former senior lecturer, Department of Commercial Law, University of Cape Town
Source: Industrial Law Journal, Volume 36 Issue 3, 2015, p. 1748 – 1765
The Labour Relations Act and the decisions of the labour courts interpreting the provisions of the Act limit the managerial prerogatives of directors to retrench workers in order to increase profits by requiring that employers must consider alternatives to dismissals. In addition, the Companies Act requires that directors must act in good faith, for a proper purpose and in the best interests of the company. The best interests of the company include those of all its stakeholders, including the workers. It therefore requires of directors to balance the interests of all stakeholders when making the decision to retrench. The ethical duties of directors include compulsory compliance with legislation but taking into account the corporate social responsibility of the company. The corporate social responsibility of the company is towards all of its stakeholders, not only the shareholders. It is contended that both the legal and ethical duties of directors require that retrenchments in order to increase profits should be allowed only when the long-term sustainability of the company in the interest of all its stakeholders requires it, as opposed to the short-term interests of only the directors or shareholders.
ISSN: 2413-9874
Affiliations: Lecturer in Law, North West University
Source: Industrial Law Journal, Volume 36 Issue 3, 2015, p. 1719 – 1747
Sexual harassment is strictly prohibited as a form of unfair sex discrimination in the workplace by the Employment Equity Act 55 of 1998 as amended by the Employment Equity Amendment Act 47 of 2013. To ensure proper adjudication of such cases, presiding officers should consider the Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace of 2005 in relevant matters. The code provides the key elements that need to be considered when determining whether certain conduct constitutes sexual harassment. Closer scrutiny of South African case law, however, shows that multiple presiding officers fail properly to take the code into account, causing inappropriate conclusions. By not applying the code to cases of alleged sexual harassment, the facts could be misconstrued, leaving the victim with no protection from sex discrimination and their right to privacy and dignity infringed.
ISSN: 2413-9874
Affiliations: Director, Knowledge Management, Cliffe Dekker Hofmeyr Inc
Source: Industrial Law Journal, Volume 36 Issue 3, 2015, p. 1693 – 1718
It is well established that employers may use workforce reductions for operational reasons as a business tool, provided that they meet the statutory requirements imposed on such terminations of employment. It is also well known that the Labour Relations Act is the primary piece of legislation dealing with the obligations resting on employers in such circumstances. Other legislation may, however, impact on the extent to which retrenchments may serve as a legitimate option or tool for employers. One such piece of legislation is the Competition Act. The competition authorities have gradually developed a body of law that interprets their statutory authority to question the justifiability of retrenchments that occur within entities that find themselves within the area of influence of these authorities — most clearly in the merger context. This has culminated in the publication of draft guidelines for the assessment of public interest provisions in mergers by the Competition Commission. This article summarises and clarifies the respective approaches of each of the labour and competition courts and tribunals to employer decision making in retrenchment situations and highlights the risks associated with developing potentially contradictory legal obligations, both applicable to the same set of facts, in isolation.