ISSN: 2413-9874
Affiliations: Professor, Department of Commercial Law, University of Cape Town
Source: Industrial Law Journal, Volume 37 Issue 4, 2016, p. 2260 – 2266
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ISSN: 2413-9874
Affiliations: Lecturer, Commercial Law Department, University of Cape Town
Source: Industrial Law Journal, Volume 37 Issue 4, 2016, p. 2251 – 2259
There are various ways in which an employer may discipline an employee for his or her misconduct. Labour law jurisprudence and the general boni mores of society would hold that it is important to ensure that employers choose the best, most fair and least traumatic method of disciplining their employees. Heed in this connection should be taken of the effect of the discipline on both the employee and employer, and the workplace dynamics between them. Consideration should also be given to whether the employment relationship can be salvaged. A critical question in this respect is whether the imposition of an alternative sanction to dismissal necessarily implies that the relationship may be repaired as this could have ramifications in circumstances where an employer grants an employee a choice of sanction. For instance, if the employer offers an employee the option of either an unpaid suspension or a dismissal for the same misconduct and the employee chooses dismissal but later submits to a tribunal that the dismissal was unfair, can the employer rely on the argument that the employment relationship was intolerable despite having offered the employee the lesser alternative sanction? Apart from exploring this situation, the article further proposes different theories as a basis for examining the diverse approaches which have been adopted in the imposition of alternative sanctions. Finally, it explores the parameters of the different types of alternative sanctions and their efficacy.
ISSN: 2413-9874
Affiliations: Associate Professor, School of Law, UKZN; Attorney of the High Court
Source: Industrial Law Journal, Volume 37 Issue 4, 2016, p. 2237 – 2250
Work-life balance is premised upon the availability of time for paid and unpaid pursuits, the ability to cope with the mental and physical strain of the job, the availability and use of flexible working arrangements, autonomy in relation to where and when the employee works, and the availability and degree of support for work-life balance in the workplace and social/family unit. This article argues that the attainment of work-life balance is integral to a sustainable workplace and is necessary to meet the demands faced by employees in the 21st century. In support of this argument it considers the drivers for work-life balance policies and practices, including the evolving workforce, the impact of globalisation on business practices and the business case for work-life balance policies and practices. It further considers the obstacles posed by employee perception of the take-up and use of work-life balance practices. The article concludes that work-life balance can be attained by providing organisational support and accommodation for such policies and practices and by changing cultural, societal and gendered perceptions in this regard.
ISSN: 2413-9874
Affiliations: Senior Lecturer, Commercial Law Department, University of Cape Town; Institute of Development and Labour Law, University of Cape Town; Co-ordinator: Labour and Enterprise Policy Research Group, University of Cape Town
Source: Industrial Law Journal, Volume 37 Issue 4, 2016, p. 2211 – 2236
The restructuring of production and rise of services pose significant challenges to trade unions with regard to organisation and collective bargaining in South Africa and globally. In response, NUMSA has resolved to organise all workers at firms, including core and non-core, and all workers along value chains. In effect this means organising and bargaining across sectors, which is contrary to the sectoral orientation embedded in the country’s labour legislation and the strategies of most trade unions. This article examines the legal and practical obstacles at sector and enterprise level that face NUMSA and any unions that might follow its lead. It concludes that while NUMSA’s strategy might be an appropriate response to the changes in the world of work, the statutory framework for organising and bargaining and the existing structures and practices that regulate organising and bargaining on the ground create a number of hurdles for the union and could cause tensions in the existing collective bargaining system.
ISSN: 2413-9874
Affiliations: Advocate of the High Court of South Africa; Adjunct Professor of Law at Nelson Mandela Metropolitan University
Source: Industrial Law Journal, Volume 37 Issue 4, 2016, p. 2193 – 2210
This article examines undecided and controversial issues relating to the review of CCMA arbitration awards. Firstly, with what intensity should a review for reasonableness be undertaken by the Labour Court? This involves trying to determine the point at which the elastic of reasonableness should snap so as to give rise to a review. Secondly, assuming that all material errors of law are reviewable, what constitutes an error of law? Discussed here is the interconnection between findings of fact and law, and the finding by the Supreme Court of Appeal in the Oscar Pistorius case that a failure to consider material facts constitutes an error of law. Thirdly, what is the reach of the (latent) gross irregularity ground of review? Explored under this head is the Tao Ying debate; Zondo J’s judgment in Toyota dealing with the failure by commissioners to resolve and determine issues; and the meaning of the phrase ‘misconceived the nature of the inquiry’. The law on each of these issues is unsettled. The article concludes with the suggestion that it is time that the Constitutional Court pronounces on the review test again.