Labour Dispute Resolution: Jurisdictional Potholes, Pitfalls and Dongas: Reflecting on Recent Jurisprudence

by | May 25, 2023 | ILJ, ILJ V43 I3

Labour Dispute Resolution: Jurisdictional Potholes, Pitfalls and Dongas: Reflecting on Recent Jurisprudence

Authors Rochelle le Roux & Peter le Roux

ISSN: 2413-9874
Affiliations: Professor, Faculty of Law, University of Cape Town; Executive Consultant at ENSafrica
Source: Industrial Law Journal, Volume 43 Issue 3, 2022, p. 1443 – 1472

Abstract

Jurisdiction refers to the ‘power’ or competence of a court (or other dispute resolution fora) to hear and determine a matter. In the case of labour dispute resolution, the observance of prior procedures, the causes of action pleaded, the characterisation of (and reasons for) disputes, the observance of time periods, the completion of formalities, and the existence of certain pre-determined events or conditions, might all be relevant when determining jurisdiction. While it has been held that unlawful dismissals (as opposed to unfair dismissals) cannot be pursued under the Labour Relations Act 66 of 1995 (LRA), the binary divide between unlawfulness and unfairness continues to be challenged at labour dispute resolution fora. With the help of eleven narratives, each focusing on a particular jurisdictional issue and prefaced by a key question and/or statement, this article considers the jurisprudence of the last five years or so that has either added to, or settled, some of these jurisdictional challenges in labour dispute resolution. Among others, the article also addresses the fallacy that the Labour Court has jurisdiction over all disputes that arise in the context of an employment relationship and considers the extent to which disputes based on unlawfulness can be pursued in terms of the LRA.

Pregnancy and Marital Status Discrimination

by | May 25, 2023 | ILJ, ILJ V43 I3

Pregnancy and Marital Status Discrimination

Authors Marius van Staden & Amanda Boniface

ISSN: 2413-9874
Affiliations: Associate Professor, Department of Public Law, University of Johannesburg; Associate Professor, Department of Private Law, University of Johannesburg
Source: Industrial Law Journal, Volume 43 Issue 3, 2022, p. 1473 – 1498

Abstract

Despite constitutional and legislative protections against unfair pregnancy and marital discrimination, it is argued that in practice these grounds have not yet developed into fully-fledged grounds of discrimination. Rather, they are often determined with reference to factors such as sex and gender. This phenomenon continues to perpetuate sex and gender stereotypes. With recourse to comparative examples, the article critically considers the legal mechanisms that South Africa has implemented to address these forms of discrimination. It is argued that aspects of the legal provisions enacted to prohibit the above forms of discrimination have the consequence of maintaining sex and gender stereotypes, fostering discrimination against (mainly) women in the workplace, men at home, and homosexual and transgender people’s parenting ambitions. The article makes several recommendations for law reform that move beyond a legislative framework centred around sex and gender in order to protect such persons from discrimination based on pregnancy and marital status. It argues that pregnant women should be granted more freedom to plan and structure their maternity leave and that they should be able to transfer a portion of their maternity leave to their partners. Parental, adoption and surrogacy leave should be extended, and pregnancy and marital status discrimination protection should be extended to men, homosexual partners and transgender persons. Legal fragmentation and the exclusion of informal and atypical workers from current protection should also be addressed.

The Seychelles Employment Tribunal and its Application and Interpretation of the Grievance Procedure Provisions under the Employment Act:

by | May 25, 2023 | ILJ, ILJ V43 I3

The Seychelles Employment Tribunal and its Application and Interpretation of the Grievance Procedure Provisions under the Employment Act

Author Jamil Ddamulira Mujuzi

ISSN: 2413-9874
Affiliations: Professor, Faculty of Law, University of the Western Cape
Source: Industrial Law Journal, Volume 43 Issue 3, 2022, p. 1499 – 1521

Abstract

In 2008 the Seychelles Employment Act of 1995 was amended by the Employment (Amendment) Act (2008), inter alia, to establish the Employment Tribunal. Between 3 December 2008 and 1 December 2021, the tribunal received 2,478 civil cases and 172 criminal cases. The author examined 648 files for the years from 2012-2021 to assess how the tribunal has applied or interpreted the Employment Act to deal with grievances between workers and employers and focuses primarily on dismissal and disciplinary issues short of dismissal. The article highlights certain shortcomings in the procedures and practice of the tribunal, and suggests amendments for their resolution. Inter alia, it argues that where one of the parties fails to appear before a competent officer for mediation, the officer should not issue a certificate to the effect that mediation was unsuccessful. Furthermore, the tribunal’s approach of treating criminal matters as civil ones could be encouraging some employers to terminate contracts of employment unjustifiably; and, in addition, the tribunal should be clear on who has the burden to prove termination of employment in cases where the termination is contentious. Since many respondents refuse or fail to appear before a competent officer for mediation and there is case law from the Supreme Court suggesting that mediation is not mandatory, the Act may have to be amended to make mediation mandatory before a complaint is taken to the tribunal.

Note: A Much Needed Re-affirmation of a Settled Principle of Law

by | May 25, 2023 | ILJ, ILJ V43 I3

Note: A Much Needed Re-affirmation of a Settled Principle of Law

Author Fanelesibonge Mabaso

ISSN: 2413-9874
Affiliations: LLB (University of KwaZulu-Natal), LLM (University of KwaZulu-Natal), PhD Candidate (University of KwaZulu-Natal)
Source: Industrial Law Journal, Volume 43 Issue 3, 2022, p. 1522 – 1530

Abstract

This case note concerns the Constitutional Court’s reaffirmation of the principles relating to cost orders in labour law. The matter relates to a costs order that had been awarded by the Labour Court without it furnishing reasons for imposing such order. The Constitutional Court confirmed that the principle that costs orders should not follow the winner was rooted in the Labour Relations Act 66 of 1995 and the Constitution of the Republic of South Africa, 1996. The note argues that the apex court could have gone a step further in emphasising how issues relating to poor workers, such as those of race and class, should be taken into account in the awarding of such orders.