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.

Dignity and the Purpose of Labour Law

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

Dignity and the Purpose of Labour Law

Author Ruben Orton

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

Abstract

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.

The Protection of Confidential Information in Restraint of Trade Agreements

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

The Protection of Confidential Information in Restraint of Trade Agreements

Authors Michelle van Eck & Marthinus van Staden

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

Abstract

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.

Note: Can a Hypothetical Comparator be used in an Equal Pay Claim under Section 6(4) of the EEA?

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

Note: Can a Hypothetical Comparator be used in an Equal Pay Claim under Section 6(4) of the EEA?

Author Shamier Ebrahim

ISSN: 2413-9874
Affiliations: Senior Lecturer, Department of Mercantile Law, Unisa; Advocate of the High Court of South Africa; LLB (NMMU); LLM Labour Law (cum laude) (Unisa); LLD (Unisa)
Source: Industrial Law Journal, Volume 45 Issue 4, 2024, p. 2211 – 2221
https://doi.org/10.47348/ILJ/v45/i4a4

Abstract

This note deals with the question whether a hypothetical comparator can be used in an equal pay claim under s 6(4) of the Employment Equity Act. A reading of s 6(4) which contains the three equal pay causes of action requires an equal pay claimant to compare her terms and conditions of employment with those of an actual comparator. This, however, is not the end of the matter as item 6.5 of the Equal Pay Code provides that an equal pay claimant may base an equal pay claim on the ground that she would have received higher pay if she were not a female and this allows for the use of a hypothetical comparator. It is contended that s 6(4) of the EEA, read with item 6.5 of the Equal Pay Code (and Mutale’s case), provides for the use of a hypothetical comparator and this argument is buttressed by both international labour law and United Kingdom equal pay law.

Note: Mandatory Sanctions Miss the Mark: An Evaluation of Centre for Child Law & others v SA Council for Educators & others 2024 (4) SA 473 (SC)

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

Note: Mandatory Sanctions Miss the Mark: An Evaluation of Centre for Child Law & others v SA Council for Educators & others 2024 (4) SA 473 (SC)

Author Cecile de Villiers

ISSN: 2413-9874
Affiliations: Lecturer, University of Cape Town
Source: Industrial Law Journal, Volume 45 Issue 4, 2024, p. 2221 – 2238
https://doi.org/10.47348/ILJ/v45/i4a5

Abstract

Managing the conduct of public educators is the joint responsibility of the relevant provincial department of education as employer and the South African Council for Educators (educators’ council) tasked with upholding ethics in basic education. Each has its own disciplinary code and procedures to manage educator misconduct, and both include mandatory sanctions for misconduct such as assault. The Centre for Child Law challenged the disciplinary decisions by presiding officers in two assault cases where mandatory sanctions were imposed in line with the mandatory sanctions policy of the educators’ council. While the High Court found it a constitutional imperative that the educators’ council revise its mandatory sanctions policy, the Supreme Court of Appeal (SCA) held that the policy unlawfully restricted decision- makers’ discretion. The disciplinary decisions made by the educators’ council were held to be unlawful, invalid and in breach of its constitutional obligations towards children. This note illustrates the risks posed by mandatory sanctions to the effective management of educator misconduct. It argues that the SCA judgment has broader significance for the management of misconduct, particularly assault, in public basic education and that the educators’ council and employer should abandon mandatory sanctions in response to educator misconduct.