Note: Is Retirement Age a Moving Target? A Review of Recent Jurisprudence

by | May 24, 2023 | ILJ, ILJ V42 I4

Note: Is Retirement Age a Moving Target? A Review of Recent Jurisprudence

Authors Marius van Staden & Michele van Eck

ISSN: 2413-9874
Affiliations: Associate Professor, Department of Public Law, University of Johannesburg; Senior Lecturer, Department of Private Law, University of Johannesburg
Source: Industrial Law Journal, Volume 42 Issue 4, 2021, p. 2099 – 2115

Abstract

A practice that is becoming commonplace is for employers to reserve the right to change the date of retirement. The note examines contractual and legislative mechanisms for changing an employee’s retirement age and three recent LAC cases in which the employer has done so. Individual contracts may include a reference to a staff handbook and may allow the employer to change employees’ retirement age contained in the handbook. This amendment may be made without obtaining the employee’s consent because the common law recognises that an employer has the right to make changes in these contexts as long as this discretion is exercised reasonably.

Multi-sectoral Workplaces and Trade Unions: The Unforeseen Consequences of Demarcation Principles and Organisational Rights

by | May 24, 2023 | ILJ, ILJ V42 I2

Multi-sectoral Workplaces and Trade Unions: The Unforeseen Consequences of Demarcation Principles and Organisational Rights

Authors Shane Godfrey, Mario Jacobs & Emma Fergus

ISSN: 2413-9874
Affiliations: Director, Labour, Development and Governance Research Unit, University of Cape Town; Researcher, Labour, Development and Governance Research Unit, University of Cape Town; Senior Lecturer, Commercial Law Department; Labour, Development and Governance Research Unit, University of Cape Town
Source: Industrial Law Journal, Volume 42 Issue 2, 2021, p. 692 – 708

Abstract

The article explores how the changing organisation of work combined with a long-standing legal principle of demarcation disputes and the organisational rights scheme of the Labour Relations Act underlie a significant shift in trade union organisation. The externalisation of work is leading to multi-sectoral workplaces which (among other factors) is motivating trade unions to organise outside their traditional sectors. A legal principle established in demarcation disputes (ie it is the nature of the business of the employer that determines the sector in which the employer is located) has been adopted by commissioners when determining organisational rights disputes to the detriment of trade unions. Unions are responding in part by expanding their organisational scope, in effect becoming multi-sectoral unions. One is therefore seeing a fundamental shift away from industrial unionism to multi-sectoral or even general unionism. This shift, we argue, will lead to a rise in trade union rivalry and will have serious consequences for collective bargaining.

Repositioning Sexual Harassment: Integration and Objectivity as Guiding Principles in the ILO Convention 190 and the Draft Code against Violence and Harassment in the World of Work

by | May 24, 2023 | ILJ, ILJ V42 I2

Repositioning Sexual Harassment: Integration and Objectivity as Guiding Principles in the ILO Convention 190 and the Draft Code against Violence and Harassment in the World of Work

Authors Debbie Collier & Monique Carels

ISSN: 2413-9874
Affiliations: Associate Professor, Department of Commercial Law, Institute of Development and Labour
Law, University of Cape Town; Lecturer, Department of Commercial Law, University of Cape Town
Source: Industrial Law Journal, Volume 42 Issue 2, 2021, p. 692 – 708

Abstract

Currently, sexual harassment in the workplace is treated as an exceptional form of unfair discrimination on the basis of sex, gender or sexual orientation; and more generally, harassment, if it is based on a listed or analogous ground, is treated as a form of discrimination, which is prohibited in terms of the Employment Equity Act. In recent developments, the International Labour Organisation’s Convention on Violence and Harassment in the World of Work 190 of 2019 and South Africa’s Draft Code of Good Practice on the Prevention and Elimination of Violence and Harassment in the World of Work of 2020 introduce the term ‘violence and harassment’ as an organising concept for the many forms of unacceptable behaviour in the workplace that cause, or are likely to cause, harm (physical, psychological, sexual or economic). While the concept of ‘violence and harassment’ includes sexual harassment, it is not limited to conduct that amounts to discrimination. In addition to prohibiting forms of violence and harassment, Convention 190 requires the adoption of an inclusive, integrated and gender-responsive approach for the prevention and elimination of violence and harassment in the world of work. In this article we consider the implications of these developments for South Africa. In particular we argue that the current legal framework establishes a fragmented and complex system for resolving sexual harassment disputes; and we consider the impact on this system if the organising concept of violence and harassment were to be adopted, with violence and harassment prohibited within an inclusive and integrated approach. We caution that, in the absence of carefully crafted legislative revisions to the current legal framework, the system may become even more complex and fragmented.

The Dependent Contractor: A Missing Piece in the SITA Test and the Definition of Employee in the LRA

by | May 24, 2023 | ILJ, ILJ V42 I2

The Dependent Contractor: A Missing Piece in the SITA Test and the Definition of Employee in the LRA

Author Tumo C Maloka & Chuks Okpaluba

ISSN: 2413-9874
Affiliations: Associate Professor, School of Law, University of Limpopo; Professor and Research Fellow, Centre for Human Rights, University of Free State
Source: Industrial Law Journal, Volume 42 Issue 2, 2021, p. 709 – 727

Abstract

A missing piece of the puzzle in the three-fold SITA test for determining the existence of an employment relationship as well as a lacuna in the statutory definition of an ‘employee’ in s 213 of the Labour Relations Act 66 of 1995 (LRA) have arguably failed to receive sufficient scholarly, judicial and legislative attention. The three-fold SITA test refined by Benjamin and endorsed by judicial practitioners draws attention to the importance of distinguishing personal dependence from economic dependence. The absence of a dependent contractor category in the LRA renders the SITA test an imprecise tool for tackling the fine margins of self-employment. If the statutory definition of an ‘employee’ were amended to include a ‘dependent contractor’, protection would be extended to persons who have some of the trappings of the independent contractor, but, in reality, are in a position of economic dependence, analogous to that of a subordinate employee. The dependent contractor category accords well with the goals of labour regulation in terms of promoting countervailing power.

Case Note: Determining the Correct Role for the Concept of Dignity in Unfair Discrimination Claims: A Discussion of Naidoo & others v Parliament of the Republic of SA (2020) 41 ILJ 1931 (LAC):

by | May 24, 2023 | ILJ, ILJ V42 I2

Case Note: Determining the Correct Role for the Concept of Dignity in Unfair Discrimination Claims: A Discussion of Naidoo & others v Parliament of the Republic of SA (2020) 41 ILJ 1931 (LAC)

Author Muyenga Edward Mugerwa-Sekawabe

ISSN: 2413-9874
Affiliations: Graduate LLB Student (University of Cape Town), Justice Dikgang Moseneke Fellow, Legal Writing Center Tutor (University of Cape Town)
Source: Industrial Law Journal, Volume 42 Issue 2, 2021, p. 728 – 735

Abstract

This note considers the dispute regarding the correct interpretation of s 6 of the Employment Equity Act through an examination of the Labour Appeal Court’s decision in Naidoo & others v Parliament of the Republic of SA (2020) 41 ILJ 1931 (LAC). It concludes that the phrase ‘any other arbitrary ground’ of unfair discrimination should be interpreted narrowly by the courts. The note, through examining the Constitutional Court’s decision in Hugo, illustrates that the requirement of the impairment of dignity in cases of unfair discrimination lacks credibility and should, therefore, be rejected. An alternative approach to establishing unfair discrimination is proposed that follows from the ‘correct’ interpretation of Hugo. Lastly, this alternative approach is applied to the facts in Naidoo to demonstrate that the Labour Appeal Court erred in its decision.

Note: Discrimination on an ‘Arbitrary Ground’ and the Right of Access to Justice

by | Apr 23, 2023 | ILJ, ILJ V42 I1

Note: Discrimination on an ‘Arbitrary Ground’ and the Right of Access to Justice

Author Darcy du Toit

ISSN: 2413-9874
Affiliations: Emeritus Professor and Coordinator, Labour Law 4.0 niche area, University of the Western Cape
Source: Industrial Law Journal, Volume 42 Issue 1, 2021, p. 1 – 15

Abstract

In Naidoo & others v Parliament of the Republic of SA the Labour Appeal Court interpreted ‘arbitrary ground’ in s 6(1) of the Employment Equity Act by rejecting a ‘broad’ interpretation (ie the grammatical meaning of the term) and defining it ‘narrowly’ to mean the same as an ‘unlisted’ ground of discrimination. Looking at the judgment through the lens of access to justice, the note observes that the judgment raises a number of questions. These include: (a) the purpose of the amendment to s 6(1) by which ‘arbitrary ground’ was added; (b) the relationship between the concepts of ‘arbitrary ground’ in s 6(1) and s 187(1)(f) of the Labour Relations Act; (c) the application of the principles of legal interpretation to ‘arbitrary ground’; (d) the implications and limits of a ‘broad’ interpretation; (e) the social dimension of the constitutional context; (f) whether discrimination on an ‘arbitrary ground’ is by definition invasive of human dignity; (g) whether a ‘narrow’ interpretation of ‘arbitrary ground’ involves reading an implicit limitation into s 6(1); and case law in which a ‘broad’ approach was adopted. The note seeks to address these questions.