Albinism in the South African Workplace: A Labour Law Perspective

by | Apr 23, 2023 | ILJ, ILJ V41 I3

Albinism in the South African Workplace: A Labour Law Perspective

Author L Fourie

ISSN: 2413-9874
Affiliations: Lecturer in the Department of Mercantile Law, University of the Free State, LLB LLM PDFP (UFS) PhD Candidate (Leiden University)
Source: Industrial Law Journal, Volume 41 Issue 3, 2020, p. 1524 – 1546

Abstract

Persons living with albinism represent one of society’s most defenceless groups. An estimated one in 5 000 Africans living south of the Sahara are affected by albinism. Persons with albinism experience a lack of melanin, resulting in physical impairments, including poor vision and skin cancers. These disorders set the scene for such people to be subjected to different treatment on the basis of their racial affiliation, colour, and disability — thus requiring that they receive special protection against unfair discrimination. The South African Constitution provides for a right to equality and prohibits the unequal treatment of persons on the basis of their race, colour and disability. This constitutional right is promoted within the labour market by way of the Employment Equity Act, which aims to achieve fair treatment by eliminating unfair discrimination in employment. A vital measure against discrimination that can be executed to achieve equality in the workplace is the reasonable accommodation duty of employers. This duty constitutes one of the affirmative action measures designed to redress disadvantages in employment experienced by designated groups (identified as black people, women and people with disabilities). While the duty to reasonably accommodate is thus legally recognised, no enforceable legal instrument elaborates on the meaning and scope thereof. Furthermore, the law in respect of applying affirmative action measures is silent on how colour and disability should be understood. Bearing in mind that persons affected by albinism will experience difficulties in demonstrating that they fall within the black or disabled category in order to share the benefits of the designated groups, their entitlement to reasonable accommodation will also be restricted. This article aims to illustrate to what degree South African law currently fails to protect persons with albinism in the workplace and in what way it should be amended in order to serve their needs.

The Right Not To Be Discriminated Against in Employment in Kenya

by | Apr 23, 2023 | ILJ, ILJ V41 I3

The Right Not To Be Discriminated Against in Employment in Kenya

Author Jamil Ddamulira Mujuzi

ISSN: 2413-9874
Affiliations: Professor of Law, Faculty of Law, University of the Western Cape
Source: Industrial Law Journal, Volume 41 Issue 3, 2020, p. 1547 – 1567

Abstract

Section 5(3)(a) of the 2007 Kenyan Employment Act prohibits employers from discriminating against employees on specified grounds. Likewise, article 27(4) of the 2010 Constitution also prohibits discrimination on certain grounds some of which are not included in the Employment Act. Jurisprudence dealing with discrimination matters from the Employment and Labour Relations Court (ELRC) (formerly known as the Industrial Court) indicates the extent to which the court has protected employees’ right to freedom from discrimination. There are cases, however, in which the ELRC has reached debatable conclusions, for example, by holding that the list of grounds under s 5 of the Act is exhaustive. There are also cases in which employees have alleged discrimination by employers where the court has placed more emphasis on the Constitution as opposed to the Employment Act. The author analyses these cases by focusing on the following issues: the definition of discrimination; prohibited grounds of discrimination; permissible discrimination; burden of proof and standard of proof when an employee alleges discrimination; and employers’ accountability for discrimination. Where necessary, the author suggests ways in which the ELRC can better approach the issue of discrimination.

Note: Section 189(1) of the Labour Relations Act 66 of 1995: Irrational, Unreasonable or Neither? Association of Mineworkers & Construction Union & others v Royal Bafokeng Platinum Ltd & others (2020) 41 ILJ 555 (CC)

by | Apr 23, 2023 | ILJ, ILJ V41 I3

Note: Section 189(1) of the Labour Relations Act 66 of 1995: Irrational, Unreasonable or Neither Association of Mineworkers & Construction Union & others v Royal Bafokeng Platinum Ltd & others (2020) 41 ILJ 555 (CC)

Author Rochelle le Roux

ISSN: 2413-9874
Affiliations: Professor, Department of Commercial Law, University of Cape Town
Source: Industrial Law Journal, Volume 41 Issue 3, 2020, p. 1568 – 1587

Abstract

None

The Contested Terrain of Secret Ballots

by | Apr 23, 2023 | ILJ, ILJ V41 I2

The Contested Terrain of Secret Ballots

Authors Emma Fergus & Mario Jacobs

ISSN: 2413-9874
Affiliations: Dr Emma Fergus, Senior Lecturer, Department of Commercial Law, Labour, Development and Governance Research Unit, University of Cape Town; Mario Jacobs, Researcher, Labour, Development and Governance Research Unit, University of Cape Town
Source: Industrial Law Journal, Volume 41 Issue 2, 2020, p. 757 – 778

Abstract

The issue of strike ballots, and particularly secret strike ballots, has a charged and controversial history in South Africa. The Labour Relations Amendment Act 8 of 2018 (LRAA 2018) nonetheless introduced a requirement that the constitutions of all registered unions contain provisions providing for pre-strike ballots which should be both recorded and conducted in secret. As was the case prior to the inception of the LRAA 2018, however, the failure of a union to conduct such a ballot is not a basis on which the legality or protected nature of an ensuing strike may be contested. Despite this, the Labour Court has interpreted the transitional provisions (s 19) of the LRAA 2018 as obliging all unions whose constitutions do not incorporate provisions requiring secret strike ballots to conduct such ballots. Strikes may not proceed until this has been done. In this article, we explore the implications of this approach (read with the Guidelines on Balloting which have been issued by the Minister) both at the practical level and for the right to strike. While the court has held that the obligation to conduct a secret ballot prior to a strike does not limit the right to strike, we disagree. Thus, in line with established principles of statutory interpretation we propose an alternative reading of the transitional provisions, which is better aligned with the purposes of the LRA (and its amendments) and the constitutional rights at stake. To the extent that our interpretation places an undue strain on the language of s 19 of the LRAA 2018, we recommend that a limitations clause analysis be conducted or a higher court reviews the Labour Court’s approach.

Excessive Stress and Eliminating Barriers to Decent Work

by | Apr 23, 2023 | ILJ, ILJ V41 I2

Excessive Stress and Eliminating Barriers to Decent Work

Authors Marika Smuts & Denine Smit

ISSN: 2413-9874
Affiliations: Master of Laws (LLM) graduate, University of the Free State; Associate Professor of Mercantile Law, University of the Free State
Source: Industrial Law Journal, Volume 41 Issue 2, 2020, p. 779 – 803

Abstract

The world of work has changed dramatically across the globe. Increasing demands in the workplace, the emergence of new methods of arranging work and the development of new technologies have brought an escalation in the prevalence of excessive stress and, thus, both physical and mental illness in the workplace. This is exacerbated by rising global economic instability, unemployment and political turbulence. In South Africa, employers are under a legal obligation to take reasonable care of their employees and to safeguard their health and safety in the workplace. This duty extends to employees’ right to a workplace that is, as far as reasonably practicable, free of any hazards and risks which may affect their physical and mental health. Accordingly, employers have a duty to protect employees from the harmful consequences of excessive stress in the workplace. Against a background on the prevalence of excessive stress and its impact on employees, employers and society, this article investigates various ways to mitigate the adverse effects of psychosocial hazards or risks in the workplace as a contributor to the occurrence of excessive workplace stress. Attention is given to the influence of ILO standards on occupational safety and health, and the ILO’s goal of decent work and sustainable development.