Case Note: Wrongful suspension as a ground for delictual damages – Weitz v Goodyear SA (Pty) Ltd & others (2014) 35 ILJ 441 (ECP)

by | Oct 6, 2019 | ILJ, ILJ V36 I1

Case Note: Wrongful suspension as a ground for delictual damages – Weitz v Goodyear SA (Pty) Ltd & others (2014) 35 ILJ 441 (ECP)

Authors Andre Mukheibir, Thanduxolo Qotoyi

ISSN: 2413-9874
Affiliations: Associate Professor in Law, Nelson Mandela Metropolitan University; Lecturer in Law, Nelson Mandela Metropolitan University
Source: Industrial Law Journal, Volume 36 Issue 1, 2015, p. 70 – 79

Abstract

None

Towards unity – reconciling fairness and rationality in affirmative action disputes

by | Oct 6, 2019 | ILJ, ILJ V36 I1

Towards unity – reconciling fairness and rationality in affirmative action disputes

Authors Emma Fergus

ISSN: 2413-9874
Affiliations: Lecturer, Commercial Law Department, Institute of Development and Labour Law, University of Cape Town
Source: Industrial Law Journal, Volume 36 Issue 1, 2015, p. 40 – 69

Abstract

This article considers the standard applicable in assessing employers’ affirmative action (AA) measures in unfair discrimination disputes. It necessarily begins with an overview of the Constitutional Court’s decision in SA Police Service v Solidarity obo Barnard handed down in September 2014. As the judges did not agree on the appropriate standard of scrutiny for AA, however, that standard remains uncertain. Recent amendments to the Employment Equity Act 55 of 1998 will likely compound this uncertainty. In an attempt at clarifying the position, this article considers Barnard with reference to both the constitutional provisions governing restitutive measures and those provided for in the EEA. From these, an argument is made that — provided it is suitably applied — the test set out by the Constitutional Court in Minister of Finance & another v Van Heerden for assessing restitutive measures in general is well suited to the employment context. Should that test be applied to workplace AA going forward, it will ensure compliance with both relevant constitutional and statutory provisions and international law.

The role of trade unions and employees in South Africa’s business rescue proceedings

by | Oct 6, 2019 | ILJ, ILJ V36 I1

The role of trade unions and employees in South Africa’s business rescue proceedings

Authors Anneli Loubser, Tronel Joubert

ISSN: 2413-9874
Affiliations: Professor, Department of Mercantile Law, University of South Africa; Lecturer, Department of Mercantile Law, University of Pretoria
Source: Industrial Law Journal, Volume 36 Issue 1, 2015, p. 21 – 39

Abstract

Employees and the registered trade unions representing them have been given a prominent role in the new business rescue proceedings introduced by the Companies Act of 2008. The inclusion of registered trade unions and non-unionised individual employees in the definition of ‘affected persons’ recognises the fact that employees are directly affected by the failure and subsequent liquidation of a company or close corporation, and grants them the same rights as creditors and shareholders to be notified of all developments and to participate in the business rescue proceedings in various ways. These rights are in addition to the special and extensive rights given to them in their capacity as employees, and the rights they may have as creditors of the company for remuneration and other amounts relating to their employment. It remains to be seen to what extent the trade unions in particular will use these rights to the advantage of their members.

Strikes and the amendments to the LRA

by | Oct 6, 2019 | ILJ, ILJ V36 I1

Strikes and the amendments to the LRA

Authors Alan Rycroft

ISSN: 2413-9874
Affiliations: Professor, Faculty of Law, University of Cape Town
Source: Industrial Law Journal, Volume 36 Issue 1, 2015, p. 1 – 20

Abstract

This article considers the extent to which the 2014 amendments to the LRA impact on the present law of strikes. Tracing the evolution of the Bill and final Act, the article considers key sections deleted in the process, and comments on the declining role of NEDLAC as a pivotal agency for finalising labour legislation in a consensual manner. Various versions of the Bill empowered the CCMA and Labour Court to suspend a strike in certain circumstances; this third-party intervention has been removed. The benign provision requiring a pre-strike ballot was likewise removed and the article comments on the historical reasons for the aversion of COSATU to strike ballots. Changes to sections on picketing are described. The article, after commenting on the potential for compulsory arbitration, looks at the missed opportunities for meaningful changes but recognises, in Von Holdt’s words, ‘where the underlying social order is unsettled or contested, institutionalisation [of strike law] is likely to remain partial and precarious’.

Note: Is evidence of the breakdown in the trust relationship always necessary? Woolworths (Pty) Ltd v Mabija & others (2016) 37 ILJ 1380 (LAC)

by | Oct 6, 2019 | ILJ, ILJ V37 I4

Note: Is evidence of the breakdown in the trust relationship always necessary? Woolworths (Pty) Ltd v Mabija & others (2016) 37 ILJ 1380 (LAC)

Authors Alan Rycroft

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

Abstract

None

Disciplinary sanctions in the alternative

by | Oct 6, 2019 | ILJ, ILJ V37 I4

Disciplinary sanctions in the alternative

Authors Kershwyn Bassuday

ISSN: 2413-9874
Affiliations: Lecturer, Commercial Law Department, University of Cape Town
Source: Industrial Law Journal, Volume 37 Issue 4, 2016, p. 2251 – 2259

Abstract

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.