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.

Obstacles and Opportunities for Labour Dispute Resolution Using Videoconferencing Technology

by | Jun 15, 2024 | ILJ, ILJ V45 I2

Obstacles and Opportunities for Labour Dispute Resolution Using Videoconferencing Technology

Authors Nicci Whitear-Nel & Cecile de Villiers

ISSN: 2413-9874
Affiliations: Senior Lecturer, University of KwaZulu-Natal; Postdoctoral Fellow in Law, Stellenbosch University
Source: Industrial Law Journal, Volume 45 Issue 2, 2024, p. 663 – 691
https://doi.org/10.47348/ILJ/v45/i2a1

Abstract

While labour dispute resolution processes are typically conducted in person, rapid advances in technology coupled with the need for speedy, fair and accessible dispute resolution encourages the use of videoconferencing technology in such processes. This article considers the use of videoconferencing in dispute resolution processes by the Commission for Conciliation, Mediation and Arbitration (CCMA) and the Education Labour Relations Council (ELRC), a bargaining council operating in the public basic education sector. Although its use was primarily in response to the Covid-19 pandemic, the success of remote hearings has sparked a willingness to incorporate this approach permanently. We identify three advantages occasioned by the flexibility of remote processes. Firstly, hearings may be fully remote or in a hybrid format, increasing available options. Secondly, remote processes offer vulnerable witnesses greater protection and may increase the witness participation rate. Thirdly, they remove many logistical challenges associated with in-person processes and may reduce the number of postponements. Remote processes are, however, not without obstacles. We explore a number of objections to such processes, which are broadly divided into objections related to infrastructure (the digital divide, technological failures, power supply) and those related to procedural and testimonial integrity (the impact of remote processes on formality, representatives, interpreters and intermediaries, data privacy, document management and issues related to witness testimony). Although these are real obstacles to effective remote processes, we argue that the problems are not insurmountable and that remote labour dispute resolution holds benefits for both the CCMA (and bargaining councils) as well as its users.

‘Numerical Targets’ or ‘Quotas’? The Draft Employment Equity Regulations 2023 in Perspective

by | Jun 15, 2024 | ILJ, ILJ V45 I2

‘Numerical Targets’ or ‘Quotas’? The Draft Employment Equity Regulations 2023 in Perspective

Author Davy Rammila

ISSN: 2413-9874
Affiliations: Senior Lecturer, University of South Africa; LLB LLM cum laude (University of Johannesburg); LLD Candidate (University of Johannesburg)
Source: Industrial Law Journal, Volume 45 Issue 2, 2024, p. 692 – 719
https://doi.org/10.47348/ILJ/v45/i2a2

Abstract

The 2022 amendments to the Employment Equity Act (EEA) introduced s 15A which empowers the Minister of Employment and Labour to adopt regulations determining sector-specific numerical targets to be taken into account by designated employers in implementing their employment equity plans. Through these regulations, the Minister is able to influence directly the contents of employers’ affirmative action measures. Empowered thereby, the Minister published the Draft Employment Equity Regulations, 2023 that have drawn the ire of certain sections of the public who claim that the draft’s numerical targets are tantamount to quotas operating against certain racial groups. This contribution investigates the validity of the draft regulations within the framework of the EEA and the Constitution. It notes that although the regulations are poorly drafted, the numerical targets are justifiably based on regional demographics and are generally not in violation of the Act. Furthermore, it argues that the numerical targets are designed as affirmative action allocations which the Minister has designated, within each sector, to be subject to his determinations. Ultimately, it concludes that a violation of these instruments occurs only in circumstances involving ‘skilled’ occupational levels for which the Minister appears to impose targets covering all available occupations with no room for the employer’s discretion.

Rethinking Fair Processes for Dealing with Poor Conduct in the Workplace

by | Jun 15, 2024 | ILJ, ILJ V45 I2

Rethinking Fair Processes for Dealing with Poor Conduct in the Workplace

Authors Chris Todd & Nikita Reddy

ISSN: 2413-9874
Affiliations: Partner, Bowmans; Business Partner, Ninety One, formerly Senior Associate, Bowmans
Source: Industrial Law Journal, Volume 45 Issue 2, 2024, p. 720 – 738
https://doi.org/10.47348/ILJ/v45/i2a3

Abstract

Nearly three decades after the legislature enacted the 1995 Labour Relations Act with its accompanying Code of Good Practice: Dismissal, and two decades after the Labour Court made it clear, in Avril Elizabeth, that a formal enquiry is not a necessary element of fair procedure before dismissal, formal adversarial criminal justice style disciplinary processes continue to be regarded as the norm in many workplaces.
This article explores why this is so. It considers whether formal adversarial processes are fairer to employees than informal ones (it concludes that they are not). It identifies challenges with formal processes in the workplace against criteria of efficiency, authority and fairness, and revisits the basic purpose of workplace discipline and the principles that apply.
Finally it puts forward some practical suggestions on an inquisitorial investigation process for dealing with workplace discipline that the authors believe is more appropriate and fair (to both employers and employees) and is better suited to most modern workplaces. It concludes that less formal investigation and decision-making processes of this kind are more efficient for employers, preserve workplace relations, and are ultimately better for employees than their adversarial counterparts.

A Delicate Balancing Act: Does the Majoritarianism Approach in South African Labour Law Infringe the Right to Freedom of Association?

by | Jun 15, 2024 | ILJ, ILJ V45 I2

A Delicate Balancing Act: Does the Majoritarianism Approach in South African Labour Law Infringe the Right to Freedom of Association?

Author Phatelang William Senoamadi

ISSN: 2413-9874
Affiliations: Senior Lecturer, Graduate School of Business Leadership (Unisa); BA, MA (Wits); LLB, MBL (Unisa); PhD (UJ)
Source: Industrial Law Journal, Volume 45 Issue 2, 2024, p. 739 – 757
https://doi.org/10.47348/ILJ/v45/i2a4

Abstract

The article investigates freedom of association rights for trade unions in the context of the majoritarian approach contained in the Labour Relations Act 66 of 1995. It reveals that even in the context of majoritarianism, the labour courts and the Constitutional Court have asserted and indeed protected freedom of association rights by interpreting the law to support the granting of certain organisational rights to minority unions. This notwithstanding, the courts’ approach does not automatically translate into the right to bargain on matters of mutual interest. Furthermore, it is acceptable through ministerial determinations to extend collective agreements reached with the majority union to members of the minority union to a point where the minority union would be precluded from embarking on a strike action on issues that are dealt with in the applicable collective agreement. The article concludes that our courts have by and large succeeded in performing a delicate balancing of the competing notion of majoritarianism and the right to freedom of association.