Does South African labour legislation provide adequate protection for mental illness in the workplace?

by | Oct 4, 2019 | ILJ, ILJ V39 I3

Does South African labour legislation provide adequate protection for mental illness in the workplace?

Authors L Nxumalo

ISSN: 2413-9874
Affiliations: Attorney
Source: Industrial Law Journal, Volume 39 Issue 3, 2018, p. 1436 – 1452

Abstract

Managing mental illness is one of the challenges encountered by employers in the workplace. As mental illness is unique in nature being largely an invisible disability, employees with such illness, unlike those with visible disabilities, are often not recognised as requiring reasonable accommodation. The critical question is whether South African labour legislation provides adequate protection for employees with mental illness. If not, how are employers managing such employees? This article contends that while disability is generally covered in labour legislation, such legislation does not provide adequate mechanisms for managing mental illness and other disabilities in the workplace, even though the Constitution recognises the need to achieve substantive equality and human dignity for all people with disabilities. Furthermore, arising from the legislative framework, there is an ongoing misperception that disability and incapacity are equivalent concepts, thus disadvantaging employees with mental illness. This article advocates the introduction of specific disability legislation, inclusive of an adequate focus on mental illness. It further recommends specialised training on mental illness for management and the use of specialist psychologists to assist in addressing such illness. Finally, it encourages employers to create a positive working environment with a culture fully inclusive of employees with mental illness.

Enforcement of Labour Court judgments in Zimbabwe: Lessons and perspectives from Southern Africa

by | Oct 4, 2019 | ILJ, ILJ V39 I3

Enforcement of Labour Court judgments in Zimbabwe: Lessons and perspectives from Southern Africa

Authors Tapiwa Givemore Kasuso

ISSN: 2413-9874
Affiliations: Lecturer, Midlands State University, Gweru, Zimbabwe
Source: Industrial Law Journal, Volume 39 Issue 3, 2018, p. 1415 – 1435

Abstract

The Constitution of Zimbabwe establishes a Labour Court with exclusive jurisdiction over an exhaustive list of labour matters. Its purpose is to secure the just, effective, and expeditious resolution of labour disputes. Regrettably, the Labour Court was deprived of the power to enforce its orders, both ad pecuniam solvendam and ad factum praestandum. Labour Court orders ad factum praestandum are not enforceable at all. Only orders sounding in money are able to be registered with the civil courts for enforcement purposes. This procedure for registration and enforcement is complicated, expensive, and a fertile ground for forum shopping. It inhibits the realisation of speedy social justice. The article critically analyses the registration and enforcement procedures of Labour Court orders in Zimbabwe. In so doing, a comparative analysis of the jurisdictions of selected southern African countries is undertaken. It concludes that the panacea for the problems bedevilling Zimbabwe is to clothe the Labour Court with its own enforcement mechanisms.

Misapplying section 252A of the Criminal Procedure Act – the questionable admissibility of evidence obtained through traps and undercover operations in employment matters

by | Oct 4, 2019 | ILJ, ILJ V39 I2

Misapplying section 252A of the Criminal Procedure Act – the questionable admissibility of evidence obtained through traps and undercover operations in employment matters

Authors Jamil Ddamulira Mujuzi

ISSN: 2413-9874
Affiliations: Professor of Law, Faculty of Law, University of the Western Cape
Source: Industrial Law Journal, Volume 39 Issue 2, 2018, p. 749 – 770

Abstract

Section 252A of the Criminal Procedure Act allows law enforcement officers or their agents to use traps or to engage in undercover operations in order to prevent, detect or investigate the commission of an offence. Evidence obtained through such traps or undercover operations is admissible. Since the coming into force of s 252A, South African courts have developed a rich jurisprudence on the issue of traps and undercover operations. Most of this jurisprudence has developed within the context of criminal law. However, since 2000 there has been a consistent trend on the part of the Labour Court, the Commission for Conciliation, Mediation and Arbitration and bargaining councils, to assess the admissibility of evidence obtained through entrapment or undercover operations in employment matters on the basis of s 252A. This article argues that relying on s 252A to assess the admissibility in employment matters of such evidence is questionable. The author recommends that in employment disputes, the admissibility of evidence obtained through traps should be assessed on the basis of the principles that existed before s 252A was enacted and that consideration should be given to the drafting of employment-specific legislation to regulate the process.

Privacy in the workplace

by | Oct 4, 2019 | ILJ, ILJ V39 I2

Privacy in the workplace

Authors Alan Rycroft

ISSN: 2413-9874
Affiliations: Professor, Department of Commercial Law, University of Cape Town
Source: Industrial Law Journal, Volume 39 Issue 2, 2018, p. 725 – 748

Abstract

The legitimacy and fairness of managerial practices which intrude on private actions, thoughts, and opinions are considered through two separate concepts which make up privacy: freedom from intrusion and protection for autonomy. While the Constitutional Court has acknowledged privacy in the truly personal realm, it has stated that as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks accordingly. The extent of this shrinkage is assessed looking at seven issues: (1) medical, alcohol and drug testing, (2) body, bag, locker and office searches, (3) camera surveillance, (4) polygraph testing, (5) freedom of speech and electronic privacy, (6) the privacy of personal data, and (7) appearance regulation. The assessment suggests that in most of these areas of contestation adjudicators have not automatically deferred to managerial prerogative but instead have recognised privacy rights, particularly in the sense of autonomy, to uphold the right to dignity. At the same time there is a recognition that privacy, like all constitutional rights, can be limited if it is reasonable and justifiable to do so, usually where that is in the public interest.

Interdicting protected strikes on account of violence

by | Oct 4, 2019 | ILJ, ILJ V39 I2

Interdicting protected strikes on account of violence

Authors Anton Myburgh SC

ISSN: 2413-9874
Affiliations: Advocate of the High Court of South Africa; Adjunct Professor of Law at Nelson Mandela University
Source: Industrial Law Journal, Volume 39 Issue 2, 2018, p. 703 – 724

Abstract

Strike violence is an abuse of the constitutional right to strike and amounts to collective brutality and economic duress. This article examines the difficult question whether, in the absence of a legislative amendment expressly affording it the power to do so, a protected strike can be interdicted by the Labour Court on account of strike violence. There are two judgments in which the court has indicated a preparedness to grant such an interdict: Tsogo Sun Casinos (Pty) Ltd t/a Montecasino v Future of SA Workers Union & others (2012) 33 ILJ 998 (LC), and National Union of Food Beverage Wine Spirits & Allied Workers & others v Universal Product Network (Pty) Ltd: In re Universal Product Network (Pty) Ltd v National Union of Food Beverage Wine Spirits & Allied Workers & others (2016) 37 ILJ 476 (LC). But a final interdict is yet to be granted on this basis. In order for the court to be empowered to grant such an interdict, the violence must either have caused the strike to lose its protected status or have caused it no longer to qualify as a ‘strike’ as defined in s 213 of the Labour Relations Act 66 of 1995. Arguments in support of both constructions are advanced.

International developments in labour law in the last 20 years

by | Oct 4, 2019 | ILJ, ILJ V39 I2

International developments in labour law in the last 20 years

Authors Manfred Weiss

ISSN: 2413-9874
Affiliations: Professor, Institute for Labour Law, Goethe University, Frankfurt
Source: Industrial Law Journal, Volume 39 Issue 2, 2018, p. 693 – 702

Abstract

Developments in international labour law in the last two decades evince both positive and negative aspects. The ILO declaration of 1998 is an ambiguous innovation. It has raised public attention in respect of core labour rights thus compensating for the low rate of ratification of such rights. But it has also introduced a problematic hierarchy of standards and an ongoing and ever increasing soft law approach. The ILO has finally extended its activities to the informal sector, but has not yet developed a satisfactory policy in this respect. The conflict over the mandate of the ILO might further weaken its already rather inefficient enforcement machinery. The example of global supply chains shows that fragmented and limited regulatory attempts arise only in reaction to shocks (for instance, the Rana Plaza tragedy), and that comprehensive regulation by enforceable hard law is resisted by all the countries whose multinational enterprises (MNEs) profit from the exploitation of workers in developing countries. Soft law instruments prevail. Private actors succeed only to a very limited extent in compensating for the deficiencies in the ILO’s and UN’s regulatory machinery. The MNE codes of conduct have proved to be rather inefficient instruments, mainly used for marketing purposes. More promising are the International Framework Agreements.