The Use of Contractual Recourse in Dismissal Disputes: Settling the Dilemma

by | May 25, 2023 | ILJ, ILJ V43 I4

The Use of Contractual Recourse in Dismissal Disputes: Settling the Dilemma

Author Kamalesh Newaj

ISSN: 2413-9874
Affiliations: Senior Lecturer, Department of Mercantile Law, University of Pretoria
Source: Industrial Law Journal, Volume 43 Issue 4, 2022, p. 2189 – 2218

Abstract

For over twenty years the courts have been grappling with the question whether employees have common law contractual recourse to challenge disputes that stem from their dismissals. There have been two schools of thought. The one promotes the use of both the statutory recourse — the Labour Relations Act (LRA) — and common law contractual recourse on the basis that the LRA has not expressly abolished contractual recourse and the Basic Conditions of Employment Act (BCEA) endorses its use. The other discredits the continued use of contractual recourse on the basis that two parallel systems of law create uncertainty and fail to respect the specialised framework that has been promulgated in the LRA. This has resulted in divergent approaches being advocated by the courts. The conflicting decisions of the Constitutional Court exacerbate the uncertainty. In some cases, the use of the statutory framework has been endorsed, while in the recent Constitutional Court decision of Baloyi v Public Protector & others a different approach was followed. This article seeks to analyse the development of the law on the permissibility of contractual recourse in disputes stemming from dismissal that has now culminated in the decision of Baloyi.

Note: Preferential Procurement Paused by the Constitutional Court: Reflections on B-BBEE Policies and Minister of Finance v Afribusiness NPC 2022 (4) SA 362 (CC)

by | May 25, 2023 | ILJ, ILJ V43 I4

Note: Preferential Procurement Paused by the Constitutional Court: Reflections on B-BBEE Policies and Minister of Finance v Afribusiness NPC 2022 (4) SA 362 (CC)

Authors Stefan van Eck & Thiruneson Padayachy

ISSN: 2413-9874
Affiliations: Professor of Labour Law, Department of Mercantile Law, University of Pretoria, South Africa; Lecturer, Department of Mercantile Law, University of Pretoria, South Africa
Source: Industrial Law Journal, Volume 43 Issue 4, 2022, p. 2219 – 2236

Abstract

In Minister of Finance v Afribusiness NPC 2022 (4) SA 362 (CC), [2022] ZACC 4 (Afribusiness (CC)) the Constitutional Court confirmed the setting aside of the Preferential Procurement Regulations, 2017 (the 2017 regulations). This decision temporarily halted the processes in the public service before they were restarted after a follow-up decision by the same court in Minister of Finance v Sakeliga NPC (previously known as Afribusiness NPC) and Others 2022 (4) SA 401 (CC), [2022] ZACC 17. In a closely split decision, the Constitutional Court judges in Afribusiness (CC) adopted two different approaches. The authors argue that the majority in Afribusiness (CC) adopted a technically correct approach in reaching its decision. However, they opine that the decision is yet another indication of the disjointed nature of South Africa’s broad-based black economic empowerment (B-BBEE) policies. The contribution also highlights a number of structural shortcomings that are inherent in legislation that seeks to give effect to the idealistic goals of economic transformation in the country. In their conclusion, the authors reflect on the way forward and raise unanswered questions that may still need to be addressed to enhance the effective and appropriate implementation of economic adjustment in the country.

Note: Private Acts in Public Spaces: The Impact of Social Media on the Workplace and the Business of the Employer

by | May 25, 2023 | ILJ, ILJ V43 I4

Note: Private Acts in Public Spaces: The Impact of Social Media on the Workplace and the Business of the Employer

Author Simphiwe Phungula

ISSN: 2413-9874
Affiliations: Senior Lecturer, Department of Commercial Law, University of Cape Town
Source: Industrial Law Journal, Volume 43 Issue 4, 2022, p. 2237 – 2250

Abstract

Social media in the workplace directly affects the employer-employee relationship. While employees have rights to privacy and freedom of expression, their social media misconduct both on and off duty has been sanctioned by dismissal or suspension, especially where the conduct impacts adversely on an employer’s business. Such misconduct may extend to former employees and independent contractors, and includes third-party posts. Public pressure via social media commentary poses a particular challenge for employers dealing with social media misconduct. This note critically analyses social media pressure, and the factors which an employer should consider in order to ensure a fair outcome when sanctioning an employee or others closely associated with its business for such misconduct.

Labour Dispute Resolution: Jurisdictional Potholes, Pitfalls and Dongas: Reflecting on Recent Jurisprudence

by | May 25, 2023 | ILJ, ILJ V43 I3

Labour Dispute Resolution: Jurisdictional Potholes, Pitfalls and Dongas: Reflecting on Recent Jurisprudence

Authors Rochelle le Roux & Peter le Roux

ISSN: 2413-9874
Affiliations: Professor, Faculty of Law, University of Cape Town; Executive Consultant at ENSafrica
Source: Industrial Law Journal, Volume 43 Issue 3, 2022, p. 1443 – 1472

Abstract

Jurisdiction refers to the ‘power’ or competence of a court (or other dispute resolution fora) to hear and determine a matter. In the case of labour dispute resolution, the observance of prior procedures, the causes of action pleaded, the characterisation of (and reasons for) disputes, the observance of time periods, the completion of formalities, and the existence of certain pre-determined events or conditions, might all be relevant when determining jurisdiction. While it has been held that unlawful dismissals (as opposed to unfair dismissals) cannot be pursued under the Labour Relations Act 66 of 1995 (LRA), the binary divide between unlawfulness and unfairness continues to be challenged at labour dispute resolution fora. With the help of eleven narratives, each focusing on a particular jurisdictional issue and prefaced by a key question and/or statement, this article considers the jurisprudence of the last five years or so that has either added to, or settled, some of these jurisdictional challenges in labour dispute resolution. Among others, the article also addresses the fallacy that the Labour Court has jurisdiction over all disputes that arise in the context of an employment relationship and considers the extent to which disputes based on unlawfulness can be pursued in terms of the LRA.

Pregnancy and Marital Status Discrimination

by | May 25, 2023 | ILJ, ILJ V43 I3

Pregnancy and Marital Status Discrimination

Authors Marius van Staden & Amanda Boniface

ISSN: 2413-9874
Affiliations: Associate Professor, Department of Public Law, University of Johannesburg; Associate Professor, Department of Private Law, University of Johannesburg
Source: Industrial Law Journal, Volume 43 Issue 3, 2022, p. 1473 – 1498

Abstract

Despite constitutional and legislative protections against unfair pregnancy and marital discrimination, it is argued that in practice these grounds have not yet developed into fully-fledged grounds of discrimination. Rather, they are often determined with reference to factors such as sex and gender. This phenomenon continues to perpetuate sex and gender stereotypes. With recourse to comparative examples, the article critically considers the legal mechanisms that South Africa has implemented to address these forms of discrimination. It is argued that aspects of the legal provisions enacted to prohibit the above forms of discrimination have the consequence of maintaining sex and gender stereotypes, fostering discrimination against (mainly) women in the workplace, men at home, and homosexual and transgender people’s parenting ambitions. The article makes several recommendations for law reform that move beyond a legislative framework centred around sex and gender in order to protect such persons from discrimination based on pregnancy and marital status. It argues that pregnant women should be granted more freedom to plan and structure their maternity leave and that they should be able to transfer a portion of their maternity leave to their partners. Parental, adoption and surrogacy leave should be extended, and pregnancy and marital status discrimination protection should be extended to men, homosexual partners and transgender persons. Legal fragmentation and the exclusion of informal and atypical workers from current protection should also be addressed.

The Seychelles Employment Tribunal and its Application and Interpretation of the Grievance Procedure Provisions under the Employment Act:

by | May 25, 2023 | ILJ, ILJ V43 I3

The Seychelles Employment Tribunal and its Application and Interpretation of the Grievance Procedure Provisions under the Employment Act

Author Jamil Ddamulira Mujuzi

ISSN: 2413-9874
Affiliations: Professor, Faculty of Law, University of the Western Cape
Source: Industrial Law Journal, Volume 43 Issue 3, 2022, p. 1499 – 1521

Abstract

In 2008 the Seychelles Employment Act of 1995 was amended by the Employment (Amendment) Act (2008), inter alia, to establish the Employment Tribunal. Between 3 December 2008 and 1 December 2021, the tribunal received 2,478 civil cases and 172 criminal cases. The author examined 648 files for the years from 2012-2021 to assess how the tribunal has applied or interpreted the Employment Act to deal with grievances between workers and employers and focuses primarily on dismissal and disciplinary issues short of dismissal. The article highlights certain shortcomings in the procedures and practice of the tribunal, and suggests amendments for their resolution. Inter alia, it argues that where one of the parties fails to appear before a competent officer for mediation, the officer should not issue a certificate to the effect that mediation was unsuccessful. Furthermore, the tribunal’s approach of treating criminal matters as civil ones could be encouraging some employers to terminate contracts of employment unjustifiably; and, in addition, the tribunal should be clear on who has the burden to prove termination of employment in cases where the termination is contentious. Since many respondents refuse or fail to appear before a competent officer for mediation and there is case law from the Supreme Court suggesting that mediation is not mandatory, the Act may have to be amended to make mediation mandatory before a complaint is taken to the tribunal.