The unfair labour practice relating to benefits
- Authors: Timothy, Andrea Francis
- Date: 2015
- Subjects: Unfair labor practices -- South Africa , Employee fringe benefits -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10259 , http://hdl.handle.net/10948/d1021157
- Description: The meaning of the term “benefits” in the context of unfair labour practice jurisprudence, having previously been unsettled for more than a decade, has now been settled by the Labour Appeal Court in the Apollo.1 Prior to Apollo,2 our courts have struggled to adopt a stance to maintain the distinction between disputes of rights and disputes of interest as separate compartments. The prevalent view at that stage was that, in order for an employee to lodge a dispute at the CCMA or Bargaining Council the employee would have to show that he or she had a right to the benefit that arises by virtue of contract, statute or collective agreement, failing which the CCMA or a Bargaining Council would not have the jurisdiction to determine the dispute, in which case it may constitute a dispute of interest and the employee will have to embark on an industrial action to secure a benefit. Apollo3 endorsed a previous decision of the Labour Court,4 i.e. by placing “benefits” into the following two categories: (1) Where the dispute is about a demand by employees concerning their benefits, it can be settled by way of industrial action. (2) Where the dispute concerns the fairness of the employer's conduct, it must be settled by way of adjudication or arbitration. As a result of the above categorisation, the CCMA or Bargaining Council may adjudicate a dispute relating to benefits where there is a pre-existing benefit and the employer refuses to comply with its obligation towards the employer in that regard. It may also adjudicate disputes relating to the provision of a car allowance (i.e. where the employer retains the discretion to grant or withhold the allowance) and disputes relating to the provision of bonuses (i.e. where the employer retains the discretion to grant or withhold the bonus). In this treatise, I set out the history and development of the legislation in relation to the concept of “benefits” (in the context of unfair labour practice) so as to understand how our Labour Appeal Court has now come to settle the issues above.
- Full Text:
- Date Issued: 2015
- Authors: Timothy, Andrea Francis
- Date: 2015
- Subjects: Unfair labor practices -- South Africa , Employee fringe benefits -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10259 , http://hdl.handle.net/10948/d1021157
- Description: The meaning of the term “benefits” in the context of unfair labour practice jurisprudence, having previously been unsettled for more than a decade, has now been settled by the Labour Appeal Court in the Apollo.1 Prior to Apollo,2 our courts have struggled to adopt a stance to maintain the distinction between disputes of rights and disputes of interest as separate compartments. The prevalent view at that stage was that, in order for an employee to lodge a dispute at the CCMA or Bargaining Council the employee would have to show that he or she had a right to the benefit that arises by virtue of contract, statute or collective agreement, failing which the CCMA or a Bargaining Council would not have the jurisdiction to determine the dispute, in which case it may constitute a dispute of interest and the employee will have to embark on an industrial action to secure a benefit. Apollo3 endorsed a previous decision of the Labour Court,4 i.e. by placing “benefits” into the following two categories: (1) Where the dispute is about a demand by employees concerning their benefits, it can be settled by way of industrial action. (2) Where the dispute concerns the fairness of the employer's conduct, it must be settled by way of adjudication or arbitration. As a result of the above categorisation, the CCMA or Bargaining Council may adjudicate a dispute relating to benefits where there is a pre-existing benefit and the employer refuses to comply with its obligation towards the employer in that regard. It may also adjudicate disputes relating to the provision of a car allowance (i.e. where the employer retains the discretion to grant or withhold the allowance) and disputes relating to the provision of bonuses (i.e. where the employer retains the discretion to grant or withhold the bonus). In this treatise, I set out the history and development of the legislation in relation to the concept of “benefits” (in the context of unfair labour practice) so as to understand how our Labour Appeal Court has now come to settle the issues above.
- Full Text:
- Date Issued: 2015
The best interests of the child witness in disciplinary cases of educators
- Authors: Seshibe, Maropene Viniel
- Date: 2014
- Subjects: Child witnesses -- South Africa , Child sexual abuse -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10257 , http://hdl.handle.net/10948/d1021058
- Description: The South African Constitution provides that a child’s best interests are of paramount importance in every matter concerning the child. This principle emanates from the United Nations Declaration on the Rights of the Child (UNCRC) and the African Charter on the Rights and Welfare of the Child (ACRWC). Accordingly the State and its various departments have adopted and are enforcing legislation and policies in defence of the child’s best interest. The principle of the best interest of the child is seldom observed in most of our schools. Incidents of child abuse are on the increase, especially by educators. This unfortunate situation prevails against the backdrop of legislation which condemns these atrocities. Section 17 of the Employment of Educators Act1 provides that educators must be discharged if they are found guilty of, inter alia, sexual abuse, intimate relationship with a learner and assault with grievous bodily harm. These measures have been taken to combat the vicious cycle of child abuse in schools and to advance children’s-rights agenda and the universal principle of the child’s best interests. For the department to successfully prosecute educator cases against child abuse, the testimony of a child witness is crucial. However, it is shocking to discover that the interests of the child witness are not always served in these disciplinary hearings. Officials are prone to be biased towards their fellow professionals at the expense of the interest of the child witness. This situation normally arises probably as a result of a lack of professional capacity because most of these officials tasked with disciplining educators have a teaching, human-resource or legal qualification. Others may have been recruited from the ranks of the trade-union movement without any formal qualification. Secondly, they may be specialists in the field of labour law which is essentially concerned with the regulating the employer and employee relationship. Thirdly, the disciplinary code and procedures that are used during educator-disciplinary processes are premised on the principles and values of the Labour 1 Act 76 of 1998. Relations Act Code of Good Practice: Dismissal2 and Schedule 2 of the Employment of Educators Act3 which addresses the interest of the child witness to a very limited extend. Finally, the policies regulating workplace discipline are generally biased towards employee rights as espoused in the Labour Relations Act4 and CCMA guidelines on misconduct arbitrations. This study has identified a number of challenges confronting the child witness and also areas of capacity improvement on the side of officials officiating over the disciplinary cases of educators. These challenges form the basis for a comprehensive and consolidated list of aspects in which officials need to be trained to effectively promote and defend the interest of the child witness in a professional manner. The role of the departmental representative in becoming the champions of the democratic Constitution and the vanguard of the child’s best interest cannot be over-emphasised. The question of how best to serve the best interest of the child witness has been addressed. The child witness can be a credible witness provided officials win over his or her confidence to speak out against abuse. The 16 days of activism against women and children abuse has to resonate consciously with departmental officials.
- Full Text:
- Date Issued: 2014
- Authors: Seshibe, Maropene Viniel
- Date: 2014
- Subjects: Child witnesses -- South Africa , Child sexual abuse -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10257 , http://hdl.handle.net/10948/d1021058
- Description: The South African Constitution provides that a child’s best interests are of paramount importance in every matter concerning the child. This principle emanates from the United Nations Declaration on the Rights of the Child (UNCRC) and the African Charter on the Rights and Welfare of the Child (ACRWC). Accordingly the State and its various departments have adopted and are enforcing legislation and policies in defence of the child’s best interest. The principle of the best interest of the child is seldom observed in most of our schools. Incidents of child abuse are on the increase, especially by educators. This unfortunate situation prevails against the backdrop of legislation which condemns these atrocities. Section 17 of the Employment of Educators Act1 provides that educators must be discharged if they are found guilty of, inter alia, sexual abuse, intimate relationship with a learner and assault with grievous bodily harm. These measures have been taken to combat the vicious cycle of child abuse in schools and to advance children’s-rights agenda and the universal principle of the child’s best interests. For the department to successfully prosecute educator cases against child abuse, the testimony of a child witness is crucial. However, it is shocking to discover that the interests of the child witness are not always served in these disciplinary hearings. Officials are prone to be biased towards their fellow professionals at the expense of the interest of the child witness. This situation normally arises probably as a result of a lack of professional capacity because most of these officials tasked with disciplining educators have a teaching, human-resource or legal qualification. Others may have been recruited from the ranks of the trade-union movement without any formal qualification. Secondly, they may be specialists in the field of labour law which is essentially concerned with the regulating the employer and employee relationship. Thirdly, the disciplinary code and procedures that are used during educator-disciplinary processes are premised on the principles and values of the Labour 1 Act 76 of 1998. Relations Act Code of Good Practice: Dismissal2 and Schedule 2 of the Employment of Educators Act3 which addresses the interest of the child witness to a very limited extend. Finally, the policies regulating workplace discipline are generally biased towards employee rights as espoused in the Labour Relations Act4 and CCMA guidelines on misconduct arbitrations. This study has identified a number of challenges confronting the child witness and also areas of capacity improvement on the side of officials officiating over the disciplinary cases of educators. These challenges form the basis for a comprehensive and consolidated list of aspects in which officials need to be trained to effectively promote and defend the interest of the child witness in a professional manner. The role of the departmental representative in becoming the champions of the democratic Constitution and the vanguard of the child’s best interest cannot be over-emphasised. The question of how best to serve the best interest of the child witness has been addressed. The child witness can be a credible witness provided officials win over his or her confidence to speak out against abuse. The 16 days of activism against women and children abuse has to resonate consciously with departmental officials.
- Full Text:
- Date Issued: 2014
De-scribing the Timaeus: a transgression of the (phal) logocentric convention that discourse has only one form, language
- Authors: Ord, Jennifer
- Date: 2002
- Subjects: Discourse analysis , Art -- Philosophy
- Language: English
- Type: Thesis , Masters , MTech (Fine Art)
- Identifier: vital:10763 , http://hdl.handle.net/10948/115 , Discourse analysis , Art -- Philosophy
- Description: Like writing, art making is primarily a means of human expression, a means of communication – both “allow us to categorize our (inner and outer) environment as represented by symbols” (Appignanesi, 1999: 7). Yet it is language in the traditional Western garb of rational, philosophical discourse that has been perceived as the primary means of manifesting knowledge and positing truth, not only regarding the character of human existence, but also the nature of art. This infers the acceptance of both works as literally “truth of things”, and of “a language of reason” that “perfectly represents the real world” (Appignanesi, 1999: 77). Going against the grain of this traditional bias, Jacques Derrida holds that, firstly, “human knowledge is not as controllable or as cogent as Western thinkers would have it”: secondly, that language functions in “subtle and often contradictory ways” thus rendering certainty, truth, and perfect representation ever elusive to us (Lye, 1997: 2); and, thirdly, that “practices of interpretation which include art but are not limited to language, are extended discourses” (Appignanesi, 1999: 79). So, the “work of reason” (or rationalism) in this sense, is no longer the definitive “voice” of authority when it comes to ascribing meaning, proclaiming a message, defining truth, etc. Having the grip of its authority loosened and thus its rigid, imposing borders opened up, the communication of knowledge as a form of “aesthetic fiction” (Megill, 1987: 265) is allowed entry into the rarefied field of philosophical discourse. Moreover, if visual art (one such “aesthetic fiction”) is a process of sign-making, as is written and spoken language; if it therefore constitutes a signifying system, as does written and spoken language (Bal and Bryson in Preziosi, 1998: 242); and, if art is not just about autonomous, in-house formalism, then can it not, in any case, validly offer a form for discourse, albeit a different kind of discourse, a discourse that is not “truth seeking” (Sim, 1992: 33)? Here, the maker of the proposed artwork-asdiscourse would not be attempting to establish the truth or falsity of a philosophical position, but, as Derrida would have it, create a form which, without mimicry, would evocatively allude to Plato, his “deconstructor” and the maker of the proposed artwork. Discourse in this sense, then, would generate “active interpretation… infinite free association” (Megill, 1987: 283), because, as in Derrida’s writing, interpretation no longer aims at “the reconciliation or unification of warring truths (Sim, 1992: 10); in other words, it breaks with the (phal)logocentric tradition of discourse as dialectical and becomes questioning without closure. For visual art to enter the exalted arena of philosophical discourse, it cannot be selfreflexive in the Greenbergian or formalist sense – it has to be about something philosophical and this ‘something’ will be a deconstructive response to Plato’s doctrine of the two worlds in the Timaeus. What I propose presenting, then, is an imagographic rather than (phal)logocentric exposition of philosophical content where the aim is not to shape a certainty or to infer an absolute presence or essence of anything, but rather to suggest traces of the maker of the artwork reading Derrida, reading Plato. The proposed artwork as a response to texts will thus be a “pre-text” of my own endeavour.
- Full Text:
- Date Issued: 2002
- Authors: Ord, Jennifer
- Date: 2002
- Subjects: Discourse analysis , Art -- Philosophy
- Language: English
- Type: Thesis , Masters , MTech (Fine Art)
- Identifier: vital:10763 , http://hdl.handle.net/10948/115 , Discourse analysis , Art -- Philosophy
- Description: Like writing, art making is primarily a means of human expression, a means of communication – both “allow us to categorize our (inner and outer) environment as represented by symbols” (Appignanesi, 1999: 7). Yet it is language in the traditional Western garb of rational, philosophical discourse that has been perceived as the primary means of manifesting knowledge and positing truth, not only regarding the character of human existence, but also the nature of art. This infers the acceptance of both works as literally “truth of things”, and of “a language of reason” that “perfectly represents the real world” (Appignanesi, 1999: 77). Going against the grain of this traditional bias, Jacques Derrida holds that, firstly, “human knowledge is not as controllable or as cogent as Western thinkers would have it”: secondly, that language functions in “subtle and often contradictory ways” thus rendering certainty, truth, and perfect representation ever elusive to us (Lye, 1997: 2); and, thirdly, that “practices of interpretation which include art but are not limited to language, are extended discourses” (Appignanesi, 1999: 79). So, the “work of reason” (or rationalism) in this sense, is no longer the definitive “voice” of authority when it comes to ascribing meaning, proclaiming a message, defining truth, etc. Having the grip of its authority loosened and thus its rigid, imposing borders opened up, the communication of knowledge as a form of “aesthetic fiction” (Megill, 1987: 265) is allowed entry into the rarefied field of philosophical discourse. Moreover, if visual art (one such “aesthetic fiction”) is a process of sign-making, as is written and spoken language; if it therefore constitutes a signifying system, as does written and spoken language (Bal and Bryson in Preziosi, 1998: 242); and, if art is not just about autonomous, in-house formalism, then can it not, in any case, validly offer a form for discourse, albeit a different kind of discourse, a discourse that is not “truth seeking” (Sim, 1992: 33)? Here, the maker of the proposed artwork-asdiscourse would not be attempting to establish the truth or falsity of a philosophical position, but, as Derrida would have it, create a form which, without mimicry, would evocatively allude to Plato, his “deconstructor” and the maker of the proposed artwork. Discourse in this sense, then, would generate “active interpretation… infinite free association” (Megill, 1987: 283), because, as in Derrida’s writing, interpretation no longer aims at “the reconciliation or unification of warring truths (Sim, 1992: 10); in other words, it breaks with the (phal)logocentric tradition of discourse as dialectical and becomes questioning without closure. For visual art to enter the exalted arena of philosophical discourse, it cannot be selfreflexive in the Greenbergian or formalist sense – it has to be about something philosophical and this ‘something’ will be a deconstructive response to Plato’s doctrine of the two worlds in the Timaeus. What I propose presenting, then, is an imagographic rather than (phal)logocentric exposition of philosophical content where the aim is not to shape a certainty or to infer an absolute presence or essence of anything, but rather to suggest traces of the maker of the artwork reading Derrida, reading Plato. The proposed artwork as a response to texts will thus be a “pre-text” of my own endeavour.
- Full Text:
- Date Issued: 2002
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