Termination of the employment contract due to ill-health in the public education sector
- Authors: Hlekani, Mphakamisi Witness
- Date: 2014
- Subjects: Employees -- Dismissal of , Collective labor agreements -- Education
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10256 , http://hdl.handle.net/10948/d1020969
- Description: The subject of the present treatise concerns termination of employment contracts that are effected as a result of an employee’s incapacity on the grounds of ill-health or injury. Every employee has the right not to be dismissed unfairly. The Labour Relations Act, 1995 recognises three grounds on which termination of employment might be legitimate. These include the conduct of the employee, the capacity of the employee and the operational requirements of the employer’s business. However, fundamental to any contract of employment is the obligation that rests on an employee not to be absent from work without justification. The Incapacity Code and Procedure in respect of Ill-health or Injury applicable to Educators is contained in Schedule 1 to the Employment of Educators Act, 1998. In addition there are collective agreements which are the products of collective bargaining that are also applicable to all categories of employees employed in the public education sector. Notably, PSCBC Resolution 7 of 2000 forms part of the subject of our discussion. The Department of Education determined the use of independent Health-risk Managers to provide advice on the management of incapacity leave and ill-health retirement, thereby ensuring objective and impartial evaluation which are largely acceptable to employees and their labour representatives. This is the Policy and Procedure on Incapacity Leave and Ill-Health Retirement in the Public Service. The appointed Health-risk Managers make recommendations to the Head of Department who thereafter implement the recommendations and deal with issues of a case to absolute finality. More importantly, the Policy and Procedure for incapacity leave and ill-health retirement in the Public Service is issued in terms of legislation, that is, section 3(3) of the Public Service Act, 1994 and therefore is not a collective agreement. Under the circumstances, it is not always easy to determine a real dispute and an issue in dispute. Because of this uncertainty arbitrators often found that bargaining councils have no jurisdiction to entertain these disputes, while on the other hand some arbitrators opined that bargaining councils do have jurisdiction In this treatise the general principles of the employment contract, the legislative framework applicable in the public education sector in determining an application for temporary incapacity leave and ill-health retirement and procedural and substantive issues in the termination of employment contract due to ill-health are considered and explained. The legal questions around the issue of discretion exercised by the Head of Department in granting or declining applications for ill-health are also examined. The primary aim of the treatise is to provide a clear exposition of the rather complicated law relating to incapacity due to ill-health and injury in public education.
- Full Text:
- Date Issued: 2014
- Authors: Hlekani, Mphakamisi Witness
- Date: 2014
- Subjects: Employees -- Dismissal of , Collective labor agreements -- Education
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10256 , http://hdl.handle.net/10948/d1020969
- Description: The subject of the present treatise concerns termination of employment contracts that are effected as a result of an employee’s incapacity on the grounds of ill-health or injury. Every employee has the right not to be dismissed unfairly. The Labour Relations Act, 1995 recognises three grounds on which termination of employment might be legitimate. These include the conduct of the employee, the capacity of the employee and the operational requirements of the employer’s business. However, fundamental to any contract of employment is the obligation that rests on an employee not to be absent from work without justification. The Incapacity Code and Procedure in respect of Ill-health or Injury applicable to Educators is contained in Schedule 1 to the Employment of Educators Act, 1998. In addition there are collective agreements which are the products of collective bargaining that are also applicable to all categories of employees employed in the public education sector. Notably, PSCBC Resolution 7 of 2000 forms part of the subject of our discussion. The Department of Education determined the use of independent Health-risk Managers to provide advice on the management of incapacity leave and ill-health retirement, thereby ensuring objective and impartial evaluation which are largely acceptable to employees and their labour representatives. This is the Policy and Procedure on Incapacity Leave and Ill-Health Retirement in the Public Service. The appointed Health-risk Managers make recommendations to the Head of Department who thereafter implement the recommendations and deal with issues of a case to absolute finality. More importantly, the Policy and Procedure for incapacity leave and ill-health retirement in the Public Service is issued in terms of legislation, that is, section 3(3) of the Public Service Act, 1994 and therefore is not a collective agreement. Under the circumstances, it is not always easy to determine a real dispute and an issue in dispute. Because of this uncertainty arbitrators often found that bargaining councils have no jurisdiction to entertain these disputes, while on the other hand some arbitrators opined that bargaining councils do have jurisdiction In this treatise the general principles of the employment contract, the legislative framework applicable in the public education sector in determining an application for temporary incapacity leave and ill-health retirement and procedural and substantive issues in the termination of employment contract due to ill-health are considered and explained. The legal questions around the issue of discretion exercised by the Head of Department in granting or declining applications for ill-health are also examined. The primary aim of the treatise is to provide a clear exposition of the rather complicated law relating to incapacity due to ill-health and injury in public education.
- Full Text:
- Date Issued: 2014
The role of traditional leadership in service delivery in the Ngqushwa Municipality
- Authors: Noyila, Mxolisi Amos
- Date: 2013
- Subjects: Tribal government -- South Africa -- Eastern Cape , Municipal government -- South Africa -- Eastern Cape , Municipal services -- South Africa -- Eastern Cape
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:8340 , http://hdl.handle.net/10948/d1020635
- Description: The study examines challenges that exist in local government in relation to cooperation or working together between traditional leaders and elected councillors. This challenge can be seen mainly in municipalities that include rural areas. The country constantly faces protests by people expressing dissatisfaction with service delivery. This is a cause of concern and raises several questions. Councillors and traditional leaders point fingers at each other. More often than not, councillors as elected leaders exclude traditional leaders in matters of governance. Traditional leaders on the other hand see councillors as people encroaching into their territory. South Africa is characterised by rural areas that operate under Kings and Chiefs who are natural leaders and enjoy authority over the people, their subjects. Historically, traditional leadership was exercised in rural areas. Tribal authorities used to play a role in defining the lives of the people. Their role was very clear. They presided over the majority of cases in their jurisdiction. With changing times, especially during the apartheid era, communities started to mistrust the traditional leaders. There was a stigma attached to traditional leaders; they were seen as puppets of the government. They were used to perpetuate the apartheid government laws and this created a wedge between them and the community at large. When the new dispensation was ushered in, in 1994, hatred and non-acceptance was at a high level. The election and introduction of councillors to some extent undermined the legitimacy of the rule of traditional leaders. They were not recognised, Councillors do not create space for traditional leaders; there is no consultation and therefore no cooperation between councillors and traditional leaders. Some members of traditional leadership became uncomfortable with this situation and started to forge relations with the African National Congress in exile. In 1987, they formed the Congress of Traditional Leaders (CONTRALESA).
- Full Text:
- Date Issued: 2013
- Authors: Noyila, Mxolisi Amos
- Date: 2013
- Subjects: Tribal government -- South Africa -- Eastern Cape , Municipal government -- South Africa -- Eastern Cape , Municipal services -- South Africa -- Eastern Cape
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:8340 , http://hdl.handle.net/10948/d1020635
- Description: The study examines challenges that exist in local government in relation to cooperation or working together between traditional leaders and elected councillors. This challenge can be seen mainly in municipalities that include rural areas. The country constantly faces protests by people expressing dissatisfaction with service delivery. This is a cause of concern and raises several questions. Councillors and traditional leaders point fingers at each other. More often than not, councillors as elected leaders exclude traditional leaders in matters of governance. Traditional leaders on the other hand see councillors as people encroaching into their territory. South Africa is characterised by rural areas that operate under Kings and Chiefs who are natural leaders and enjoy authority over the people, their subjects. Historically, traditional leadership was exercised in rural areas. Tribal authorities used to play a role in defining the lives of the people. Their role was very clear. They presided over the majority of cases in their jurisdiction. With changing times, especially during the apartheid era, communities started to mistrust the traditional leaders. There was a stigma attached to traditional leaders; they were seen as puppets of the government. They were used to perpetuate the apartheid government laws and this created a wedge between them and the community at large. When the new dispensation was ushered in, in 1994, hatred and non-acceptance was at a high level. The election and introduction of councillors to some extent undermined the legitimacy of the rule of traditional leaders. They were not recognised, Councillors do not create space for traditional leaders; there is no consultation and therefore no cooperation between councillors and traditional leaders. Some members of traditional leadership became uncomfortable with this situation and started to forge relations with the African National Congress in exile. In 1987, they formed the Congress of Traditional Leaders (CONTRALESA).
- Full Text:
- Date Issued: 2013
The effect of South African labour legislation on refugees and migrants
- Authors: Swartz, Natasha Schantal
- Date: 2012
- Subjects: Labor laws and legislation -- South Africa , Refugees -- South Africa , Foreign workers -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10289 , http://hdl.handle.net/10948/d1019921
- Description: Since South Africa was declared a democratic country, the number of refugees fleeing to South Africa has increased. While it is understandable that refugees would flee to a country with a Constitution that protects the rights of everyone within its territory, this influx of refugees and migrants also puts a strain on the South African economy. One of the main problems associated with refugees and migrants in this country is their illegal status. Failure to obtain legal status in the country can be attributed to their own negligence to attend to the Refugee Reception Office, upon their arrival in the country. On the other hand, the South African government also fails foreigners in that the service provided at the Refugee Reception Offices is not up to the standard promised in the legislation. A further problem associated with refugees and migrants in the country is that they are competing with South Africans for jobs that are already scarce in the country. A foreigners need to earn a living is the driving force behind entering the employment market, and often illegally. Where refugees and migrants do not have the required work permits, their employment is prohibited in terms of the Immigration Act 13 of 2002 and they are thus illegal workers. Until recently, South Africa has followed the same policy as other international countries. Illegal workers did not have access to the protection provided by our labour legislation, by virtue of the illegality of their employment contracts. This position was changed by the Discovery Health case where the courts focused more on the existence of an employment relationship as oppose to an employment contract.
- Full Text:
- Date Issued: 2012
- Authors: Swartz, Natasha Schantal
- Date: 2012
- Subjects: Labor laws and legislation -- South Africa , Refugees -- South Africa , Foreign workers -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10289 , http://hdl.handle.net/10948/d1019921
- Description: Since South Africa was declared a democratic country, the number of refugees fleeing to South Africa has increased. While it is understandable that refugees would flee to a country with a Constitution that protects the rights of everyone within its territory, this influx of refugees and migrants also puts a strain on the South African economy. One of the main problems associated with refugees and migrants in this country is their illegal status. Failure to obtain legal status in the country can be attributed to their own negligence to attend to the Refugee Reception Office, upon their arrival in the country. On the other hand, the South African government also fails foreigners in that the service provided at the Refugee Reception Offices is not up to the standard promised in the legislation. A further problem associated with refugees and migrants in the country is that they are competing with South Africans for jobs that are already scarce in the country. A foreigners need to earn a living is the driving force behind entering the employment market, and often illegally. Where refugees and migrants do not have the required work permits, their employment is prohibited in terms of the Immigration Act 13 of 2002 and they are thus illegal workers. Until recently, South Africa has followed the same policy as other international countries. Illegal workers did not have access to the protection provided by our labour legislation, by virtue of the illegality of their employment contracts. This position was changed by the Discovery Health case where the courts focused more on the existence of an employment relationship as oppose to an employment contract.
- Full Text:
- Date Issued: 2012
Control and authenticity: reflections on personal autonomy
- Authors: Paphitis, Sharli Anne
- Date: 2010
- Subjects: Frankfurt, Harry G., 1929- -- Criticism and interpretation Nietzsche, Friedrich Wilhelm, 1844-1900 -- Criticism and interpretation Watson, Gary, 1943- -- Criticism and interpretation Self-control Authenticity (Philosophy) Autonomy (Philosophy) Self (Philosophy)
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:2717 , http://hdl.handle.net/10962/d1002847
- Description: Currently the most influential accounts of personal autonomy, at least in the Englishspeaking world, focus on providing conditions under which agents can be said to exercise self-control. Two distinct accounts of personal autonomy have emerged in this tradition: firstly, hierarchical models grounded in the work of Harry Frankfurt; and secondly, systems division models most famously articulated by Gary Watson. In this thesis I show the inadequacies of both of these models by exploring the problematic views of the self and self-control underlying each model. I will suggest that the problems faced by these models stem from the fact that they endorse a problematic fragmentation of the self. I suggest that a Nietzschean account of personal autonomy is able to avoid these problems. The Nietzschean account can largely, I show, be drawn from Nietzsche’s understanding of both the ‘man of ressentiment’ and his opposite, the sovereign individual. On this picture wholeness of self – rather than fragmentation of the self – is required in order for us to be most fully autonomous. Furthermore, this wholeness of self requires the kind of integrity which is opposed to the problematic fragmentation endorsed by Frankfurt and Watson.
- Full Text:
- Date Issued: 2010
- Authors: Paphitis, Sharli Anne
- Date: 2010
- Subjects: Frankfurt, Harry G., 1929- -- Criticism and interpretation Nietzsche, Friedrich Wilhelm, 1844-1900 -- Criticism and interpretation Watson, Gary, 1943- -- Criticism and interpretation Self-control Authenticity (Philosophy) Autonomy (Philosophy) Self (Philosophy)
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:2717 , http://hdl.handle.net/10962/d1002847
- Description: Currently the most influential accounts of personal autonomy, at least in the Englishspeaking world, focus on providing conditions under which agents can be said to exercise self-control. Two distinct accounts of personal autonomy have emerged in this tradition: firstly, hierarchical models grounded in the work of Harry Frankfurt; and secondly, systems division models most famously articulated by Gary Watson. In this thesis I show the inadequacies of both of these models by exploring the problematic views of the self and self-control underlying each model. I will suggest that the problems faced by these models stem from the fact that they endorse a problematic fragmentation of the self. I suggest that a Nietzschean account of personal autonomy is able to avoid these problems. The Nietzschean account can largely, I show, be drawn from Nietzsche’s understanding of both the ‘man of ressentiment’ and his opposite, the sovereign individual. On this picture wholeness of self – rather than fragmentation of the self – is required in order for us to be most fully autonomous. Furthermore, this wholeness of self requires the kind of integrity which is opposed to the problematic fragmentation endorsed by Frankfurt and Watson.
- Full Text:
- Date Issued: 2010
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