The legality and enforceability of an automatic termination clause in the contract of employment
- Authors: Mbewana, Ntsikelelo Elliot
- Date: 2020
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor contract -- South Africa Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48993 , vital:41575
- Description: This study seeks to determine the legality and enforceability of an automatic termination clause in a contract of employment. Our law seems to have two different procedures in dealing with this issue. The first aspect is to determine whether the automatic termination clause is inserted in a contract of employment merely to circumvent the provisions of the Labour Relations Act (LRA), in particular section 5(2)(b) of the LRA. If the intention is found to be to circumvent the purpose of the said provisions of the Act, then an automatic termination clause is not allowed and any termination of the contract resulting therefrom becomes a dismissal challengeable at the CCMA, Bargaining Council or Labour Court depending on the issue at hand. In the alternative, there is no dismissal for the purposes of section 186(1) of the Act in circumstances where the end of an agreed fixed term is defined by the occurrence of a particular event. Put differently, there is no dismissal when the agreed and anticipated event materialises. The Constitution of the Republic of South Africa provides that everyone has the right to fair labour practices. This provision guarantees the right not to be unfairly dismissed and is in line with Article 4 of Convention 158 of the International Labour Organisation which provides that the employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on operational requirements of the undertaking, establishment or service. This study aims to investigate the question of the legality and enforceability of an automatic termination clause in a contract of employment by analysing inter alia, the Constitution, LRA, ILO recommendations and the authorities in order to determine the extent of protection afforded to employees against employers.
- Full Text:
- Date Issued: 2020
- Authors: Mbewana, Ntsikelelo Elliot
- Date: 2020
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor contract -- South Africa Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48993 , vital:41575
- Description: This study seeks to determine the legality and enforceability of an automatic termination clause in a contract of employment. Our law seems to have two different procedures in dealing with this issue. The first aspect is to determine whether the automatic termination clause is inserted in a contract of employment merely to circumvent the provisions of the Labour Relations Act (LRA), in particular section 5(2)(b) of the LRA. If the intention is found to be to circumvent the purpose of the said provisions of the Act, then an automatic termination clause is not allowed and any termination of the contract resulting therefrom becomes a dismissal challengeable at the CCMA, Bargaining Council or Labour Court depending on the issue at hand. In the alternative, there is no dismissal for the purposes of section 186(1) of the Act in circumstances where the end of an agreed fixed term is defined by the occurrence of a particular event. Put differently, there is no dismissal when the agreed and anticipated event materialises. The Constitution of the Republic of South Africa provides that everyone has the right to fair labour practices. This provision guarantees the right not to be unfairly dismissed and is in line with Article 4 of Convention 158 of the International Labour Organisation which provides that the employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on operational requirements of the undertaking, establishment or service. This study aims to investigate the question of the legality and enforceability of an automatic termination clause in a contract of employment by analysing inter alia, the Constitution, LRA, ILO recommendations and the authorities in order to determine the extent of protection afforded to employees against employers.
- Full Text:
- Date Issued: 2020
Dismissal for ill health or injury and reasonable accommodation for disabled employees
- Authors: Mabenge, Mfundiso Samson
- Date: 2019
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa Discrimination in employment -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/34755 , vital:33437
- Description: This treatise examines the challenges faced by people with disabilities, in particular, dismissal and discrimination at the workplace. The study employed a qualitative approach to explore and address the research questions. It highlights that the Constitution provides protection against discrimination on the ground of disability. This right not to be discriminated against or unfairly dismissed is further given effect by the Codes of Good Practice in both the EEA and the LRA. Dismissal on a prohibited ground of discrimination, such as disability, is not merely unfair, but automatically unfair. Despite the above legislative protection, the findings in this study indicate that South Africa still faces huge challenges of disability discrimination and dismissal. Notwithstanding the increased sensitivity of this subject across the country, applicants for work and employees generally find themselves to be the victims of employment discrimination as well as dismissal due to their disability. Those who are in the working sector are not reasonably accommodated. The study submits that people with disabilities should be reasonably accommodated and be retained in the working sector as they have a positive role to play in the economy. In terms of legislation, the study found that although well written in theory, they are practically ineffective given that they are fragmented. This study observes that single legislation dealing comprehensively with disability management, like in other jurisdictions does not exist in South Africa. The lack of such single legislation is a significant weakness in the South African disability management framework. Therefore, this has resulted in a fragmented approach to implementation. The study suggests that trade union representatives and employers should be well trained, particularly on issues relating to dismissal for incapacity in general. From a global perspective, international organisations through ratifying Conventions have also heeded to the plight of disabled persons. This is proof that disability can no longer be confined to the borders of one nation. Many disability organisations have emerged over the years and are representing the interests of the disabled. The findings of this study may help companies, organisations and institutions improve their policy practices regarding the dismissal of employees associated with ill health or injury.
- Full Text:
- Date Issued: 2019
- Authors: Mabenge, Mfundiso Samson
- Date: 2019
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa Discrimination in employment -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/34755 , vital:33437
- Description: This treatise examines the challenges faced by people with disabilities, in particular, dismissal and discrimination at the workplace. The study employed a qualitative approach to explore and address the research questions. It highlights that the Constitution provides protection against discrimination on the ground of disability. This right not to be discriminated against or unfairly dismissed is further given effect by the Codes of Good Practice in both the EEA and the LRA. Dismissal on a prohibited ground of discrimination, such as disability, is not merely unfair, but automatically unfair. Despite the above legislative protection, the findings in this study indicate that South Africa still faces huge challenges of disability discrimination and dismissal. Notwithstanding the increased sensitivity of this subject across the country, applicants for work and employees generally find themselves to be the victims of employment discrimination as well as dismissal due to their disability. Those who are in the working sector are not reasonably accommodated. The study submits that people with disabilities should be reasonably accommodated and be retained in the working sector as they have a positive role to play in the economy. In terms of legislation, the study found that although well written in theory, they are practically ineffective given that they are fragmented. This study observes that single legislation dealing comprehensively with disability management, like in other jurisdictions does not exist in South Africa. The lack of such single legislation is a significant weakness in the South African disability management framework. Therefore, this has resulted in a fragmented approach to implementation. The study suggests that trade union representatives and employers should be well trained, particularly on issues relating to dismissal for incapacity in general. From a global perspective, international organisations through ratifying Conventions have also heeded to the plight of disabled persons. This is proof that disability can no longer be confined to the borders of one nation. Many disability organisations have emerged over the years and are representing the interests of the disabled. The findings of this study may help companies, organisations and institutions improve their policy practices regarding the dismissal of employees associated with ill health or injury.
- Full Text:
- Date Issued: 2019
Automatic unfair dismissal with reference to section 187(1)(c) of the Labour Relations Act
- Authors: Janniker, Jonathan
- Date: 2018
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30584 , vital:30966
- Description: Automatic unfair dismissal are relatively new concept in South African employment law. The concept was only introduced in South African legislation with the promulgation of the labour relations act 66 of 1995(hearafter LRA) The concept however, found its roots from international labour organisation convention 58 of 1982. The court in South Africa under the guidance of the ILO convention were limited to two possible ways of dealing with automatically unfair dismissals. One was to criminalize the practice, and other was to ensure that such dismissals were considered unacceptable.
- Full Text: false
- Date Issued: 2018
- Authors: Janniker, Jonathan
- Date: 2018
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Unfair labor practices -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30584 , vital:30966
- Description: Automatic unfair dismissal are relatively new concept in South African employment law. The concept was only introduced in South African legislation with the promulgation of the labour relations act 66 of 1995(hearafter LRA) The concept however, found its roots from international labour organisation convention 58 of 1982. The court in South Africa under the guidance of the ILO convention were limited to two possible ways of dealing with automatically unfair dismissals. One was to criminalize the practice, and other was to ensure that such dismissals were considered unacceptable.
- Full Text: false
- Date Issued: 2018
Balancing the interests of employer and employee in dismissal for misconduct
- Pillay, Prushothman Subramoney
- Authors: Pillay, Prushothman Subramoney
- Date: 2018
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor discipline -- Law and legislation -- South Africa South Africa -- Employment Equity Act, 1998 South Africa -- Basic Conditions of Employment Act, 1997 South Africa -- Labour Relations Act, 1995 Unfair labor practices -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/34414 , vital:33375
- Description: South Africa emerged from a history dogged by an oppressive system in which race was used as a medium of oppression. Workers and in particular African workers’ rights were severely curtailed. However, following the advent of the Constitution, several employees’ rights and freedoms are now entrenched key amongst them in the right to fair labour practices is enshrined in section 23 (1) of the Constitution. Post 1994, South Africa adopted various new forms of labour legislation, including the Labour Relations Act. This marked the watershed in changing the balance of power away from the employer. The LRA gives form and content to the rights enshrined in the Constitution by establishing substantive and procedural requirements prior to dismissal. Equally important is the guidelines contained in schedule 8 to the LRA which depict an attempt by the legislature to ensure that employees are protected against unfair dismissal. The historical background of the employment relationship stems from the Master and Servant Act. The common law evolved in South Africa from Roman-Dutch and English practices. The common law was shaped against the backdrop of Apartheid modified to some extent through the Wiehahn Commission4 and more recently politically through union and National Economic Development and Labour Council (NEDLAC) involvement regulating labour practices through legislation. In South Africa, the employment relationship is regulated by three main sources of law. These include the Constitution, labour legislation and the law of contract. Besides these sources, South Africa is a member state of the International Labour Organisation.
- Full Text:
- Date Issued: 2018
- Authors: Pillay, Prushothman Subramoney
- Date: 2018
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor discipline -- Law and legislation -- South Africa South Africa -- Employment Equity Act, 1998 South Africa -- Basic Conditions of Employment Act, 1997 South Africa -- Labour Relations Act, 1995 Unfair labor practices -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/34414 , vital:33375
- Description: South Africa emerged from a history dogged by an oppressive system in which race was used as a medium of oppression. Workers and in particular African workers’ rights were severely curtailed. However, following the advent of the Constitution, several employees’ rights and freedoms are now entrenched key amongst them in the right to fair labour practices is enshrined in section 23 (1) of the Constitution. Post 1994, South Africa adopted various new forms of labour legislation, including the Labour Relations Act. This marked the watershed in changing the balance of power away from the employer. The LRA gives form and content to the rights enshrined in the Constitution by establishing substantive and procedural requirements prior to dismissal. Equally important is the guidelines contained in schedule 8 to the LRA which depict an attempt by the legislature to ensure that employees are protected against unfair dismissal. The historical background of the employment relationship stems from the Master and Servant Act. The common law evolved in South Africa from Roman-Dutch and English practices. The common law was shaped against the backdrop of Apartheid modified to some extent through the Wiehahn Commission4 and more recently politically through union and National Economic Development and Labour Council (NEDLAC) involvement regulating labour practices through legislation. In South Africa, the employment relationship is regulated by three main sources of law. These include the Constitution, labour legislation and the law of contract. Besides these sources, South Africa is a member state of the International Labour Organisation.
- Full Text:
- Date Issued: 2018
Substantive fairness in dismissals based on operational requirements
- Authors: Hokwana, Tina
- Date: 2018
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor discipline -- Law and legislation -- South Africa Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30331 , vital:30931
- Description: This treatise interrogates the concept of substantive fairness in dismissals based on operational requirements and commences with the background and rationale to the study. It intends to achieve by virtue of specific research questions identified in the first chapter. The second chapter focuses on a discussion defining the term operational requirements and the circumstances in which employers have sought to justify dismissals based on operational requirements together with the courts’ interpretation of the term. Following an in-depth look at the South African courts’ interpretation of operational requirements, the third chapter analyses the jurisprudential development of the law of substantive fairness and assesses how the courts have applied statutory provisions relevant to operational requirement dismissals. The third chapter is then followed by a discussion on the aspects relating to selection criteria as pronounced by South African labour-law jurisprudence and deals specifically with the concept of LIFO and the employment universe. The fourth chapter also raises the various forms of fair and objective selection criteria, as well as the concept of bumping in light of the Employment Equity Act. The final chapter concludes that the primary areas requiring reform relate to the test for substantive fairness that does not include a proportionality analysis to weigh up the competing interests of the employer and the employees. The treatise further concludes with recommendations in dealing with dismissals based on operational requirements.
- Full Text:
- Date Issued: 2018
- Authors: Hokwana, Tina
- Date: 2018
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor discipline -- Law and legislation -- South Africa Unfair labor practices -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/30331 , vital:30931
- Description: This treatise interrogates the concept of substantive fairness in dismissals based on operational requirements and commences with the background and rationale to the study. It intends to achieve by virtue of specific research questions identified in the first chapter. The second chapter focuses on a discussion defining the term operational requirements and the circumstances in which employers have sought to justify dismissals based on operational requirements together with the courts’ interpretation of the term. Following an in-depth look at the South African courts’ interpretation of operational requirements, the third chapter analyses the jurisprudential development of the law of substantive fairness and assesses how the courts have applied statutory provisions relevant to operational requirement dismissals. The third chapter is then followed by a discussion on the aspects relating to selection criteria as pronounced by South African labour-law jurisprudence and deals specifically with the concept of LIFO and the employment universe. The fourth chapter also raises the various forms of fair and objective selection criteria, as well as the concept of bumping in light of the Employment Equity Act. The final chapter concludes that the primary areas requiring reform relate to the test for substantive fairness that does not include a proportionality analysis to weigh up the competing interests of the employer and the employees. The treatise further concludes with recommendations in dealing with dismissals based on operational requirements.
- Full Text:
- Date Issued: 2018
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