The procedural fairness requirement in suspensions
- Authors: Japtha, Louisa Dihelena
- Date: 2017
- Subjects: Labor discipline -- Law and legislation -- South Africa Employees -- Complaints against -- South Africa , Employee rights -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/17603 , vital:28400
- Description: The focal point of this treatise is the procedural requirements relating to suspensions. For a suspension to be fair it must be for a fair reason and in accordance with a fair procedure which is commonly referred to as substantive and procedural fairness. The Labour Relations Act 66 of 1995 does not tell or provide guidance in terms of what these procedural requirements for a suspension are. The Act is completely silent on this matter. The Act only requires that any disciplinary measure instituted against an employee must be done in terms of a fair procedure. Suspensions have been described by our courts as the employment equivalent of arrest. It is normally used as a preventative measure pending internal disciplinary investigations or as a disciplinary sanction for an employee who repeatedly engages in misconduct. This treatise highlights the impact of arbitrary suspension of employees and suspensions of employees for inordinate periods of time. Suspensions are not intended for purposes of punishment. The Labour Court has on numerous decisions cautioned employers on issues of unfair suspension because of its detrimental impact on the employee’s reputation, advancement, job security and other grounds. Situations have often arisen where an employer suspends an employee without following any procedure. This practice was particularly prevalent under the common law and before the judgment in Mogothle v the Premier of the Northwest Province and Another when employers were suspending employees as they saw fit. Following the principles in this case, bearing in mind that each case is judged on its own merits and the detrimental effect of a suspension. A suspension should only be warranted in circumstances where: The employer has a justifiable reason to believe prima facie at least that the employee has engaged in serious misconduct; There is some objectively justifiable reason to deny the employee access to the workplace based on the integrity of any pending investigation into the alleged misconduct or some other relevant factor that would place the investigation or the interest of affected parties in jeopardy. The employee is given the opportunity to state a case or to be heard before any final decision to suspend is made. Although the right to be heard is not a formally defined process, case law has developed this concept to such an extent that it will be regarded as unfair labour practice if not adhered to. A suspension of an employee can therefore never be justified without adhering to the audi alteram partem principle. This does not mean that an employer cannot suspend an employee. Our courts accept that suspension is necessary especially for purposes of good administration and is justified, following the correct procedure and where the employer continues to pay the employee. Despite the fact that the courts are playing a more active role with regards to the issue of suspensions, suspensions are often open to abuse. In this regard the treatise focused on the notion of special leave versus suspensions. We note how in the last few years, employers especially those in the public service sector, misconstrued and misused their power for a purpose not authorised in law, and continue to do so despite applications to the courts alerting it to the illegality of this practice. Employers are resorting to special leave with the aim of side stepping the procedural requirements laid down by our courts in respect of section 182 (2) of the Labour Relations Act. In this regard the courts vehemently criticised this practice and ensured that employers who are acting maliciously without adhering to their own policies and procedures are held accountable. The court held that in the event where special leave is imposed on an employee for the purposes of discipline, that special leave is regarded as a suspension. Lastly, it is quite evident that the courts are playing a much more active role pertaining to the issue of suspensions. A number of court decisions discussed in this treatise show how the courts come down hard on employers who hastily resort to suspending an employee where there is no valid reason to do so or where the procedure was manifestly unfair.
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- Date Issued: 2017
Comparing and contrasting liberal, communitarian and feminist approaches to resolving tensions between customary and constitutional law: the case of polygamy in Swaziland
- Authors: Manson, Katherine Elizabeth
- Date: 2009
- Subjects: Human rights -- Swaziland Constitutional law -- Swaziland Customary law -- Swaziland Culture and law -- Swaziland Women's rights -- Swaziland Sex discrimination against women -- Swaziland Polygamy -- Swaziland Liberalism Communitarianism
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:2801 , http://hdl.handle.net/10962/d1003011
- Description: Tensions between the individual rights and freedoms found in constitutional bills of rights and the traditionally prescribed social roles and positions articulated in African customary law systems have often been characterised as tensions between communitarian and liberal philosophies. In particular, the notion of gender equality, which is often a feature of the protections offered by constitutional bills of rights, is seen to be in direct opposition to the overtly patriarchal character of many African customs and traditions. This thesis looks specifically at polygamy, long and widely considered in the West to be an oppressive practice premised on the assumed inferiority of women. The analysis considers the implications of polygamy in a particular cultural context, that of the Kingdom of Swaziland, where the newly instituted constitution is often seen to be incompatible with many aspects of Swazi customary law. Here, the tension between the constitutional commitment to gender equality and the persistence of polygamy as a seemingly discriminatory cultural practice forms a lens through which to view the debate as a whole. The theoretical analysis is supplemented by empirical research sourced from local media archives and in-depth interviews conducted with twelve Swazi women, both unmarried and married in polygamous relationships. Communitarian and liberal approaches to resolving this tension are compared, contrasted and finally critiqued from a feminist standpoint. The feminist critique of both communitarianism and liberalism implies that neither ideology promises much for women and affirms the relatively recent feminist suggestion that the key to resolving tensions between constitutional and customary law in general, and to uplifting the social/legal status of women in particular lies in the enhancement of women’s democratic participation and the improvement of women’s decision-making powers.
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- Date Issued: 2009
Conflict, contradiction and crisis: an analysis of the politics of AIDS policy in post-Apartheid South Africa
- Authors: Fletcher, Haley Kim
- Date: 2009
- Subjects: AIDS (Disease) -- Political aspects -- Africa, Southern AIDS (Disease) -- Political aspects -- South Africa AIDS (Disease) -- Government policy -- South Africa Africa -- Politics and government
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:2775 , http://hdl.handle.net/10962/d1002985
- Description: Despite the profound impacts of HIV and AIDS on all sectors of South African society, governmental responses to the AIDS epidemic have been inundated with contradiction, conflict and contestation. Though governmental leaders have justified not funding HIV treatment programs because they believe that poverty needs to be dealt with first, social spending has been slashed as part of an adherence to a neo-liberal economic model. Though it would seem that the government would seem to have everything to gain by establishing a cooperative relationship with non-governmental actors regarding the epidemic, the relationship between the government and non-governmental actors has instead been described as nothing short of hostile. Though the government enthusiastically backed Virodene, a supposed treatment for AIDS that turned out to be no more than an industrial solvent, other ‘scientifically backed’ AIDS treatments have been treated with caution and skepticism – to the point where the government even refused to provide funding for programs to prevent mother to child transmission of the virus. And perhaps the most perplexing is that although widely respected for his intellect and cool demeanor, former President Mbeki chose to risk his political career on the AIDS issue by shunning away from the mainstream consensus on the biomedical causes of the epidemic and instead surrounded himself and sought advice from AIDS ‘dissidents’ This thesis will seek explanations for these apparent contradictions. Using Bourdieu’s (1986) typology of capitals, it will build on an argument put forward by Helen Schneider (2002): from the South African government’s perspective, the contestation regarding HIV and AIDS policy and implementation is over symbolic capital, or the right to legitimately hold and exercise political power regarding the epidemic. Though this argument helps explain the conflictual relationship between the government and non-governmental actors regarding the AIDS crisis, in order to understand the perplexing contradictions within the governmental policy response, the political context of policy formation must first be taken into consideration.
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- Date Issued: 2009