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.
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- Date Issued: 2018
Balancing the interests of employer and employee in dismissal for misconduct
- 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.
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- 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.
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- Date Issued: 2018