- Title
- Termination of employment in the public service sector: the constitutionality of the deeming provisions
- Creator
- Mbewana, Inga
- Subject
- unfair labor practices--South Africa
- Subject
- labor law and legislation--South Africa
- Date Issued
- 2022-12
- Date
- 2022-12
- Type
- Master's theses
- Type
- text
- Identifier
- http://hdl.handle.net/10948/60080
- Identifier
- vital:62940
- Description
- In terms of the South African Public Service Act,1 an employee who absents him- /herself from official duties without permission of his or her head of department, office or institution for a period exceeding one calendar month is deemed to have been discharged by operation of law. A similar provision can also be found in section 14 of the Employment of Educators Act,2 which expressly refers to fourteen (14) consecutive day’s unauthorised absence as opposed to thirty (30) days. Employees whose services have been terminated by operation of law are deprived an opportunity to defend themselves prior to the dismissal as prescribed by the Labour Relations Act3 (LRA). South African courts have grappled with several cases relating to dismissal by operation of law in the public service. The nature of these provisions is such that employees in the public sector are discharged from their duties without any hearing to offer them the opportunity to state their side and/or give a reasonable explanation for their absence. These provisions will thus be referred to herein as “the deeming provisions”. The deeming provisions provide that the discharge / dismissal is “on account of misconduct” however, it does not provide for a pre-dismissal procedure that is to be followed when dismissal is on account of misconduct, as prescribed by the LRA. It has been settled in our law that dismissal by operation of law is not dismissal for the purposes of the LRA. The employees dismissed by operation of law are regarded as if they are not entitled to a hearing. The right to fair labour practices protects everyone including public sector employees, 4 and such right is given effect to by way of enactment of the LRA. The LRA serves to protect public sector employees except where the exclusion is specified. This treatise seeks to challenge the necessity and constitutionality of the deeming provisions on the basis of its contravention of the constitutional right to fair labour practices.
- Description
- Thesis (LLM) -- Faculty of Law, Department of Mercantile law, 2022
- Format
- computer
- Format
- online resource
- Format
- application/pdf
- Format
- 1 online resource (79 pages)
- Format
- Publisher
- Nelson Mandela University
- Publisher
- Faculty of Law
- Language
- English
- Rights
- Nelson Mandela University
- Rights
- All Rights Reserved
- Rights
- Open Access
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| Thumbnail | File | Description | Size | Format | |||
|---|---|---|---|---|---|---|---|
| View Details Download | SOURCE1 | Mbewana, I Dec 2022 (1).pdf | 527 KB | Adobe Acrobat PDF | View Details Download |