Note: Mandatory Vaccinations in the Workplace: Lessons from Covid-19

by | May 24, 2023 | ILJ, ILJ V42 I4

Note: Mandatory Vaccinations in the Workplace: Lessons from Covid-19

Author Monray Marsellus Botha

ISSN: 2413-9874
Affiliations: Professor, Department of Mercantile Law, Faculty of Law, University of Pretoria
Source: Industrial Law Journal, Volume 42 Issue 4, 2021, p. 2065 – 2081

Abstract

On 11 June 2021, the government issued a direction that specifically deals with mandatory vaccinations in the workplace. Employees are granted the right to refuse the vaccine on constitutional or medical grounds. Employers, in such instances, should take into consideration the rights of employees to bodily and psychological integrity and the right to freedom of religion, belief and opinion (ss 12 and 15 of the Constitution). For employers to implement such a policy, an overall assessment of whether the limitation is reasonable and justifiable should be conducted considering issues such as reasonable accommodation and possible alternative solutions before even considering dismissal.

Note: The Prohibition of Sexual Harassment in the Workplace: It Was Never Just About Sex

by | May 24, 2023 | ILJ, ILJ V42 I4

Note: The Prohibition of Sexual Harassment in the Workplace: It Was Never Just About Sex

Author Thulani Nkosi

ISSN: 2413-9874
Affiliations: Sessional Lecturer, School of Law, University of the Witwatersrand
Source: Industrial Law Journal, Volume 42 Issue 4, 2021, p. 2081 – 2099

Abstract

This note critiques the current approach to the adjudication of sexual harassment cases through the lens of two conflicting judgments. It argues that our courts have failed to articulate a coherent or a principled vision of sexual harassment law that is broader than the ‘sex guise’ in which sexual harassment cases are often presented. The argument developed in this note is that there has been a failure to differentiate between sex or conduct of a sexual nature and sexual harassment. Because of this failure, our courts appear to have made sex or every conduct of a sexual nature in the workplace a focus area of sexual harassment law. With reference to the historical evolution of the prohibition of sexual harassment and radical feminist literature, this note argues that sexual harassment law is not, and was never intended to operate as, a remedy for every conduct of a sexual nature in the workplace. There may be conduct of a sexual nature which is deemed inappropriate in the workplace, but such conduct does not become sexual harassment for that reason. The objective behind the prohibition of workplace sexual harassment is the elimination of sexism which is the real barrier to gender equality in the workplace.

Note: Is Retirement Age a Moving Target? A Review of Recent Jurisprudence

by | May 24, 2023 | ILJ, ILJ V42 I4

Note: Is Retirement Age a Moving Target? A Review of Recent Jurisprudence

Authors Marius van Staden & Michele van Eck

ISSN: 2413-9874
Affiliations: Associate Professor, Department of Public Law, University of Johannesburg; Senior Lecturer, Department of Private Law, University of Johannesburg
Source: Industrial Law Journal, Volume 42 Issue 4, 2021, p. 2099 – 2115

Abstract

A practice that is becoming commonplace is for employers to reserve the right to change the date of retirement. The note examines contractual and legislative mechanisms for changing an employee’s retirement age and three recent LAC cases in which the employer has done so. Individual contracts may include a reference to a staff handbook and may allow the employer to change employees’ retirement age contained in the handbook. This amendment may be made without obtaining the employee’s consent because the common law recognises that an employer has the right to make changes in these contexts as long as this discretion is exercised reasonably.

Multi-sectoral Workplaces and Trade Unions: The Unforeseen Consequences of Demarcation Principles and Organisational Rights

by | May 24, 2023 | ILJ, ILJ V42 I2

Multi-sectoral Workplaces and Trade Unions: The Unforeseen Consequences of Demarcation Principles and Organisational Rights

Authors Shane Godfrey, Mario Jacobs & Emma Fergus

ISSN: 2413-9874
Affiliations: Director, Labour, Development and Governance Research Unit, University of Cape Town; Researcher, Labour, Development and Governance Research Unit, University of Cape Town; Senior Lecturer, Commercial Law Department; Labour, Development and Governance Research Unit, University of Cape Town
Source: Industrial Law Journal, Volume 42 Issue 2, 2021, p. 692 – 708

Abstract

The article explores how the changing organisation of work combined with a long-standing legal principle of demarcation disputes and the organisational rights scheme of the Labour Relations Act underlie a significant shift in trade union organisation. The externalisation of work is leading to multi-sectoral workplaces which (among other factors) is motivating trade unions to organise outside their traditional sectors. A legal principle established in demarcation disputes (ie it is the nature of the business of the employer that determines the sector in which the employer is located) has been adopted by commissioners when determining organisational rights disputes to the detriment of trade unions. Unions are responding in part by expanding their organisational scope, in effect becoming multi-sectoral unions. One is therefore seeing a fundamental shift away from industrial unionism to multi-sectoral or even general unionism. This shift, we argue, will lead to a rise in trade union rivalry and will have serious consequences for collective bargaining.

Repositioning Sexual Harassment: Integration and Objectivity as Guiding Principles in the ILO Convention 190 and the Draft Code against Violence and Harassment in the World of Work

by | May 24, 2023 | ILJ, ILJ V42 I2

Repositioning Sexual Harassment: Integration and Objectivity as Guiding Principles in the ILO Convention 190 and the Draft Code against Violence and Harassment in the World of Work

Authors Debbie Collier & Monique Carels

ISSN: 2413-9874
Affiliations: Associate Professor, Department of Commercial Law, Institute of Development and Labour
Law, University of Cape Town; Lecturer, Department of Commercial Law, University of Cape Town
Source: Industrial Law Journal, Volume 42 Issue 2, 2021, p. 692 – 708

Abstract

Currently, sexual harassment in the workplace is treated as an exceptional form of unfair discrimination on the basis of sex, gender or sexual orientation; and more generally, harassment, if it is based on a listed or analogous ground, is treated as a form of discrimination, which is prohibited in terms of the Employment Equity Act. In recent developments, the International Labour Organisation’s Convention on Violence and Harassment in the World of Work 190 of 2019 and South Africa’s Draft Code of Good Practice on the Prevention and Elimination of Violence and Harassment in the World of Work of 2020 introduce the term ‘violence and harassment’ as an organising concept for the many forms of unacceptable behaviour in the workplace that cause, or are likely to cause, harm (physical, psychological, sexual or economic). While the concept of ‘violence and harassment’ includes sexual harassment, it is not limited to conduct that amounts to discrimination. In addition to prohibiting forms of violence and harassment, Convention 190 requires the adoption of an inclusive, integrated and gender-responsive approach for the prevention and elimination of violence and harassment in the world of work. In this article we consider the implications of these developments for South Africa. In particular we argue that the current legal framework establishes a fragmented and complex system for resolving sexual harassment disputes; and we consider the impact on this system if the organising concept of violence and harassment were to be adopted, with violence and harassment prohibited within an inclusive and integrated approach. We caution that, in the absence of carefully crafted legislative revisions to the current legal framework, the system may become even more complex and fragmented.