Case Note: Gambling with industrial peace: Non-disclosure of business information and the decision in National Union of Public Service & Allied Workers obo Mani & others v National Lotteries Board (2014) 35 ILJ 1885 (CC); 2014 (3) SA 544 (CC)

by | Oct 6, 2019 | ILJ, ILJ V36 I4

Case Note: Gambling with industrial peace: Non-disclosure of business information and the decision in National Union of Public Service & Allied Workers obo Mani & others v National Lotteries Board (2014) 35 ILJ 1885 (CC); 2014 (3) SA 544 (CC)

Authors Debbie Collier, Joseph Shaw

ISSN: 2413-9874
Affiliations: Associate Professor, Department of Commercial Law, Institute of Development and Labour Law, University of Cape Town; LLB Candidate, Faculty of Law, University of Cape Town
Source: Industrial Law Journal, Volume 36 Issue 4, 2015, p. 2503 – 2515

Abstract

None

Leave for working fathers in the SADC region

by | Oct 6, 2019 | ILJ, ILJ V36 I4

Leave for working fathers in the SADC region

Authors Lisa Dancaster, Tamara Cohen

ISSN: 2413-9874
Affiliations: Honorary Research Fellow, School of Law, University of KwaZulu-Natal; Associate Professor, School of Law, University of KwaZulu-Natal
Source: Industrial Law Journal, Volume 36 Issue 4, 2015, p. 2474 – 2494

Abstract

This article examines legislated leave provisions for working fathers in the fifteen member states of the Southern African Development Community (SADC). Leave for working fathers in these countries is found in a variety of legislative measures, including specific paternity leave provisions and in ‘other’ more general leave provisions. Three models are developed and used as a framework for analysis of legislation around paternity, parental and ‘other’ leave for fathers in all SADC member states. The findings from this analysis show a low level of legislated leave for fathers in SADC countries and the absence of any parental leave in the region. In particular policy options regulating leave for fathers in South Africa are highlighted. Comparisons are made with policy provisions regulating leave for fathers in developed countries. An assessment of the findings is also made against the provisions of SADC standards regulating leave for fathers. The findings provide new evidence on the nature and extent of leave for working fathers in the SADC region. They also highlight the divergence between parental leave schemes in more developed countries and leave provisions for fathers in SADC countries. The three models provide a useful analytical tool for research on leave for working fathers in countries in less developed regions of the world.

Some thoughts on developments regarding the recovery of damages for pure psychiatric or psychological injury sustained in the workplace

by | Oct 6, 2019 | ILJ, ILJ V36 I4

Some thoughts on developments regarding the recovery of damages for pure psychiatric or psychological injury sustained in the workplace

Authors Adolph Landman, Moffat Ndou

ISSN: 2413-9874
Affiliations: Judge of the High Court of South Africa and Judge of the Labour Appeal Court; Law Researcher in the High Court of South Africa (NW)
Source: Industrial Law Journal, Volume 36 Issue 4, 2015, p. 2460 – 2473

Abstract

Employers have the duty to provide a safe workplace or working environment for employees. As a general rule this includes the duty to prevent psychiatric or psychological harm to employees. The stigma attached to mental illness has discouraged those who suffer mental illness from seeking assistance or redress for psychiatric or psychological harm or injury. This stigma is eroding and worldwide such claims in the workplace are on the increase. The remedies available to employees in South Africa for such injuries and illness are explored in this contribution. Where an accident resulting in such injury arises within the course and scope of employment, COIDA is often applicable and provides compensation for such injuries and illnesses. Only if COIDA does not apply, may damages be claimed in terms of delict or contract. These statutory and common law remedies give rise to specific elements and challenges particularly as regards psychiatric or psychological harm. They are examined in the course of this contribution.

The Labour Courts, fairness and the rule of law

by | Oct 6, 2019 | ILJ, ILJ V36 I4

The Labour Courts, fairness and the rule of law

Authors Andre van Niekerk

ISSN: 2413-9874
Affiliations: Judge of the Labour Court
Source: Industrial Law Journal, Volume 36 Issue 4, 2015, p. 2451 – 2459

Abstract

Articles by Judges Wallis and Froneman respectively have generated a debate on the rule of law and its application to labour matters. Judge Wallis has argued that the Labour Relations Act, in its application, has fallen short of the rule of law goals to which it aspired, largely on account of uncertain and unpredictable outcomes. Judge Froneman argues for a substantive rather than a formal conception of the rule of law, one that more concretely seeks to address our historical deficit. This article suggests that both conceptually and in relation to the day-to-day operations of the Labour Courts, a formal conception of the rule of law has its limitations. While a more substantive approach to the rule of law might better serve to define the concept of fairness that underpins the Act and its dispute resolution structures (if only because it demands a more critical approach), it is less easily translated into pragmatic goals. A greater concern is the unravelling of the corporatist premise on which the LRA is based. The continued ability of the statutory dispute resolution structures (including the labour courts) to institutionalise industrial conflict and contain worker discontent is the true challenge facing labour law in South Africa.

Case Note: Setting the record straight on procedurally unfair large-scale retrenchments: Edcon v Steenkamp & others JS648/13 3 March 2015 (LAC)

by | Oct 6, 2019 | ILJ, ILJ V36 I3

Case Note: Setting the record straight on procedurally unfair large-scale retrenchments: Edcon v Steenkamp & others JS648/13 3 March 2015 (LAC)

Authors Tamara Cohen

ISSN: 2413-9874
Affiliations: Professor, School of Law, University of KwaZulu Natal
Source: Industrial Law Journal, Volume 36 Issue 3, 2015, p. 1781

Abstract

None

Retrenchments in order to increase profits: The legal and ethical duties of directors

by | Oct 6, 2019 | ILJ, ILJ V36 I3

Retrenchments in order to increase profits: The legal and ethical duties of directors

Authors Tobie Wiese

ISSN: 2413-9874
Affiliations: Former senior lecturer, Department of Commercial Law, University of Cape Town
Source: Industrial Law Journal, Volume 36 Issue 3, 2015, p. 1748 – 1765

Abstract

The Labour Relations Act and the decisions of the labour courts interpreting the provisions of the Act limit the managerial prerogatives of directors to retrench workers in order to increase profits by requiring that employers must consider alternatives to dismissals. In addition, the Companies Act requires that directors must act in good faith, for a proper purpose and in the best interests of the company. The best interests of the company include those of all its stakeholders, including the workers. It therefore requires of directors to balance the interests of all stakeholders when making the decision to retrench. The ethical duties of directors include compulsory compliance with legislation but taking into account the corporate social responsibility of the company. The corporate social responsibility of the company is towards all of its stakeholders, not only the shareholders. It is contended that both the legal and ethical duties of directors require that retrenchments in order to increase profits should be allowed only when the long-term sustainability of the company in the interest of all its stakeholders requires it, as opposed to the short-term interests of only the directors or shareholders.

Identifying sexual harassment in the workplace? Do not forget to remember the Code of Good Practice

by | Oct 6, 2019 | ILJ, ILJ V36 I3

Identifying sexual harassment in the workplace? Do not forget to remember the Code of Good Practice

Authors Anri Botes

ISSN: 2413-9874
Affiliations: Lecturer in Law, North West University
Source: Industrial Law Journal, Volume 36 Issue 3, 2015, p. 1719 – 1747

Abstract

Sexual harassment is strictly prohibited as a form of unfair sex discrimination in the workplace by the Employment Equity Act 55 of 1998 as amended by the Employment Equity Amendment Act 47 of 2013. To ensure proper adjudication of such cases, presiding officers should consider the Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace of 2005 in relevant matters. The code provides the key elements that need to be considered when determining whether certain conduct constitutes sexual harassment. Closer scrutiny of South African case law, however, shows that multiple presiding officers fail properly to take the code into account, causing inappropriate conclusions. By not applying the code to cases of alleged sexual harassment, the facts could be misconstrued, leaving the victim with no protection from sex discrimination and their right to privacy and dignity infringed.