Unfair Discrimination on the Ground of Family Responsibility

by | May 25, 2023 | ILJ, ILJ V43 I2

Unfair Discrimination on the Ground of Family Responsibility

Author Wilhelmina Germishuys-Burchell

ISSN: 2413-9874
Affiliations: Senior Lecturer, University of South Africa; BCOM LLB (UP), LLM (UNISA)
Source: Industrial Law Journal, Volume 43 Issue 2, 2022, p. 751 – 778

Abstract

At a time when dual-earner households are the norm, South African workplaces continue to be structured around the idea of family as the nuclear family and the gendered and obsolete assumption that workers come without family responsibilities. Despite the clear duty that labour legislation, including recent amendments, places on employers to accommodate employees’ efforts to balance work with family responsibilities, the failure to do so remains a prevalent form of unfair discrimination in South African workplaces today. The potential of family responsibility as a discriminatory ground remains largely unutilised. The article seeks to investigate what seems to be a reluctance by employees to interrogate family-hostile working conditions. It also considers issues relating to family responsibility discrimination and its intersection with other discriminatory grounds. In addition, the article also briefly considers international and foreign comparative developments that may provide some valuable insights into potential issues associated with family responsibility jurisprudence of relevance for South Africa.

Case Note: The Hybrid Contract of Employment: A Tale of (Mostly) Unreported Judgments

by | May 25, 2023 | ILJ, ILJ V43 I2

Case Note: The Hybrid Contract of Employment: A Tale of (Mostly) Unreported Judgments

Author Rochelle le Roux

ISSN: 2413-9874
Affiliations: Professor, Department of Commercial Law, University of Cape Town
Source: Industrial Law Journal, Volume 43 Issue 2, 2022, p. 779 – 786

Abstract

In Buthelezi v Municipal Demarcation Board the Labour Appeal Court (LAC) held that it is per se substantively unfair to retrench an employee who is employed on a truly fixed-term contract. This note seeks to establish whether the same applies in the case of the termination of a hybrid contract of employment (ie a fixed-term contract of employment that provides for termination on notice during the term of the contract).

Some Issues in Relation to the Incidence of Common Law Fiduciary Accountability in Relationships of Employment

by | May 25, 2023 | ILJ, ILJ V43 I1

Some Issues in Relation to the Incidence of Common Law Fiduciary Accountability in Relationships of Employment

Author Kathy Idensohn

ISSN: 2413-9874
Affiliations: Department of Commercial Law, Faculty of Law, University of Cape Town
Source: Industrial Law Journal, Volume 43 Issue 1, 2022, p. 1 – 16

Abstract

This article considers three inter-connected issues relating to the incidence of common law fiduciary duties in relationships of employment: (1) whether employment generally ought to be recognised as a class of ‘fiduciary relationship’; (2) whether all employees owe fiduciary duties to their employers; and (3) the basis on and circumstances in which employees are bound by such duties. It argues that there is little purpose in approaching the analysis of the existence of fiduciary accountability in employment on a generalised class basis; that such accountability is in all cases fact-based and dependent upon the circumstances of the case; that employment is not an inherently fiduciary relationship; that not all employees owe fiduciary duties to their employers; and that they are only bound by such duties where there is justified reliance on the part of the employer on the undivided loyalty of that employee. It then considers some of the factors emphasised by the courts as relevant for the purposes of determining whether fiduciary duties attach to an employee.

Employers’ Responses to Alcohol Addiction in South Africa: The Role of the Legislative Framework

by | May 25, 2023 | ILJ, ILJ V43 I1

Employers’ Responses to Alcohol Addiction in South Africa: The Role of the Legislative Framework

Author Betina Fleming

ISSN: 2413-9874
Affiliations: Attorney; LLB, LLM, University of the Witwatersrand
Source: Industrial Law Journal, Volume 43 Issue 1, 2022, p. 17 – 39

Abstract

Alcohol addiction in South Africa is a growing concern affecting many individuals, both professionally and personally. The impact of substance abuse on the workplace is immense and as such there is a need for employers to understand their roles, rights, and obligations in dealing with employees suffering from alcohol addiction. This article considers the definition of substance abuse, how it manifests itself in the workplace, and how employers can establish whether an employee is alcohol dependent. The article addresses the differences between misconduct in respect of social drinkers and incapacity in respect of employees suffering from alcohol addiction. It discusses the views of the International Labour Organisation (ILO) and provides an overview of the South African legislative framework under the Labour Relations Act, the Employment Equity Act, and the Prevention of and Treatment for Substance Abuse Act. The article goes on to identify the gaps between the ILO’s recommendations and South African law and suggests mechanisms to close these gaps. If South Africa is to take steps to guard against alcohol abuse and protect the rights of employees, the introduction of a framework to assist employers in managing alcohol addiction is paramount. Ensuring synergy between the ILO recommendations and South African legislation is the first step.

Football Lores: The Playing Field of the Dispute Resolution Chamber of the National Soccer League

by | May 25, 2023 | ILJ, ILJ V43 I1

Football Lores: The Playing Field of the Dispute Resolution Chamber of the National Soccer League

Author Saleem Seedat

ISSN: 2413-9874
Affiliations: Part-time lecturer, University of the Witwatersrand, Johannesburg. Past chairperson of the Dispute Resolution Chamber (DRC) of the National Soccer League (NSL) with its seat in Johannesburg
Source: Industrial Law Journal, Volume 43 Issue 1, 2022, p. 40 – 62

Abstract

This article outlines the history of the game of football and examines the determined effort in recent times by both FIFA and the national football associations to regulate football not only through rules but by establishing dispute resolution mechanisms. In South Africa, the professional footballing authority established an independent forum, the Dispute Resolution Chamber, to consider all disputes in the football environment. In complying with its mandate as the arbiter of footballing disputes, the chamber developed jurisprudence on issues that are endemic to football. While it reiterated the rights of players, it did not shirk its responsibility to the clubs by finding against those players who were errant. The article examines the challenges to its authority and the key issues with which it was faced in attempting to achieve its goal of establishing a body of consistent, reasonable, and just jurisprudence.

Note: Skills Development Levies: Contestation and Court Challenges

by | May 25, 2023 | ILJ, ILJ V43 I1

Note: Skills Development Levies: Contestation and Court Challenges

Author Dawn Norton

ISSN: 2413-9874
Affiliations: Director of Employment Law at Mkhabela Huntley Attorneys; BA (Hons), LLB, LLM (Witwatersrand)
Source: Industrial Law Journal, Volume 43 Issue 1, 2022, p. 63 – 73

Abstract

The Skills Development Act 97 of 1998 aims to develop labour force skills through a skills levy on employers. Under the Department of Labour, employers received a proportion of the levy as a mandatory training grant. This proportion decreased substantially in 2009 when the Department of Higher Education and Training (DHET) took charge of skills development. It leveraged the funds for projects primarily in the post schooling/tertiary sector, negatively affecting labour force skills development. The DHET ignored a Labour Appeal Court decision in 2019 declaring the relevant regulations invalid and irrational. This note argues that the skills development levy has been impermissibly appropriated by the DHET for a purpose outside the parameters originally established by the legislature.

Note: The Impact of the Covid-19 Pandemic on Labour Arbitration in Ontario, Canada

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

Note: The Impact of the Covid-19 Pandemic on Labour Arbitration in Ontario, Canada

Author Christopher Albertyn

ISSN: 2413-9874
Affiliations: Arbitrator, Toronto, Canada
Source: Industrial Law Journal, Volume 42 Issue 4, 2021, p. 2055 – 2065

Abstract

The note describes the workplace dispute resolution structures in Ontario, Canada, with an account of the role of arbitration in workplace dispute settlement. The focus is on the response of arbitrators, and union and employer counsel to the Covid-19 pandemic. This includes a discussion of procedural developments for the hearing of cases and how some of the substantive pandemic issues have been dealt with. Videoconferencing emerged as a significant method of arbitration. Its long-term impact is discussed, with an assessment of the pros and cons of arbitrations being conducted virtually, and a summary of good practices in videoconference hearings.

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.