Case Note: When does the use of race as a descriptor constitute misconduct in the workplace?
Authors L Nxumalo
Source: Industrial Law Journal, Volume 40 Issue 1, 2019, p. 60 – 70
Source: Industrial Law Journal, Volume 40 Issue 1, 2019, p. 60 – 70
Affiliations: Associate Lecturer, University of the Western Cape; Lecturer, University of the Western Cape
Source: Industrial Law Journal, Volume 40 Issue 1, 2019, p. 41 – 59
Depression is a mood disorder that negatively affects the way in which a person feels. This can ultimately impact on an employee’s ability to work, and often results in extensive periods of absenteeism. Individuals who suffer from depression are frequently reluctant to share their knowledge of illness due to continuing societal prejudice around issues of mental health, and specifically depression. Fears of being subjected to unfair discrimination or ridicule because of depression also often contribute to the decision by employees not to disclose their mental health status to employers and/or colleagues. The labour courts in South Africa have largely tendered two different views on how employers should approach depression in the workplace. The first view holds that depression should be approached as an incapacity ill-health issue, while the second view argues that depression is more appropriately to be approached as part of disability protection for purposes of employment law. This article will discuss the general protection of people with disabilities in the workplace, and then investigate where depression could best fit into this overall scheme. This will include examining the decisions to date by the South African labour courts on the issue of depression, and what lessons could perhaps be learnt from the way in which the United Kingdom approaches depression in the workplace.
Affiliations: Senior Lecturer, University of KwaZulu-Natal, Pietermaritzburg
Source: Industrial Law Journal, Volume 40 Issue 1, 2019, p. 26 – 40
Generally, when witnesses give evidence their identities are known to all, and they are physically present at the hearing venue. They give oral evidence that may be challenged in cross-examination, and their demeanour can be scrutinised by the presiding officer to assist in gauging the witnesses’ credibility. There are some exceptions to these general rules though, and this article considers two of them. The first exception is where witnesses present their evidence in camera and the second where evidence is given remotely via video-conference facilities. In this article I consider, inter alia, the developments in our civil courts and in the various statutory labour dispute resolution forums where witnesses have been allowed to testify via technology, notably video-conferencing software, from a location which is geographically remote from the court or arbitration room. I note that this trend is consistent with developments in the rest of the world, and discuss a recent judgment of the High Court where the judge commented that South African law was lagging behind foreign jurisdictions as it had not yet developed a statutory framework for remote witness testimony. In this article I consider the pros and cons of giving evidence by way of video-conference facilities, against the background of the types of statutory frameworks for video-link evidence that exist elsewhere. I also discuss the rules regarding giving evidence in camera, and suggest that allowing a witness who has been granted permission to testify in camera to do so from a safe, secret location by way of a video link may provide an additional layer of protection for that witness.
Affiliations: Professor of Commercial Law at the University of Cape Town; Lecturer in Management Studies at the University of Cape Town
Source: Industrial Law Journal, Volume 40 Issue 1, 2019, p. 12 – 25
The Labour Laws Amendment Bill, a Private Member’s Bill, has finally been passed by Parliament and assented to by the President after a wait of several years. The primary aim of the legislation is to provide that an employee, who is a parent of a child, is entitled to at least ten consecutive days’ parental leave. This is expressed in a gender-neutral way and is intended for the parent who is not the primary nurturer. Section 27 of the BCEA is amended so that family responsibility leave will no longer apply when a child is born. In this article four main questions are posed: (1) Do the provisions promote gender equality? (2) Are the provisions non-discriminatory? (3) Will the inclusion of paternity leave rights result in utilisation? and (4) Does the proposed legislation take in account the African context? Our analysis suggests that while the amendments aim to promote gender equality, there remain concerns that as they stand they are discriminatory. The provision of increased benefits for traditional and atypical family structures is a necessary change, albeit the distribution of leave benefits is unequal and cannot be shared. Additionally, while it is not uncommon for leave entitlements to be paid according to the UIF, the practical implications of this in a developing country will result in some families being disadvantaged. As for the utilisation of parental leave rights, we have noted that there are warnings from other countries that employers need to be supportive of parental leave in order to combat perceived disadvantages in taking such leave.
Affiliations: Emeritus Professor and Coordinator, Labour Law 4.0 niche area, Faculty of Law, University of the Western Cape
Source: Industrial Law Journal, Volume 40 Issue 1, 2019, p. 1 – 11
Disruptive technological change, informalisation of work and deepening socio-economic inequality have affected developed and developing countries in recent decades. The ‘fourth industrial revolution’, involving the proliferation of digitalisation, automation, robotics and artificial intelligence, is accelerating the process by creating space for new forms of irregular work. The digital platform economy, epitomised by online providers of goods and services such as Uber, represents a significant stage in this development. Commercial platforms have gained ground by making possible the delivery of goods and services with a minimum of infrastructure and a maximum of flexibility. In practice, if not in principle, this lends itself to the negation of workers’ rights through classifying workers as ‘independent contractors’ even when they are de facto employees, thus posing new challenges for labour law. The article acknowledges the transformative potential of the platform economy as well as the threat it presents to social justice. It examines three responses from the standpoint of reconciling technological advance with the advancement of social justice. The first is the ongoing fight against disguised employment in the form of legal claims by platform workers to be classified as ’employees’ in order to exercise labour rights. The second is an international campaign for the extension of appropriate rights to all workers on commercial platforms, regardless of their contractual status. The third is the development of an alternative paradigm based on worker ownership or collective ownership of platforms, strongly associated with aspirations for social justice. The article considers the strengths and weaknesses of each of these responses. It reflects on their legal and practical implications in light of current technological trends and compatibility with ongoing scientific advance. A possible development, it suggests, is that of ‘convergence’ between the (dominant) commercial platform sector and the aspirations for social justice embodied in the (marginal) collective sector: progressive transformation of the commercial sector, including the establishment of basic rights for all workers, could narrow the gap, giving rise to hybrid forms of enterprise incorporating sustainable features of both. In this process, the promotion of social justice is seen as a precondition for socio-economic sustainability.