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.