COVID-19 Mandatory Vaccinations in the Workplace: A Developing Jurisprudence

by | May 25, 2023 | ILJ, ILJ V43 I4

COVID-19 Mandatory Vaccinations in the Workplace: A Developing Jurisprudence

Authors Jeremy Phillips, Amogelang Makuwa & Shamima Gaibie

ISSN: 2413-9874
Affiliations: Candidate Attorney, Cheadle Thompson & Haysom Inc (CTH); Senior Associate, CTH; Senior Director, CTH
Source: Industrial Law Journal, Volume 43 Issue 4, 2022, p. 2163 – 2188

Abstract

The COVID-19 pandemic has left an indelible mark on the world. No facet of society has been left unscathed, including the law. Prevailing medical opinion is that the best way to protect against COVID-19 in the future is through mass population vaccination. As a result, employers the world over are having to make the difficult decision whether to implement a mandatory COVID-19 vaccination policy for employees. However, in South Africa there has been no definitive pronouncement on the lawfulness of such a policy, and how it may be enforced. Instead, the Labour Court, the Commission for Conciliation, Mediation and Arbitration (CCMA) and bargaining councils have been left to grapple with the question in a piecemeal fashion as each new case is referred. This article seeks to survey pre-existing precedent and the various judgments and awards delivered thus far on mandatory vaccination to determine the legality of a COVID-19 vaccination mandate and how it may be lawfully enforced in the workplace.

The Use of Contractual Recourse in Dismissal Disputes: Settling the Dilemma

by | May 25, 2023 | ILJ, ILJ V43 I4

The Use of Contractual Recourse in Dismissal Disputes: Settling the Dilemma

Author Kamalesh Newaj

ISSN: 2413-9874
Affiliations: Senior Lecturer, Department of Mercantile Law, University of Pretoria
Source: Industrial Law Journal, Volume 43 Issue 4, 2022, p. 2189 – 2218

Abstract

For over twenty years the courts have been grappling with the question whether employees have common law contractual recourse to challenge disputes that stem from their dismissals. There have been two schools of thought. The one promotes the use of both the statutory recourse — the Labour Relations Act (LRA) — and common law contractual recourse on the basis that the LRA has not expressly abolished contractual recourse and the Basic Conditions of Employment Act (BCEA) endorses its use. The other discredits the continued use of contractual recourse on the basis that two parallel systems of law create uncertainty and fail to respect the specialised framework that has been promulgated in the LRA. This has resulted in divergent approaches being advocated by the courts. The conflicting decisions of the Constitutional Court exacerbate the uncertainty. In some cases, the use of the statutory framework has been endorsed, while in the recent Constitutional Court decision of Baloyi v Public Protector & others a different approach was followed. This article seeks to analyse the development of the law on the permissibility of contractual recourse in disputes stemming from dismissal that has now culminated in the decision of Baloyi.

Note: Preferential Procurement Paused by the Constitutional Court: Reflections on B-BBEE Policies and Minister of Finance v Afribusiness NPC 2022 (4) SA 362 (CC)

by | May 25, 2023 | ILJ, ILJ V43 I4

Note: Preferential Procurement Paused by the Constitutional Court: Reflections on B-BBEE Policies and Minister of Finance v Afribusiness NPC 2022 (4) SA 362 (CC)

Authors Stefan van Eck & Thiruneson Padayachy

ISSN: 2413-9874
Affiliations: Professor of Labour Law, Department of Mercantile Law, University of Pretoria, South Africa; Lecturer, Department of Mercantile Law, University of Pretoria, South Africa
Source: Industrial Law Journal, Volume 43 Issue 4, 2022, p. 2219 – 2236

Abstract

In Minister of Finance v Afribusiness NPC 2022 (4) SA 362 (CC), [2022] ZACC 4 (Afribusiness (CC)) the Constitutional Court confirmed the setting aside of the Preferential Procurement Regulations, 2017 (the 2017 regulations). This decision temporarily halted the processes in the public service before they were restarted after a follow-up decision by the same court in Minister of Finance v Sakeliga NPC (previously known as Afribusiness NPC) and Others 2022 (4) SA 401 (CC), [2022] ZACC 17. In a closely split decision, the Constitutional Court judges in Afribusiness (CC) adopted two different approaches. The authors argue that the majority in Afribusiness (CC) adopted a technically correct approach in reaching its decision. However, they opine that the decision is yet another indication of the disjointed nature of South Africa’s broad-based black economic empowerment (B-BBEE) policies. The contribution also highlights a number of structural shortcomings that are inherent in legislation that seeks to give effect to the idealistic goals of economic transformation in the country. In their conclusion, the authors reflect on the way forward and raise unanswered questions that may still need to be addressed to enhance the effective and appropriate implementation of economic adjustment in the country.

Note: Private Acts in Public Spaces: The Impact of Social Media on the Workplace and the Business of the Employer

by | May 25, 2023 | ILJ, ILJ V43 I4

Note: Private Acts in Public Spaces: The Impact of Social Media on the Workplace and the Business of the Employer

Author Simphiwe Phungula

ISSN: 2413-9874
Affiliations: Senior Lecturer, Department of Commercial Law, University of Cape Town
Source: Industrial Law Journal, Volume 43 Issue 4, 2022, p. 2237 – 2250

Abstract

Social media in the workplace directly affects the employer-employee relationship. While employees have rights to privacy and freedom of expression, their social media misconduct both on and off duty has been sanctioned by dismissal or suspension, especially where the conduct impacts adversely on an employer’s business. Such misconduct may extend to former employees and independent contractors, and includes third-party posts. Public pressure via social media commentary poses a particular challenge for employers dealing with social media misconduct. This note critically analyses social media pressure, and the factors which an employer should consider in order to ensure a fair outcome when sanctioning an employee or others closely associated with its business for such misconduct.