Dismissals for Cannabis Use: Determining Substantive Fairness

by | Jan 14, 2024 | ILJ, ILJ V44 I2

Dismissals for Cannabis Use: Determining Substantive Fairness

Author Kamalesh Newaj

ISSN: 2413-9874
Affiliations: Senior Lecturer, Department of Mercantile Law, University of Pretoria
Source: Industrial Law Journal, Volume 44 Issue 2, 2023, p. 683 – 701
https://doi.org/10.47348/ILJ/v44/i2a1

Abstract

Since the Constitutional Court’s legalisation of the use of cannabis in private, dismissals for workplace infractions arising from testing positive for cannabis are on the rise. Such dismissals have been justified by employers on the basis of zero-tolerance policies. The standpoint being endorsed by the courts is that as long as the employer can justify the need for a zero-tolerance approach, dismissal is the automatic default position for the breach of the workplace rule. While the law on the workplace implications for cannabis use is still in its infancy, there is a substantive body of law, applicable to cannabis use, on dismissals for alcohol use in which zero-tolerance policies are also applied. Surprisingly, these established principles in respect of alcohol use have not been engaged with by the courts in dealing with cannabis related infractions. This article seeks to evaluate the recent court decisions and to determine whether the legal principles that are developing accord with the legislative framework and judicial requirements in determining the substantive fairness of a dismissal.

(Im)mobility as Group Disadvantage: Are Vehicle Requirements in Candidate Attorney Recruitment Justifiable?

by | Jan 14, 2024 | ILJ, ILJ V44 I2

(Im)mobility as Group Disadvantage: Are Vehicle Requirements in Candidate Attorney Recruitment Justifiable?

Author Davy Rammila

ISSN: 2413-9874
Affiliations: Senior Lecturer, University of South Africa, LLB, LLM (Johannesburg), LLD Candidate (Johannesburg)
Source: Industrial Law Journal, Volume 44 Issue 2, 2023, p. 702 – 723
https://doi.org/10.47348/ILJ/v44/i2a2

Abstract

Nearly three decades since the fall of apartheid, South Africa, to a considerable extent, has not achieved the level of transformation desired in respect of the attorney’s profession. Efforts at encouraging or supporting diversity have not been helped by a recent trend which has transformed the entry requirements for the profession from those based on educational qualifications and equity to those based on [unequal] economic and social privilege. As the number of black graduates grew, recruiters increasingly required applicants for practical vocational training contracts to own, or at least have access to, motor vehicles as a minimum requirement for eligibility. This contribution evaluates the validity of these requirements within the existing employment law framework and establishes that socio-economic circumstances affecting ethnic majorities of South Africans operate against the imposition of such requirements. The contribution acknowledges the amended rules introduced by the Legal Practice Council in 2021 to address the issue. However, it argues that the enforcement mechanisms of the council have at times proven inadequate. It suggests that such shortcomings in enforcement emphasise the continued importance of labour law in resolving employment disputes within the profession. It concludes that vehicle requirements are incapable of justification under the available defence of the inherent requirement of the job in terms of the Employment Equity Act.

Case Notes: The Correctness Standard of Review

by | Jan 14, 2024 | ILJ, ILJ V44 I2

Case Notes: The Correctness Standard of Review

Author Anton Myburgh SC

ISSN: 2413-9874
Affiliations: Senior counsel at the Johannesburg Bar; Adjunct Professor of Law at Nelson Mandela University
Source: Industrial Law Journal, Volume 44 Issue 2, 2023, p. 724 – 733
https://doi.org/10.47348/ILJ/v44/i2a3

Abstract

The traditional conceptualisation is that an appeal is about the correctness of the decision, while a review is about its justifiability. However, there are many decisions and actions by commissioners of the Commission for Conciliation, Mediation and Arbitration that must meet the standard of correctness and are reviewable if they do not. This is known as correctness review. This note examines when correctness review applies, and when it does not.

Case Notes: Restraint of Trade Clauses: Anything New from the Courts?

by | Jan 14, 2024 | ILJ, ILJ V44 I2

Case Notes: Restraint of Trade Clauses: Anything New from the Courts?

Author Monray Marsellus Botha

ISSN: 2413-9874
Affiliations: Professor, Private Law, Faculty of Law, University of Johannesburg
Source: Industrial Law Journal, Volume 44 Issue 2, 2023, p. 734 – 746
https://doi.org/10.47348/ILJ/v44/i2a4

Abstract

Restraint of trade agreements are not new. Recently the courts have been faced with deciding various challenging issues in this respect, such as whether a pandemic has an impact on the enforceability of a restraint, and whether a restraint of trade should be amended based on public policy which imports values of fairness, reasonableness, and justice. This note revisits the general principles governing restraint of trade agreements as a background to examining the latest trends in such cases.