Case Note: Determining the Correct Role for the Concept of Dignity in Unfair Discrimination Claims: A Discussion of Naidoo & others v Parliament of the Republic of SA (2020) 41 ILJ 1931 (LAC):

by | May 24, 2023 | ILJ, ILJ V42 I2

Case Note: Determining the Correct Role for the Concept of Dignity in Unfair Discrimination Claims: A Discussion of Naidoo & others v Parliament of the Republic of SA (2020) 41 ILJ 1931 (LAC)

Author Muyenga Edward Mugerwa-Sekawabe

ISSN: 2413-9874
Affiliations: Graduate LLB Student (University of Cape Town), Justice Dikgang Moseneke Fellow, Legal Writing Center Tutor (University of Cape Town)
Source: Industrial Law Journal, Volume 42 Issue 2, 2021, p. 728 – 735

Abstract

This note considers the dispute regarding the correct interpretation of s 6 of the Employment Equity Act through an examination of the Labour Appeal Court’s decision in Naidoo & others v Parliament of the Republic of SA (2020) 41 ILJ 1931 (LAC). It concludes that the phrase ‘any other arbitrary ground’ of unfair discrimination should be interpreted narrowly by the courts. The note, through examining the Constitutional Court’s decision in Hugo, illustrates that the requirement of the impairment of dignity in cases of unfair discrimination lacks credibility and should, therefore, be rejected. An alternative approach to establishing unfair discrimination is proposed that follows from the ‘correct’ interpretation of Hugo. Lastly, this alternative approach is applied to the facts in Naidoo to demonstrate that the Labour Appeal Court erred in its decision.

Note: Discrimination on an ‘Arbitrary Ground’ and the Right of Access to Justice

by | Apr 23, 2023 | ILJ, ILJ V42 I1

Note: Discrimination on an ‘Arbitrary Ground’ and the Right of Access to Justice

Author Darcy du Toit

ISSN: 2413-9874
Affiliations: Emeritus Professor and Coordinator, Labour Law 4.0 niche area, University of the Western Cape
Source: Industrial Law Journal, Volume 42 Issue 1, 2021, p. 1 – 15

Abstract

In Naidoo & others v Parliament of the Republic of SA the Labour Appeal Court interpreted ‘arbitrary ground’ in s 6(1) of the Employment Equity Act by rejecting a ‘broad’ interpretation (ie the grammatical meaning of the term) and defining it ‘narrowly’ to mean the same as an ‘unlisted’ ground of discrimination. Looking at the judgment through the lens of access to justice, the note observes that the judgment raises a number of questions. These include: (a) the purpose of the amendment to s 6(1) by which ‘arbitrary ground’ was added; (b) the relationship between the concepts of ‘arbitrary ground’ in s 6(1) and s 187(1)(f) of the Labour Relations Act; (c) the application of the principles of legal interpretation to ‘arbitrary ground’; (d) the implications and limits of a ‘broad’ interpretation; (e) the social dimension of the constitutional context; (f) whether discrimination on an ‘arbitrary ground’ is by definition invasive of human dignity; (g) whether a ‘narrow’ interpretation of ‘arbitrary ground’ involves reading an implicit limitation into s 6(1); and case law in which a ‘broad’ approach was adopted. The note seeks to address these questions.

Note: The Impact of the Fourth Industrial Revolution on Workplace Law and Employment in South Africa

by | Apr 23, 2023 | ILJ, ILJ V42 I1

Note: The Impact of the Fourth Industrial Revolution on Workplace Law and Employment in South Africa

Authors Lindani Nxumalo & Carol Nxumalo

ISSN: 2413-9874
Affiliations: Attorney; Honorary Research Fellow, School of Law, University of KwaZulu-Natal; PhD (UKZN); PhD Candidate (UKZN); B Admin (UKZN), B Com Hons (UNISA), M Com (UKZN)
Source: Industrial Law Journal, Volume 42 Issue 1, 2021, p. 16 – 25

Abstract

The rapid technological changes engendered by the fourth industrial revolution necessitate the need for workplaces to re-examine current strategies to ensure that they benefit from the opportunities presented by advanced technology while minimising any risk associated with it. It further requires legislative reform to prepare for technological changes that are associated with the fourth industrial revolution in the workplace. This note explores how technology should be integrated into the world of work but with sound labour relations being maintained. Additionally, it calls for employment law reform consistent with technological advancement and the values of the Constitution.

Note: Sanctity of Contract Prevails Over Force Majeure: The Brand Kitchen Judgment

by | Apr 23, 2023 | ILJ, ILJ V42 I1

Note: Sanctity of Contract Prevails Over Force Majeure: The Brand Kitchen Judgment

Author Richard S Bradstreet

ISSN: 2413-9874
Affiliations: Senior Lecturer in Commercial Law, University of Cape Town
Source: Industrial Law Journal, Volume 42 Issue 1, 2021, p. 26 – 33

Abstract

Employment depends on the continued success of a commercial endeavour, but the profit objective of businesses must give way to the recognition of contractual obligations to employees. Where a change in commercial circumstances gives rise to an inability to operate at a profit, the law of contract mandates that employment obligations must be fulfilled in circumstances falling short of an absolute inability to perform. The Brand Kitchen judgment illustrates the law’s strong recognition of the sanctity of contracts, and the importance of legislative frameworks for restructuring that allow for a departure from strict common law rules relating to impossibility of performance.

Note: Decisions of Specialist Tribunals Deemed Orders of Court: A Reflection on Mantsho v Managing Director of the Municipal Employee Pension Fund & others [2015] ZAGPPHC 408

by | Apr 23, 2023 | ILJ, ILJ V42 I1

Note: Decisions of Specialist Tribunals Deemed Orders of Court: A Reflection on Mantsho v Managing Director of the Municipal Employee Pension Fund & others [2015] ZAGPPHC 408

Author Alex Nair

ISSN: 2413-9874
Affiliations: Attorney; Lecturer Labour Unit, Law Clinic, University of the Witwatersrand; LLB (University of the Witwatersrand)
Source: Industrial Law Journal, Volume 42 Issue 1, 2021, p. 33 – 49

Abstract

The Office of the Pension Funds Adjudicator (OPFA) plays a vital role in the adjudication of disputes that arise in the private pension fund sector by investigating a dispute and issuing a determination. The Pension Funds Act (PFA) deems these determinations orders of a court of law having jurisdiction as if the matter had been adjudicated by such court. The effect of the legislative provision provides those in possession of a determination the opportunity to enforce it through contempt of court proceedings in the face of non-compliance. In Mantsho v Managing Director of the Municipal Employee Pension Fund and Others the court concluded, however, that as a specialist tribunal the OPFA could not grant orders of court as a court of law would because it was not a public judicial officer. As a result, the functionality of the OPFA in our legal system has been rendered uncertain. In order to maintain the credibility of the OPFA these determinations should be treated as orders of a court of law. The court’s strict reading of the PFA and application of the differentiation between courts of law and specialist tribunals incorrectly narrows the interpretation of the legal fiction created by the PFA. This note will explore the underpinnings of this concept and reflect on judgments where it has been appropriately utilised. In addition, it will analyse the court’s judgment in order to illustrate why the failure to utilise the concept of a legal fiction properly in relation to the determinations of the OPFA was a missed opportunity. Further, this note will argue that the PFA in its current form does not adequately provide for the enforcement of determinations and therefore should be amended to introduce a process of certification whereby determinations of this nature may, on behalf of an aggrieved party, be certified by the OPFA to facilitate enforcement through contempt of court proceedings.

Reflections on Marginalised Workers and the Role of Trade Unions in the Changing World of Work

by | Apr 23, 2023 | ILJ, ILJ V42 I3

Reflections on Marginalised Workers and the Role of Trade Unions in the Changing World of Work

Authors William Manga Mokofe & Stefan van Eck

ISSN: 2413-9874
Affiliations: Senior Lecturer, Pearson Institute of Higher Education; Professor of Labour Law, University of Pretoria
Source: Industrial Law Journal, Volume 41 Issue 3, 2021, p. 1365 – 1389

Abstract

The world of work is changing rapidly. The globalisation of economies and brisk technological changes severely impact all nations. These changes have had a significant impact on traditional employer-employee relations. Labour and social security protections for workers are being eroded through informalisation, casualisation and externalisation. Added to this, new forms of platform work have been established during the fourth industrial revolution that have had a disruptive effect on the notion of secure and indefinite employment. Collective bargaining and trade unions have in the past played an important role in protecting workers’ rights. This contribution interrogates the role of trade unions and collective bargaining in the changed world of work and considers strategies that unions should consider implementing. The article concludes by suggesting that the solution to problems associated with non-standard and platform work may not lie in the bargaining power of trade unions. Governments will have to step in to fill the gaps in order to protect persons involved in new forms of work.