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.

The Employment Equity Amendment Bill B14B – 2020: Innovating towards Equity or Kicking the Can down the Road?

by | Jan 13, 2024 | ILJ, ILJ V44 I1

The Employment Equity Amendment Bill B14B – 2020: Innovating towards Equity or Kicking the Can down the Road?

Author Debbie Collier

ISSN: 2413-9874
Affiliations: Professor of Law, Centre for Transformative Regulation of Work, University of the Western Cape
Source: Industrial Law Journal, Volume 44 Issue 1, 2023, p. 1 – 27
https://doi.org/10.47348/ILJ/v44/i1a1

Abstract

The Employment Equity Amendment Bill introduces significant changes to the regulatory framework for affirmative action by, among other amendments, shifting the responsibility for determining employment equity targets from workplace to sectoral level. It also operationalises s 53 of the Employment Equity Act (EEA) and employers will need a certificate of compliance from the Minister confirming compliance with the EEA, including the sector targets, before being permitted to contract with the state.
Notwithstanding merit in the idea of a sectoral (contextual) approach to affirmative action and the value of incentivising compliance, considered in terms of its provisions and omissions the Bill is found wanting. The EEA is a fundamental tool in the struggle against workplace discrimination and systemic inequality — crucial for transformation — but the design of the Bill suggests a high-handed and partisan approach and a missed opportunity to adjust course and affirm and implement international human rights law and principles. However, this is a qualified and incomplete assessment, as the sectoral numerical targets have yet to be published, and it remains to be seen whether these, and the associated framework, will reflect a more nuanced and context sensitive approach to the design and implementation of affirmative action measures than currently anticipated. That would be a most welcome development.

Towards the Practical Realisation of the Concept of Equal Pay for Equal Work in Ghana: Some Comparative Lessons from South Africa and the United Kingdom

by | Jan 13, 2024 | ILJ, ILJ V44 I1

Towards the Practical Realisation of the Concept of Equal Pay for Equal Work in Ghana: Some Comparative Lessons from South Africa and the United Kingdom

Authors Theophilus Edwin Coleman & Letlhokwa George Mpedi

ISSN: 2413-9874
Affiliations: Postdoctoral Research Fellow, Centre for International and Comparative Labour and Social Security Law, Faculty of Law, University of Johannesburg, South Africa; Research Associate, Research Centre for Private International Law in Emerging Countries, Faculty of Law, University of Johannesburg, South Africa; Professor of Labour and Social Security Law and Vice-Chancellor and Principal (Designate), University of Johannesburg, South Africa
Source: Industrial Law Journal, Volume 44 Issue 1, 2023, p. 28 – 50
https://doi.org/10.47348/ILJ/v44/i1a2

Abstract

The Constitution of Ghana and the Labour Act provide that all workers in Ghana are entitled to equal pay/remuneration for equal work. The practical realisation of equal pay for equal work is also a global goal embodied in key international instruments. Notwithstanding this, the meaning and scope of the concept have proven somewhat difficult to understand. Some countries have promulgated legislation and statutory guidelines to provide clarity. In Ghana, the operational aspects of the concept have not yet been fully explored. In addition, Ghanaian courts have not been approached to pronounce on its scope. While the government of Ghana has introduced some wage determination structures to give effect to the concept, unfortunately these apply only to public-sector workers. This article seeks to advance arguments on the practical realisation of equal pay for equal work or work of equal value in the Constitution and Labour Act. It discusses the meaning of the concept under international law. It also draws some legislative and judicial lessons from the legal position in South Africa and the United Kingdom on the various approaches to equal pay claims. The article suggests that Ghana take legislative steps to provide clarity and a comprehensive framework to govern the various aspects of equal pay for equal work and work of equal value.