South African Labour Law Research Articles

Dignity and the Purpose of Labour Law

The article advances the notion in the context of South African labour law that the purpose of labour law is to protect the human dignity of employees. In doing so, it deviates from the accepted idea that the purpose of labour law in South Africa is to restrict the power of employers to impose their will in the employment relationship so that employees are treated fairly. Dignity is furthermore integrated and conceptualised in a manner that enhances its substantive use in labour law. This is achieved by adjusting the test for fairness of labour practices and by presenting a dignity framework. The framework consists of two dignity models: the ‘same-kind dignity model’ and the ‘self-fulfilment dignity model’. The framework furthermore harnesses the social justice rules that are applied in South African labour law to resolve the perceived tension between individualistic and communitarian facets of dignity.

Dignity and the Purpose of Labour Law

The article advances the notion in the context of South African labour law that the purpose of labour law is to protect the human dignity of employees. In doing so, it deviates from the accepted idea that the purpose of labour law in South Africa is to restrict the power of employers to impose their will in the employment relationship so that employees are treated fairly. Dignity is furthermore integrated and conceptualised in a manner that enhances its substantive use in labour law. This is achieved by adjusting the test for fairness of labour practices and by presenting a dignity framework. The framework consists of two dignity models: the ‘same-kind dignity model’ and the ‘self-fulfilment dignity model’. The framework furthermore harnesses the social justice rules that are applied in South African labour law to resolve the perceived tension between individualistic and communitarian facets of dignity.

A Delicate Balancing Act: Does the Majoritarianism Approach in South African Labour Law Infringe the Right to Freedom of Association?

A Delicate Balancing Act: Does the Majoritarianism Approach in South African Labour Law Infringe the Right to Freedom of Association?

The employment status of uber drivers

South African labour law draws a distinction between employees, who dedicate their full-time endeavours to the service of a particular employer, and independent contractors, who perform specific projects for a customer. Employees enjoy a wide range of statutory rights such as the right to not be unfairly dismissed, but such protection does not extend to independent contractors. In the advent of the digital era, many people have turned to online platforms to secure their incomes. For example, some have turned to the Uber platform to drive customers seeking transport by means of the Uber application. Such drivers are, in terms of our law, not regarded as employees of Uber, but as independent contractors and are thereby precluded from the statutory protection which extends to employees. This position is demonstrated by an analysis of Uber South Africa Technology Services (Pty) Ltd v NUPSAW & Others (C449/17) [2018] ZALCCT 6. This case is further compared to a similar decision in the United Kingdom, Uber BV and Others v Aslam and Others [2021] UKSC 5, where protection was afforded to the Uber drivers. Suggestions are made for legal reform, in order to align the prevailing position in South Africa with the approach in the United Kingdom, thereby extending legal protection as employees to uber drivers.

The Politics of the Right to Strike in Zimbabwe since the Advent of the New Constitution in 2013

The year 2013 was important in the history of labour relations in Zimbabwe as it ushered in the country’s Constitution which introduced labour rights under its Declaration of Rights. The article discusses constitutional protection of the right to strike under section 65 of the Constitution of Zimbabwe. It further explores this constitutional right to strike and its effect on both private-sector and public-sector employees. Further, it discusses the scope of the right to strike in terms of the Labour Act, which largely applies to private-sector employees. This is because Zimbabwe has a two-tier labour relations system consisting of private-sector and public-sector employees. Public-sector employees derive their right to strike directly from the Constitution. To put the right to strike into its proper context, international standards on this right are briefly discussed. Important lessons are also drawn from South African labour law and practice since South African constitutional provisions on the right to strike are almost similar to those of Zimbabwe. The article then proceeds to highlight how the right to strike has been linked or can be used in some instances to fulfil political objectives. It also highlights how the State may view the right to strike with suspicion. Finally, recommendations are made on how the right to strike can be improved in both law and practice so that it fulfils its intended objectives of achieving better working conditions for employees at the workplace.

The Right to Freedom of Association for Public and Private Sector Employees in Zimbabwe in the Context of International Labour Organisation Standards

This article deals with the right of employees to freedom of association in Zimbabwe. It adopts a comparative analysis with the International Labour Organisation’s (ILO) standards on freedom of association. In order to achieve this, lessons are drawn from South African labour law and practice since Zimbabwe’s constitutional provisions on freedom of association are similar to those of South Africa. It begins by discussing important sources of the right to freedom of association under the ILO framework which includes relevant Conventions. Zimbabwe adopted a new constitution in 2013 which incorporates the right of employees to freedom of association and all its components under the Declaration of Rights. This is a significant point of departure in analysing the extent to which Zimbabwe complies with its ILO obligations on freedom of association. The constitution applies to both public and private sector employees. However, pieces of legislation which give effect to the constitutional right to freedom of association create a two-tier labour relations system where public sector employees have different laws which govern them. On the other hand, private sector employees fall under the Labour Act. This necessitates a separate consideration of the key provisions which have a direct impact on the enjoyment of the right of employees to freedom of association in Zimbabwe in order to test their constitutionality.

AFFIRMATIVE ACTION: ONLY A SHIELD? OR ALSO A SWORD? Harmse v City of Cape Town (2003) 24 ILJ 1130 and Dudley v City of Cape Town (2004) 25 ILJ 305 (LC)

The Employment Equity Act 55 of 1998 (hereinafter “the EEA”) which gives more detailed content to the right of equality enshrined in section 9 of the Constitution of South Africa, compels employers to promote equality in the workplace by eradicating unfair discrimination in employment policies and practices. Unfair discrimination against any employee, whether directly or indirectly, based on that employee’s race, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age,disability, religion, HIV status, conscience, belief, political opinion, culture, language or birth is prohibited (s 6(1)). However, it is not unfair discrimination to take affirmative action measures consistent with the purpose of the EEA (s 6(2)). If an employee is thereforedifferentiated against due to affirmative action measures of the employer, such an employee will not succeed in an action based on unfair discrimination, provided that the employer acted within the permissible bounds of affirmative action. It has in fact been held by the South African Constitutional Court that any action in accordance with permissible affirmative action policies does in fact not amount to unfair discrimination (Minister of Finance v Van Heerden (2004) 25 ILJ 1593 (CC)). Affirmative action is therefore raised by employers as a justification for apparent unfair discrimination. If the justification is successful the particular court will conclude that there was no unfair discrimination. Affirmative action in this context is used as a shield, not a sword (see Dupper and Garbers“Commentary: Affirmative Action” in Thompson and Benjamin (eds) South African Labour Law Vol 1 (2002) 1-59). But can affirmative action be used as a sword? Can an employee (as envisaged in the EEA) argue that he or she is a victim of discrimination because his or her employer did not apply affirmative action measures consistent with the EEA? Is such a person also the victim of unfair discrimination? Can such a person base an application on section 6 of the EEA? This question may seem strange (see Grogan Dismissal, Discrimination and Unfair Labour Practice (2005) 93) and will in all probability not arise where only formal discrimination is at issue. In South Africa, however, where the ultimate goal is the achievement of substantive equality however, the issue needs consideration. Substantive equality can only be achieved if the distortions created by apartheid are removed and employers are compelled to give preference, at least for a while, to members of groups that were disadvantaged by unfair discrimination in the past. This question was addressed in two cases (Harmse v City of Cape Town (2003) 24 ILJ 1130 and Dudley v City of Cape Town (2004) 25 ILJ 305 (LC)). Both cases brought were against the City of Cape Town in the Labour Court. The purpose of this note is to analyse and evaluate the opposing judgments in these cases.

Investigating the Possibility of Suspending or Terminating a Strike on Account of Violent Conduct: Transplanting Lessons from Australia

South Africa has a history of violent industrial strikes, with authorities seemingly unable to exert control. The existing remedies in the form of an interdict and advisory arbitration awards do not appear to address violence during strikes. Violent and lengthy strikes affect members of the public and have long-term effects on the economy, resulting in loss of employment and poverty. Since South Africa does not have the legal mechanisms to deal with or curb violent strikes, this article submits that lessons could be drawn from foreign law on how to deal with these strikes. In this article, Australia is the foreign jurisdiction from which lessons are drawn. This article commences with a comparative analysis of industrial action between Australia and South Africa to answer the question of whether violent strike action is unique to South Africa. The article establishes that the Fair Works Commission (FWC): Australia’s National Workplace Relations Tribunal can suspend or terminate industrial action that is characterised by violence. It then suggests that part of Australian labour law could be transplanted into South African labour law to combat strike-related violence. The article suggests that the Labour Relations Act 66 of 1995 (LRA) should be amended to include a provision that will empower the Labour Court to suspend or terminate industrial action once it turns violent, thus benefitting the economy and preventing job losses.

Aantekeninge: An update of recent labour law developments from South African courts 2022

This contribution summarises and considers recent South African labour law cases from June 2021 to May 2022. It focuses on several important decisions handed down by South African courts on a range of labour law matters. The cases addressed here were chosen because they establish new standards, expand on existing ones or establish new legal tests. These judgments have a notable effect on labour law and the employment relationship. They are anticipated to be particularly influential in future cases. Although facts have been shortened where possible, findings of reasonableness and fairness are often dependent on the specific circumstances and relevant facts have therefore been set out where necessary. As in the previous update, the labour courts were again tasked to deal with several cases involving Covid-19 related facts, particularly mandatory vaccinations. There was also a significant increase in constitutional court judgments in labour-related matters.

BREACH OF THE IMPLIED DUTY TO PRESERVE MUTUAL TRUST AND CONFIDENCE IN AN EMPLOYMENT RELATIONSHIP: A CASE STUDY OF Moyo v Old Mutual Limited (22791/2019) [2019] ZAGPJHC 229 (30 July 2019)

This case note is intended to revisit the contentious aspect of the implied duties of South African labour law in the individual employment relationship. Significantly, the case note intends to remind the reader about the importance of adhering to certain implied duties in the contract of employment. In this regard, the implied duty to preserve mutual trust and confidence is the central theme of this case note. On the one hand, the implied duty to safeguard mutual trust and confidence imposes an obligation upon the employer to conduct itself in a manner not likely to destroy, jeopardise, or seriously damage the trust relationship and confidence in the employment relationship. On the other hand, this implied duty is becoming a significant yardstick used by employers to address contractual labour disputes in South Africa. In order for an employer to invoke this implied duty, it must be expected that the employee would have to conduct him or herself in a manner likely to demonstrate to his employer loyalty, good faith and cooperation.Against this background, the recent case of Moyo v Old Mutual (22791/2019) [2019] ZAGPJHC 229 (30 July 2019) (Moyo) demonstrates the impact of a breach of the implied duty to preserve mutual trust and confidence on the employment relationship. This case note intends to examine the implied obligation that rests upon the employer to safeguard trust and confidence in the relationship. The case note further reflects on the implied duty of employees to safeguard and protect mutual trust and confidence. After all, trust forms the basic fundamental core of the employment relationship, and any breach of this duty is likely to result in an irretrievable breakdown of the employment relationship. Once there is a breakdown of trust and confidence, it remains a mammoth task to restore the relationship.

A COMPARATIVE ANALYSIS OF THE MANDATORY RULE DOCTRINE AND ITS APPLICATION IN THE SOUTH AFRICAN LABOUR COURT

Inherent in any employment relationship is the imbalance of bargaining power between the parties to the employment contract. On a globalised scale, this imbalance is exacerbated where employees are often reliant on the provisions within their contract to ensure they are adequately protected. Party autonomy enables the parties to choose the legal system that will govern these provisions and the employment relationship as a whole. The doctrine of mandatory rules purports to make applicable those ‘laws of a strictly positive, imperative nature’ so as to guarantee the protection of employees’ interests where party autonomy serves to conceal the power imbalance within the employment relationship. The Labour Court has, however, often misunderstood and neglected to consider the application of private international law rules, which are inclusive of the mandatory rule doctrine. The aim of this article is, therefore, to critically analyse the doctrine and question whether, from a comparative perspective, South African labour law can be considered as fitting within this framework as developed within the European Union and the United States, so as to ensure its protective elements are applied in the appropriate instances.

Dismissal during Probationary Period of Employment in South Africa: An International Perspective

It is a universally acceptable practice to employ newly hired employees on a probationary period. In general terms the purpose of probation is to give the employer an opportunity to evaluate the employee's performance before confirming the appointment. This in itself seems to be an uncomplicated process; however, the scenario, especially in South Africa, becomes more complicated if an employer wants to terminate an employee's service during the probationary period of employment or terminate the services of an employee at the end of the probationary period. The right to a fair dismissal is well recognised in South African labour law; this right also extends to employees during their probationary period of employment. Convention 158 of the International Labour Organisation (ILO) provides guidelines in respect of the termination of employment, also during the probation period. In this article the ILO's standards with regard to the termination of employment during probation are considered. South Africa was a former colony of the Netherlands and the United Kingdom, in light of this the respective positions on dismissal during the probation period of employment in the Netherlands and the United Kingdom are also analysed. This provided the researcher with an opportunity to determine if South Africa's dismissal regime during the probationary period of employment is in line with some international perspectives and it appears that dismissal during the probationary period of employment in South Africa is out of step with international standards and developments.

The economic costs of restraint of trade agreements: modest lessons for South Africa from Germany and other selected jurisdictions

This paper considers the current legal position in South African labour law where employees subject to a restraint of trade agreement are not paid anything during the restraint's subsistence and face financial difficulties. When employees sign restraint of trade agreements, they undertake to surrender their ability to earn a living and not take advantage of other employment or commercial opportunities for a specific period, without getting any financial compensation as a means of survival during the subsistence of the period of restraint. After a detailed exposition of Germany's legal position and references to other similar jurisdictions, we recommend that South Africa learn from Germany and consider introducing mandatory compensation for employees who may find themselves rendered economically inactive by restraint of trade agreements.

Aantekening: An update of recent labour law developments from South African courts 2021

This contribution summarises and addresses recent South African labour law cases from June 2020 to May 2021. It focuses on a number of noteworthy decisions handed down by South African courts on a range of labour law matters. The cases addressed here were chosen because they established new standards, greatly expanded on existing ones, or established new legal tests. These judgments have a notable effect on labour law and the employment relationship in particular. They are anticipated to be particularly influential in future cases. In this period, it has also become necessary for the courts to deal with a number of cases involving Covid- 19-related facts.

Twenty Years of the Remedy of Reinstatement in the Law of Unfair Dismissal in South Africa: Some Preliminary, Jurisprudential and Sundry Issues

Reinstatement as a remedy for unfair dismissal was known to and applied by the Industrial Court of the bygone labour relations regime of 1956. It was, however, the Labour Relations Act 66 of 1995 (LRA) that entrenched this remedy in the modern South African labour relations system designed essentially to do justice between the employer and the employee and, fundamentally, to achieve industrial justice. After two decades of the operation of the adjudicative institutions established by the 1995 Act, it is time to evaluate the ways in which the labour arbitrators, the Labour Courts and the Labour Appeal Court, have interpreted and applied the provisions of the LRA relating to reinstatement. This evaluation exercise also extends to the immense contributions of the Supreme Court of Appeal and the Constitutional Court to the jurisprudence surrounding reinstatement as an unfair dismissal remedy in contemporary South African labour law. This article starts by defining reinstatement, distinguishing the remedy of re-employment and, further, the Constitutional Court’s judicial activist innovation to the labour relations lexicon—‘instatement’. Then it settles down to tackle issues that are preliminary and jurisprudential in nature—issues that were probably not contemplated by the enabling legislation, but which have arisen in adjudication. These include resignation and its effect on reinstatement, automatic reinstatement in the form of a declaration, and whether a court is able to order either ‘interim reinstatement’ or ‘semi-urgent interim relief’. The latter part of this article examines those non-statutory obstacles to accessing the remedy of reinstatement. These include the employer’s non-compliance with the order of reinstatement, as was the issue in the protracted litigation concerning Myers v National Commissioner of the SAPS ((2013) 34 ILJ 1729 (SCA); Myers v National Commissioner of the SAPS [2014] 5 BLLR 461 (LC); Myers v National Commissioner of the SAPS [2015] ZALCCT 68); whether the Prescription Act applies to claims for reinstatement; and such sundry issues as whether arrear wages could be recovered as a judgment debt. Finally, we consider whether an employee nearing the retirement age who is unfairly dismissed is entitled to reinstatement.

Legal Pitfalls of Incompatibility in the Workplace: An Examination of the Landmark Ruling on Racism in Rustenburg Platinum Mine v SAEWA obo Meyer Bester 2018 (5) SA 78 (CC)

In South African labour law, as is the position in other international jurisdictions, the contract of employment is founded on an employment relationship between employer and employee. This case note discusses the nature and scope of the implied term of trust and confidence in the relationship in relation to managerial employees, with particular emphasis on breach of fiduciary obligations as well as incompatibility (MacGregor “Racial Harassment in the Workplace: Context as Indicata SA Transport and Allied Workers Union obo Dlamini & Transnet Freight Rail” 2009 Industrial Law Journal 650). This obligation of mutual trust and confidence cuts both ways (Western Platinum Refinery Ltd v Hlebela (2015) 36 ILJ 2280) and means that the employer must not behave arbitrarily or unreasonably, or so as to destroy the necessary basis of mutual confidence (Malik v BCCI [1998] AC 20 35 and Woods v WM Car Services (Peterborough) Ltd 1981 IRLR 347).Since the dawn of democracy in 1994 and influenced by constitutional changes in government, South African labour law has been drastically transformed. The new government, led by the African National Congress, had to come up with a legislative framework to deal with racism. Although the Labour Relations Act 66 of 1995 (LRA) does not explicitly deal with the question of racism at work, the importance of forging harmonious employment relationships is covered in the misconduct and incapacity in Schedule 8 of the LRA (Code of Good Practice: Dismissal). To this day, racism at the workplace remains a scourge and for this reason this case note examines the Rustenburg Platinum Mine v SAEWA obo Bester 2018 (5) SA 78 (CC)) case as its focal point. The effect of racism requires that a balance be struck between an employer’s interest in managing its business as it sees fit and the employee’s interest in not being unfairly and improperly exploited.

Foreigners' Rights to Work and Fair Labour Practices in South Africa: A Review of the South African Labour Legislation and Jurisprudence

After several decades of apartheid rule, which denied human rights to the majority of the population on the ground of race and came to be regarded as a crime against humanity, South Africa adopted its first democratic Constitution in the early 1990s. The 1996 Constitution, which succeeded the 1993 interim Constitution, is considered one of the most progressive in the world. In its founding provisions, it states that South Africa is a democratic state founded on human dignity, the achievement of equality, the advancement of human rights and freedoms. The Constitution enshrines fundamental human rights in a justiciable Bill of Rights as a cornerstone of democracy. Unfortunately, in the eyes of a number of politicians, officials and lay-persons, the rights in the Bill of Rights accrue to South African citizens only. Xenophobia, which has been rampant since the end of apartheid, seems to support the idea that foreigners should not enjoy these rights. Foreign nationals have often been accused of posing a threat to South African citizens with regard to employment opportunities. In light of the South African legislation and jurisprudence, this article affirms the position of the South African labour law that foreign nationals are indeed protected by the Constitution and entitled to rights in the Bill of Rights, including the rights to work and fair labour practices.

Defining Fairness in Dismissals of Unauthorised Foreign Nationals

It is trite that if a person's employment is prohibited by law it is not possible for such a person to perform his or her work lawfully. However, people are employed despite failing to comply with statutory requirements. One such class of persons consists of unauthorised foreign nationals. This arises in circumstances where they are employed without work permits or where their work permits expire during employment. The Labour Court in Discovery Health Limited v CCMA 2008 7 BLLR 633 (LC) has affirmed that the absence of a valid work permit does not invalidate the contract of employment, thereby endorsing the fact that unauthorised foreign nationals are regarded as employees. While the Labour Court has confirmed that unauthorised foreign nationals are subject to labour law protection, notably the right not to be unfairly dismissed, it is irrefutable that employers are permitted to dismiss such employees. However, these dismissals must be fair. Unfortunately, there is no clarity on what constitutes a fair dismissal in such circumstances. Although the CCMA relying on the decision of Discovery Health is substantially unanimous in finding that unauthorised foreign nationals have the right to utilise the unfair dismissal machinery sanctioned in the Labour Relations Act 66 of 1995, its decisions are plagued with inconsistency when it comes to determining fairness. Furthermore, no specific guidance has been forthcoming from the Labour Court. Considering the fact that migration to South Africa is rife, resulting in many foreign nationals being employed, this is an important aspect of the law. Therefore, this article explores the substantive and procedural fairness requirements of such dismissals. Having clarity of the legal requirements that apply will aid the fair treatment of foreign nationals who face dismissals due to the absence of valid work permits. This is significant, as South African labour law places a high premium on the fair dismissal of all employees. Apart from being legislated in the LRA, this right is also a constitutional imperative.

The Use of the Model of Occupational Self-Efficacy for Work Retraining: A Multiple Case Study.

The South African labour law serves as a guide for employers to accommodate injured individuals in the work place. The aim of the study was to explore and describe the experiences of individuals with traumatic brain injury regarding returning to work through the use of the Model of Occupational Self-Efficacy (MOOSE). The study utilized a multiple case study research design, and 10 participants participated in the study. An analytical strategy of explanation building was used to analyse the data. Three themes emerged from the study, i.e., Theme 1: the model has its limitations (barriers), Theme 2: the model helps facilitate work integration (facilitators), and Theme 3: further enhancements to improve the model. The findings of this study indicated that the participant experiences of the MOOSE are a useful model to facilitate the return of individuals living with a TBI back to work. Coping skills and support groups were also viewed as being an important part of the vocational rehabilitation program.

Organisational Rights for Minority Trade Unions: A Reflection on Ngcobo J’s Judgment in Numsa and Others v Bader Bop (Pty) Ltd and Another (2003) 24 ILJ 305 (CC)

The Constitution of the Republic of South Africa contains a Bill of Rights which enshrines the rights of all the people in the country. These rights include trade unions and employers or employers’ organisations rights. This chapter deals with organisational rights for minority trade unions with specific reference to the decision of the Constitutional Court in NUMSA and Others v Bader Bop (Pty) Ltd and another and more particularly the judgment delivered by Ngcobo J. It argues that by recognising organisational rights to a minority trade union like NUMSA, outside Part A of Chapter III of the Labour Relations Act which only grants them to majority or representative trade unions, the Bader Bop judgment brought about a ‘revolution’ in the South African labour law jurisprudence. This judgment will remain one of the jewels of the South African jurisprudence and Ngcobo J, who delivered in this case one of his few separate judgments, played an important role during this revolution facilitated by a transformative and substantive interpretative approach that went beyond the Labour Relations Act to consider the Constitution and international law.