Labour Law

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An analysis of social media misconduct in the workplace.
(2018) Arjun, Ramesh Thilak.; Bernard, Rowena Bronwen.
This paper serves to analyse social media misconduct in the workplace. The introduction of electronic and social media has brought about significant changes to how business is conducted. Despite its widespread benefits, social media usage has the potential to cause harm to a business entity. The aim of this dissertation is to analyse the different forms of harm that may befall a business through social media misuse, and the tools that are available and the steps that need to be taken to avert such harm. The analysis will be undertaken by referring to South African legislative and common law principles and by drawing a comparison with the approach adopted by foreign jurisdictions in respect of social media misconduct in their workplaces
A critical analysis of child labour protective laws in Southern Africa : a case study of Malawi, South Africa and Zimbabwe.
(2014) Madziwa, Tinashe.; Bernard, Rowena Bronwen.
In many countries, mainly African, child labour is a major problem compromising future generations and undermining human capital. It is estimated that over 28.4 per cent of all children between the ages of five and 14 years are involved in child labour activities in sub-Saharan Africa. It is an accepted fact that despite legislation, in most countries in Africa the problem of child labour still persists. In this study, a critical analysis of the legislation regulating child labour in Southern Africa will be undertaken, with the focus being on Malawi, South Africa and Zimbabwe. This research aims at establishing why child labour is a continuing problem in these countries despite laws that have been enacted to prevent it. Malawi, South Africa and Zimbabwe were specifically chosen for similarities in their colonial history which has influenced their political, cultural, legal and socio-economic patterns. As is common in the promulgation of laws, lacunae emerge; therefore attention was given to areas that have been overlooked by government. Weaknesses and gaps in these legislation were identified as the reason for the legislation being ineffective when combating or reducing child labour. Therefore, the main purpose of this study was to investigate whether the continued prevalence of child labour is due to oversight or the result of a wrong approach by different governments when legislation was drafted. For legislation to be implemented effectively it should be drafted correctly and appropriately; failure to do so results in legislation not achieving its purpose. Where gaps have been identified, realistic recommendations were made on how to correct these problems to make the law work more effectively to combat child labour in Southern Africa.
A critical analysis of Section 197 of the Labour Relations Act 66 of 1995 as amended taking into consideration the elements of Section 197, the definition and case law.
(2016) Soni, Chetna.; Bernard, Rowena Bronwen.
Section 197 of the Labour Relations Act 66 of 1995 regulates the transfer of a business as a going concern. However, it caused much debate and litigation. Previously, section 197 allowed for the automatic transfers of employees when there was transfer of the whole or part of a business, trade or undertaking. The employees could not refuse to be transferred. There has been much debate and litigation on this issue, mainly on the issue of transfers in the context of outsourcing. This resulted in section 197 of the Labour Relations Act 66 of 1995 being amended in 2002. With the amendments, the new employer is automatically substituted in place of the old employer in respect of all contracts of employment. The section aims to protect employees against loss of employment while facilitating the transfer process. Despite the amendment, there has been much academic and judicial debate on the issue. The Constitutional Court settled this issue in Aviation Union of SA & another v SA Airways (Pty) Ltd & others (2011) 32 ILJ 2861 (CC) wherein it was held that a transfer takes place when there is a termination of a service contract and the award of a new contract to a third party. The Aviation case sets a precedence and is being applied in various cases. For section 197 to apply, there must be a transfer of an identifiable business by the old employer to the old employer as a going concern. Each case must be determined on the facts. The effects and conditions of transfers are further discussed stating the consequences that flow and the remedies available to employees. The conditions of the transferred employees should not on a whole be less unfavorable. This is further examined in the context of transfers within the South African Local Government structures and how the unions failed to utilize their power and collective bargaining to their advantage to ensure that they members were protected during the process.
A critical analysis of temporary employment services in contemporary South Africa.
(2020) Khumalo, Nokuzola Gloria.; Bernard, Rowena Bronwen.
The study focuses on the critical analysis of temporary employment services in contemporary South Africa and specifically looks at the Labour Relations Amendment Act 6 of 2014 which introduced a controversial provision of section 198A. The analysis discusses the history of the Labour Relations in South Africa as it progresses over the years from 1956 to the latest amendments of the Labour Relations Act in 2014. As part of the history of the TES the analysis touches on the Namibian LRA and case law, a country that dealt with a similar issue of TES abusive labour. Also touches on the ILO standards of employment which affects the world globally. The study analyses the South African case law that deals with the TES abuse of vulnerable labour, in particular, an outstanding recent case of Assign Services v NUMSA which ended up in the Constitutional Court of South Africa. In critical analysis of the deeming provision, joint and several liability clauses, a use of other related employment statutes is discussed. The dissertation focuses on the outcome of the recent Constitutional case and of Assign Service v NUMSA where the Constitutional Court finalised the word to mean a sole employer for the purpose of the LRA only in exclusion of other employment statutes. This is a fascinating debate, which requires legislature to deal with before it yields further disputes. The study also provides some recommendations to be considered to amend the LRA legislation in section 198A in order to provide a clear interpretation.
A critical analysis of violent strikes in South Africa.
(2020) Jainarain, Shakti.; Bernard, Rowena Bronwen.; Crocker, Angela Diane.
Violence during strikes is a major problem in South Africa. As time progresses, details of violent strikes are becoming more prevalent and alarming. Violent strikes impact the economy and investment. In addition, violent strikes wreak havoc in the workplace, disrupting business, posing a threat to human life, employment security, and property. This dissertation analyses the laws that regulate strikes. It will be argued that the Constitution and the Labour Relations Act are premised on peaceful strike action. Therefore, this dissertation will consider the social, political and economic factors that cause strikes to become violent as well as factors such as casualization and non-standard employment and its link to strike violence. This dissertation will also consider solutions available to deal with violent strikes which are comprised of legal mechanisms and how employers and employees can adapt their negotiation skills to avoid violence.
Exploring the traditional health practitioner's medical certificate in the workplace.
(2022) Dlamini, Lulu Nosipho.; Bernard, Rowena Bronwen.
Abstract available in PDF.
A father’s right to paternity leave in the South African workplace.
(2020) Naidoo, Shantha Luxmi.; Bernard, Rowena Bronwen.
This minor dissertation examines the legal position of the working father and paternity leave in South Africa. The Labour Law Amendment Act No. 10 of 2018 came into effect on 1 January 2020. Section 25A of the BCEA provides for ‘parental leave’ which will allow a male or female parent ten days leave upon the birth or adoption of a child. The dissertation will discuss whether the proposed changes were required in South Africa and will look at the law before the amendments were effected. Further the dissertation looks at whether the 10 days provided for working fathers is sufficient. This dissertation will provide a comparison of certain developed and developing countries in order to show whether South Africa has now caught up,
How do the 2015 LRA amendments impact on widespread practice in relation to TES employees?
(2019) Khawula, Mandlakhe Florian.; Bernard, Rowena Bronwen.
In 2014, the Labour Relations Act 66 of 1995 went through significant changes that were aimed at improving the protection of workers in non-standard employment relationships. It is an undisputed fact that prior to the amendments, section 198 provided little protection regarding this type of employment. One of South Africa’s leading labour federations, the Congress of South African Trade Unions (COSATU) was amongst the unions that were protesting against the Temporary Employment Service (TES) system, arguing that the system was exploiting workers and that TESs were the main drivers of the casualisation of labour. The TES system promotes low wages and poor conditions of employment. TES is equivalent to the trading of human beings as commodities therefore they must be banned. To address the dissatisfaction, learning from the Namibian experience in particular, the South African legislature opted for the regulation of the TES industry hence the Labour Relations Amendment Act 4 of 2014 where section 198 was amended to also include section 198A to D of the LRAA. This paper seeks to examine the impact of the amendments on the widespread practice in the workplace specifically in relation to the TES employees, bearing in mind the insistence by trade unions that the TES must be done away with. This dissertation demonstrates that the amendments of the LRA and common law to a certain extent provide a solution to several problems the employees of TES have had prior to the amendments. This development has a significant impact on the improvement of working conditions.
Proving constructive dismissal: a critical evaluation of section 186(l)(e) of the Labour Relations Act 66 of 1995 and recent judgments.
(2018) Cele, Nonkululeko.; Bernard, Rowena Bronwen.
The focus of the research is to evaluate the interpretation of section 186 ( 1 )( e) of the Labour Relations Act of 1995 which defines a dismissal to include circumstances where an employee resigns with or without notice because the employer has made continued employment intolerable for the employee. The purpose of the research is to set out the appropriate test to be followed in dealing with a constructive dismissal claim in terms of section 186(1 )(e) and assess whether the Constitutional Court has adequately formulated a test to be applied in the case of Strategic Liquor Services v Mvumbi 2010 (2) SA 92 (CC) where it was held that the test for proving constructive dismissal is not whether the employee had alternatives short of resignation but only that the employer made continued employment intolerable. The test formulated by the Constitutional Court will be revisited and the research will further evaluate if there has been progression on the approach adopted by the CC. The focus of the research will be mainly on the evaluation of recent judgments. The significance of adopting a purposive approach when interpreting the LRA is discussed as well as the remedies which follows once an employee succeeds with a claim of a constructive dismissal.
Sexual harassment in the workplace : a critical analysis of the unwelcome element.
(2018) Olivier, Kerrie-Lee Amanda.; Bernard, Rowena Bronwen.
Sexual harassment is one of the most prominent forms of harassment encountered in the working world globally. This has resulted in a plethora of laws being enacted, whereby, the definition of sexual harassment was provided, and the legal remedies available to the harassed, were established. Of particular importance, regarding the laws, is the different definitions which provide the elements that need to be satisfied before the conduct of the harasser can constitute sexual harassment. The unwelcome element is apposite in almost all jurisdictions when defining sexual harassment which undoubtedly indicates the importance of the unwelcome element. However, this element is difficult to establish in practice, and there is judicial inconsistency as to whose perspective the conduct should be considered unwelcome from, namely that of the harasser or harassed. Furthermore, studies indicate that men are more likely to find sexual connotations in the responses of women, yet women often use less confrontational responses to show that the conduct was unwelcome. The above simply adds to the difficulties in the determination of the unwelcome element which is further fueled by the underdeveloped literature in South Africa on this element. Therefore, this dissertation endeavours to make a contribution to the limited knowledge in the area of sexual harassment by critically analysing and deconstructing the unwelcome element. Thus, the main objective of this dissertation is achieved through a legal comparative study to American jurisprudence, whereby the scholar, Joan Weiner, identified factors that the US courts consider in the determination of whether the conduct of the harasser was unwelcome. The relevance of these factors, in the determination of the unwelcome element, were compared and contrasted to South African case law. The findings from the analysis conducted revealed that even though these factors are seen by courts as an attempt to ensure that liability without fault is not attributed to the harasser, especially where sexual harassment is dealt with as a misconduct, the unwelcome element essentially acts as a roadblock to the harassed in sexual harassment cases. This element is used by harassers, as a defence, to show that the harassed’s conduct if scrutinised closely, indicates that she was welcoming of the conduct of the harasser resulting, in courts analysing the conduct of the harassed for signals to establish the unwelcome element. The main implication is that the harassed is placed on trial detracting from the behaviour of the harasser in sexual harassment cases.
Social media dismissal: sword or shield?
(2021) Dube, Sipho Prince.; Bernard, Rowena Bronwen.
The use of social media by employees has increased rapidly and has been met with different results. In the age of the internet, people share their thoughts and opinion on social media without thinking about the repercussions the post might have on the public in general and the workplace in particular. It is undeniable that employees have a constitutional right to privacy and freedom of expression but those rights are not absolute. This dissertation discusses the balance between the employee’s right to privacy and freedom of expression against an employer’s right to good name. It discusses the current legal position on social media and the procedure an employer must follow when disciplining an employee for social media misconduct. The dissertation also looks at the position of social media in the United Kingdom and attempts to draw lessons.

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Browsing Labour Law by Author "Bernard, Rowena Bronwen."