The legal consequences of alcohol and drugs in the workplace
- Authors: Swartz, Johnny Dick
- Date: 2012
- Subjects: Labor discipline -- Law and legislation -- South Africa , Employees -- Alcohol use , Drugs and employment
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10248 , http://hdl.handle.net/10948/d1019960
- Description: Drug and alcohol abuse in the workplace is a worldwide problem as it impacts on the company efficiency and cost effectiveness. Companies have prioritized the need to find ways of managing and reducing intoxication in the workplace. In South Africa such processes have to occur within the confines of a constitutional right of fair labour practices and other prescriptive labour legislation. An employee has a constitutional obligation to give faithful and diligent service to the employer. Intoxication contradicts this obligation and may pose a security risk in the workplace. It will be incumbent of an employer to prove that the employee was drunk at the relevant time or was affected by liquor or narcotic substance. Suspicion regarding abuse of alcohol and drugs without proper evidence to support such claims will not satisfy the substantive fairness requirements. When it comes to proving that the employee is indeed under the influence of alcohol and drugs in the workplace, many questions arise. Is it necessary for the employer always to conduct a breathalyzer test or even a blood or urine test? Is it sufficient for the employer to lead other evidence like smelled of alcohol, unsteadiness on his feet and slurred speech? The author will attempt to answer these questions. An employee who consumes alcohol or drugs in the workplace can either be disciplined for misconduct or incapacity. The dividing line between misconduct and incapacity is not always clear. The author suggests various ways of dealing with alcohol and drug-related misconduct and incapacity depending on the facts of each case. Disciplinary sanctions should, as far as possible, be designed to discourage repeated alcohol and drug abuse. Different standards of conduct may be expected of different employees given the nature of their work and the degree of their responsibility. Fair discipline requires a fair procedure, fair disciplinary rules and a fair graduated system of punishment. Termination for incapacity occurs if the employee no longer has the capacity work (on account of his alcohol and drug dependence). Termination for misconduct occurs if the employee consistently acts as though he is not bound by the rules of conduct within the employer‟s establishment on account of his repeated alcohol or drug abuse. Discipline should be progressive in nature, intended to remedy rather than merely punish wrongful behaviour. Case law suggests that employers treat alcohol and drug dependence, the same as other illnesses, with sympathy, understanding and compassion. The author suggests that alcohol and drug abuse in the workplace must be dealt with on a case to case basis
- Full Text:
- Date Issued: 2012
- Authors: Swartz, Johnny Dick
- Date: 2012
- Subjects: Labor discipline -- Law and legislation -- South Africa , Employees -- Alcohol use , Drugs and employment
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10248 , http://hdl.handle.net/10948/d1019960
- Description: Drug and alcohol abuse in the workplace is a worldwide problem as it impacts on the company efficiency and cost effectiveness. Companies have prioritized the need to find ways of managing and reducing intoxication in the workplace. In South Africa such processes have to occur within the confines of a constitutional right of fair labour practices and other prescriptive labour legislation. An employee has a constitutional obligation to give faithful and diligent service to the employer. Intoxication contradicts this obligation and may pose a security risk in the workplace. It will be incumbent of an employer to prove that the employee was drunk at the relevant time or was affected by liquor or narcotic substance. Suspicion regarding abuse of alcohol and drugs without proper evidence to support such claims will not satisfy the substantive fairness requirements. When it comes to proving that the employee is indeed under the influence of alcohol and drugs in the workplace, many questions arise. Is it necessary for the employer always to conduct a breathalyzer test or even a blood or urine test? Is it sufficient for the employer to lead other evidence like smelled of alcohol, unsteadiness on his feet and slurred speech? The author will attempt to answer these questions. An employee who consumes alcohol or drugs in the workplace can either be disciplined for misconduct or incapacity. The dividing line between misconduct and incapacity is not always clear. The author suggests various ways of dealing with alcohol and drug-related misconduct and incapacity depending on the facts of each case. Disciplinary sanctions should, as far as possible, be designed to discourage repeated alcohol and drug abuse. Different standards of conduct may be expected of different employees given the nature of their work and the degree of their responsibility. Fair discipline requires a fair procedure, fair disciplinary rules and a fair graduated system of punishment. Termination for incapacity occurs if the employee no longer has the capacity work (on account of his alcohol and drug dependence). Termination for misconduct occurs if the employee consistently acts as though he is not bound by the rules of conduct within the employer‟s establishment on account of his repeated alcohol or drug abuse. Discipline should be progressive in nature, intended to remedy rather than merely punish wrongful behaviour. Case law suggests that employers treat alcohol and drug dependence, the same as other illnesses, with sympathy, understanding and compassion. The author suggests that alcohol and drug abuse in the workplace must be dealt with on a case to case basis
- Full Text:
- Date Issued: 2012
The recognition of victims rights of sexual offences
- Authors: Dipa, Asanda
- Date: 2012
- Subjects: Sex crimes -- South Africa , Criminal justice, Administration of , Sex and law -- South Africa , Victims of crimes -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10181 , http://hdl.handle.net/10948/d1014361
- Description: “Indeed in rape cases it is the victim who is most often placed on trial rather than the perpetrator, accused of having ulterior motives and subjected to degrading questions with often pornographic overtones. Prosecutors might fail to adequately address the victims needs and all too often, information is either intentionally or unintentionally withheld from victims.” The victims of sexual offences have to face not only the consequences of the sexual crime that was perpetrated upon them, but they also have to deal with the effects of the criminal justice system. Victims who take part in the criminal justice system should not be exposed to unnecessary distress and trauma. The victims of sexual offences must not be re-victimised by the criminal justice system. Re-victimisation has been coined to describe the experience where victims are subjected to further victimisation by the very state organs to whom they turn for assistance. This has the effect that the victim is victimised twice, first by the offender and then by the criminal justice system. It is therefore the duty of the law to protect this group of witnesses from such a traumatic and damaging experience. The question that needs to be answered in this research is whether the Sexual Offences and Related Matters Amendment has made any difference in respect of protection of victims sexual crimes. It was concluded that the Sexual Offences Act is indeed a step in the right direction to protect the rights of victims of sexual offences but that it could have afforded more protection.
- Full Text:
- Date Issued: 2012
- Authors: Dipa, Asanda
- Date: 2012
- Subjects: Sex crimes -- South Africa , Criminal justice, Administration of , Sex and law -- South Africa , Victims of crimes -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10181 , http://hdl.handle.net/10948/d1014361
- Description: “Indeed in rape cases it is the victim who is most often placed on trial rather than the perpetrator, accused of having ulterior motives and subjected to degrading questions with often pornographic overtones. Prosecutors might fail to adequately address the victims needs and all too often, information is either intentionally or unintentionally withheld from victims.” The victims of sexual offences have to face not only the consequences of the sexual crime that was perpetrated upon them, but they also have to deal with the effects of the criminal justice system. Victims who take part in the criminal justice system should not be exposed to unnecessary distress and trauma. The victims of sexual offences must not be re-victimised by the criminal justice system. Re-victimisation has been coined to describe the experience where victims are subjected to further victimisation by the very state organs to whom they turn for assistance. This has the effect that the victim is victimised twice, first by the offender and then by the criminal justice system. It is therefore the duty of the law to protect this group of witnesses from such a traumatic and damaging experience. The question that needs to be answered in this research is whether the Sexual Offences and Related Matters Amendment has made any difference in respect of protection of victims sexual crimes. It was concluded that the Sexual Offences Act is indeed a step in the right direction to protect the rights of victims of sexual offences but that it could have afforded more protection.
- Full Text:
- Date Issued: 2012
The rights of employees following a transfer of an undertaking in terms of section 197 of the Labour Relation Act in an outsourcing context
- Authors: Crouse, Chantell Belinda
- Date: 2012
- Subjects: Employee rights , Employees -- Transfer -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10241 , http://hdl.handle.net/10948/d1015060
- Description: The protection that employees enjoy under our common law in the transfer of a business of its employer is very little. Common law only concerns itself with the lawfulness of a contract of employment. Common law is, however, now also experiencing the effect of the Constitution which provides for fair labour practices. Proper legislation was enacted to afford employees proper protection against dismissals resulting out of a transfer of a business by the employer as a going concern. Such a dismissal would be automatically unfair in terms of section 187(1)(g) of the LRA. The protection that employees enjoy is governed by section 197 of the LRA. This section provides that the new employer is placed in the “shoes” of the old employer. It also further states that the new employer could be held accountable for the unlawful actions of the old employer against an employee prior to the transfer taking place. Section 197 of the LRA, however, does not apply to all transfers of businesses. There are some key concepts that are of importance to determine its applicability. Such concepts include whether there was a transfer of a business or a part of the business and whether it was transferred as a going concern. The words “transfer” and “business” are defined in section 197(1)(a) and (1)(b) of the LRA. However, the words “going concern” are not defined and one would have to scrutinise case law for guidance in considering whether the transfer was done as a going concern. A leading case is that of Schutte Powerplus Performance (Pty) Ltd.1 In this case the court held that one must consider the substance of the agreement in determining whether the business was transferred as a going concern. It further held that the lists of factors that one should have regard to are not exhaustive. Section 197 of the LRA also applies to employees whose services have been outsourced. Outsourcing of services occurs where an employer discontinues a service or activity that is in most cases not part of the main business of the employer, and contract an outside contractor to take over that service or activity. This matter was given clarity in the case of SA Municipal Workers Union v Rand Airport Management Company (Pty) Ltd.2 The court came to the conclusion that section 197 could apply to outsourcing, provided it passes the test of “transfer” as well as the test of what constitutes a “business or service”. Outsourcing to labour brokers is, however, not covered by section 197 of the LRA. The matter was given consideration by the Labour Court in CEPPWAWU v Print Tech (Pty) Ltd.3 Another question is whether second-generation outsourcing is covered by section 197 of the LRA. Second Generation Outsourcing occurs when an employer put the outsourced service out to tender upon the outsource contract coming to an end and a new entity is awarded the outsourcing opportunity following the original outsource entity being unsuccessful in its bid to secure the contract for an additional term.
- Full Text:
- Date Issued: 2012
- Authors: Crouse, Chantell Belinda
- Date: 2012
- Subjects: Employee rights , Employees -- Transfer -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10241 , http://hdl.handle.net/10948/d1015060
- Description: The protection that employees enjoy under our common law in the transfer of a business of its employer is very little. Common law only concerns itself with the lawfulness of a contract of employment. Common law is, however, now also experiencing the effect of the Constitution which provides for fair labour practices. Proper legislation was enacted to afford employees proper protection against dismissals resulting out of a transfer of a business by the employer as a going concern. Such a dismissal would be automatically unfair in terms of section 187(1)(g) of the LRA. The protection that employees enjoy is governed by section 197 of the LRA. This section provides that the new employer is placed in the “shoes” of the old employer. It also further states that the new employer could be held accountable for the unlawful actions of the old employer against an employee prior to the transfer taking place. Section 197 of the LRA, however, does not apply to all transfers of businesses. There are some key concepts that are of importance to determine its applicability. Such concepts include whether there was a transfer of a business or a part of the business and whether it was transferred as a going concern. The words “transfer” and “business” are defined in section 197(1)(a) and (1)(b) of the LRA. However, the words “going concern” are not defined and one would have to scrutinise case law for guidance in considering whether the transfer was done as a going concern. A leading case is that of Schutte Powerplus Performance (Pty) Ltd.1 In this case the court held that one must consider the substance of the agreement in determining whether the business was transferred as a going concern. It further held that the lists of factors that one should have regard to are not exhaustive. Section 197 of the LRA also applies to employees whose services have been outsourced. Outsourcing of services occurs where an employer discontinues a service or activity that is in most cases not part of the main business of the employer, and contract an outside contractor to take over that service or activity. This matter was given clarity in the case of SA Municipal Workers Union v Rand Airport Management Company (Pty) Ltd.2 The court came to the conclusion that section 197 could apply to outsourcing, provided it passes the test of “transfer” as well as the test of what constitutes a “business or service”. Outsourcing to labour brokers is, however, not covered by section 197 of the LRA. The matter was given consideration by the Labour Court in CEPPWAWU v Print Tech (Pty) Ltd.3 Another question is whether second-generation outsourcing is covered by section 197 of the LRA. Second Generation Outsourcing occurs when an employer put the outsourced service out to tender upon the outsource contract coming to an end and a new entity is awarded the outsourcing opportunity following the original outsource entity being unsuccessful in its bid to secure the contract for an additional term.
- Full Text:
- Date Issued: 2012
Unfair discrimination and affirmative action in the South African Police Service
- Authors: Taylor, Nicola
- Date: 2012
- Subjects: Discrimination in employment -- South Africa , Affirmative action programs -- South Africa , South African Police
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/8693 , vital:26421
- Description: Affirmative action is the purposeful, planned placement and development of competent or potentially competent persons in or to positions from which they were debarred in the past. Affirmative action is an attempt to redress past population, on a local and national level. One of the requirements of affirmative action in South Africa is that it must target persons who have been discriminted by unfair discrimination in the past. the Emplyment Equity Act was brought into the South African government to bring equality to all. Unfair discrimination is a branch of affirmative action in which individuals are discriminated against not only on race, but includes colour, sex, religion, age, disability, language and the likes. Section 9 of the Constitution of South Africa prohibits unfair discrimination against any person on any of the listed grounds. Section 2 of the Employment Equity Act is in place to aim to achieve equity within the workplace by promoting equal opportunity and fair treatment as well as eliminating unfair discrimination. Section 6, like the Constitution, lists grounds against which an individual may not be discriminated. Historically, the South African Police Services were a deeply-routed racist organization, where only white males were afforded better opportunities. This however changed after South Africa became a democratic country and with the introduction of the SAPS Act. Transformation within the SAPS took place after South Africa moved towards a democratic society.
- Full Text: false
- Date Issued: 2012
- Authors: Taylor, Nicola
- Date: 2012
- Subjects: Discrimination in employment -- South Africa , Affirmative action programs -- South Africa , South African Police
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/8693 , vital:26421
- Description: Affirmative action is the purposeful, planned placement and development of competent or potentially competent persons in or to positions from which they were debarred in the past. Affirmative action is an attempt to redress past population, on a local and national level. One of the requirements of affirmative action in South Africa is that it must target persons who have been discriminted by unfair discrimination in the past. the Emplyment Equity Act was brought into the South African government to bring equality to all. Unfair discrimination is a branch of affirmative action in which individuals are discriminated against not only on race, but includes colour, sex, religion, age, disability, language and the likes. Section 9 of the Constitution of South Africa prohibits unfair discrimination against any person on any of the listed grounds. Section 2 of the Employment Equity Act is in place to aim to achieve equity within the workplace by promoting equal opportunity and fair treatment as well as eliminating unfair discrimination. Section 6, like the Constitution, lists grounds against which an individual may not be discriminated. Historically, the South African Police Services were a deeply-routed racist organization, where only white males were afforded better opportunities. This however changed after South Africa became a democratic country and with the introduction of the SAPS Act. Transformation within the SAPS took place after South Africa moved towards a democratic society.
- Full Text: false
- Date Issued: 2012