Creating a new underclass : labour flexibility and the temporary employment services industry
- Authors: Van Der Merwe, Christine
- Date: 2010
- Subjects: Temporary employment , Unfair labor practices -- South Africa , Temporary help services , Temporary help services -- South Africa
- Language: English
- Type: Thesis , Masters , MSocSc
- Identifier: vital:3291 , http://hdl.handle.net/10962/d1003079 , Temporary employment , Unfair labor practices -- South Africa , Temporary help services , Temporary help services -- South Africa
- Description: The core of the research focuses on the Temporary Employment Services (TES) Industry and its ability to provide labour flexibility for a number of client firms. The underlying notion that work is changing and becoming more flexible creates an exploratory realm for the concept of non-standard employment. The thesis draws on the conceptual model of the „flexible firm‟ and argues that the rise in non-standard forms of employment, particularly temporary employment within the TES industry, is primarily a result of the demand for labour flexibility. The TES industry that offers „labour on demand‟ is found to be an extremely secretive industry that is diverse in both its structure and services. The thesis reveals that the clients within the triangular employment relationship (TER) are reaping the most benefits especially with regard to escaping their obligations as the employer. The thesis explores human resource practices, unfair labour practices and the extensive loopholes exploited by the TES industry because of poor regulation. Consequently, the industry creates an „underclass‟ that is unprotected, insecure and easily exploitable. Qualitative research techniques were used in the form of semi-structured interviews. The thesis provides insights into the demand and supply of temporary workers in Port Elizabeth and addresses the problems associated with a TER and the TES industry as a whole.
- Full Text:
- Date Issued: 2010
- Authors: Van Der Merwe, Christine
- Date: 2010
- Subjects: Temporary employment , Unfair labor practices -- South Africa , Temporary help services , Temporary help services -- South Africa
- Language: English
- Type: Thesis , Masters , MSocSc
- Identifier: vital:3291 , http://hdl.handle.net/10962/d1003079 , Temporary employment , Unfair labor practices -- South Africa , Temporary help services , Temporary help services -- South Africa
- Description: The core of the research focuses on the Temporary Employment Services (TES) Industry and its ability to provide labour flexibility for a number of client firms. The underlying notion that work is changing and becoming more flexible creates an exploratory realm for the concept of non-standard employment. The thesis draws on the conceptual model of the „flexible firm‟ and argues that the rise in non-standard forms of employment, particularly temporary employment within the TES industry, is primarily a result of the demand for labour flexibility. The TES industry that offers „labour on demand‟ is found to be an extremely secretive industry that is diverse in both its structure and services. The thesis reveals that the clients within the triangular employment relationship (TER) are reaping the most benefits especially with regard to escaping their obligations as the employer. The thesis explores human resource practices, unfair labour practices and the extensive loopholes exploited by the TES industry because of poor regulation. Consequently, the industry creates an „underclass‟ that is unprotected, insecure and easily exploitable. Qualitative research techniques were used in the form of semi-structured interviews. The thesis provides insights into the demand and supply of temporary workers in Port Elizabeth and addresses the problems associated with a TER and the TES industry as a whole.
- Full Text:
- Date Issued: 2010
Fairness of a dismissal from a contractural and administrative law perspective
- Authors: Voultsos, Leon
- Date: 2010
- Subjects: Employees -- Dismissal of -- South Africa , Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10217 , http://hdl.handle.net/10948/1288 , Employees -- Dismissal of -- South Africa , Unfair labor practices -- South Africa
- Description: Section 157 of the LRA provides for the nature and extent of the Labour Courts jurisdiction. This provision has been subjected to extensive interpretation by the Judiciary and the various interpretations of the courts have not been entirely consistent. Specific mention is made of the relevance and applicability of section 157(1) and (2) of the LRA regarding the overlap between administrative law and contractual law into labour law. Reference will be made to case law specifically dealing with cases concerning the jurisdiction of the civil courts and labour courts where cases concerning employment and labour matters were brought either in terms of the PAJA or on the basis of contract law. The question arose whether matters which appear to be quintessential labour matters but simultaneously also capable of being entertained on the basis of the PAJA or in terms of contract law are matters which, generally, in terms of section 157(1) of the LRA fall within the exclusive preserve of the Labour Court or, in terms of section 157(2) of the LRA, fall within the concurrent jurisdiction of the High Court and the Labour Court. The discussion which follows will also include reference to the current legal position pertaining to the prohibition of public sector employees from pressing their claims relating to employment or labour matters in the civil courts on the basis of the PAJA as decided in the Chirwa v Transnet Ltd (2008) 2 BLLR 97 (CC) and; the impact thereof on employees pressing claims pertaining to employment and labour matters in the civil courts on the basis of contract law. In addition the similarity of considerations which are common to both administrative law and contract law regarding the “overlap” of each into labour law will be considered and discussed. In the light of the discussion which follows agreement will be expressed with certain decisions of the High Court and the SCA where civil courts were held to retain jurisdiction to entertain common law contractual claims concerning labour and iv employment matters as opposed to restricting all employment and labour matters to the forums established under the LRA and to claims and remedies which are provided for by the LRA.
- Full Text:
- Date Issued: 2010
- Authors: Voultsos, Leon
- Date: 2010
- Subjects: Employees -- Dismissal of -- South Africa , Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10217 , http://hdl.handle.net/10948/1288 , Employees -- Dismissal of -- South Africa , Unfair labor practices -- South Africa
- Description: Section 157 of the LRA provides for the nature and extent of the Labour Courts jurisdiction. This provision has been subjected to extensive interpretation by the Judiciary and the various interpretations of the courts have not been entirely consistent. Specific mention is made of the relevance and applicability of section 157(1) and (2) of the LRA regarding the overlap between administrative law and contractual law into labour law. Reference will be made to case law specifically dealing with cases concerning the jurisdiction of the civil courts and labour courts where cases concerning employment and labour matters were brought either in terms of the PAJA or on the basis of contract law. The question arose whether matters which appear to be quintessential labour matters but simultaneously also capable of being entertained on the basis of the PAJA or in terms of contract law are matters which, generally, in terms of section 157(1) of the LRA fall within the exclusive preserve of the Labour Court or, in terms of section 157(2) of the LRA, fall within the concurrent jurisdiction of the High Court and the Labour Court. The discussion which follows will also include reference to the current legal position pertaining to the prohibition of public sector employees from pressing their claims relating to employment or labour matters in the civil courts on the basis of the PAJA as decided in the Chirwa v Transnet Ltd (2008) 2 BLLR 97 (CC) and; the impact thereof on employees pressing claims pertaining to employment and labour matters in the civil courts on the basis of contract law. In addition the similarity of considerations which are common to both administrative law and contract law regarding the “overlap” of each into labour law will be considered and discussed. In the light of the discussion which follows agreement will be expressed with certain decisions of the High Court and the SCA where civil courts were held to retain jurisdiction to entertain common law contractual claims concerning labour and iv employment matters as opposed to restricting all employment and labour matters to the forums established under the LRA and to claims and remedies which are provided for by the LRA.
- Full Text:
- Date Issued: 2010
Termination of the contract of employment not constituting dismissal
- Sipuka, Sibongile, Supervisor details
- Authors: Sipuka, Sibongile , Supervisor details
- Date: 2015
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor discipline -- Law and legislation -- South Africa , Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/4811 , vital:20701
- Description: Section 23 of the Constitution provides that everyone has a right to fair labour practice. The constitutional right to fair labour practices includes the right not to be unfairly dismissed and is given effect to by section 185 of the LRA. The constitutional right not to be unfairly dismissed is given effect to by Chapter VIII of the Labour Relations Act 66 of 1995 (the LRA), which provides a remedy for an unfair dismissal. Schedule 8 of the LRA contains a “Code of Good Practice: Dismissal”, which the Commission for Conciliation, Mediation and Arbitration (the CCMA) and the Labour Courts must take into account when determining the fairness of a dismissal. The LRA expressly recognises three grounds for termination of the employment contract namely; misconduct on the part of the employee, incapacity due to an employee’s poor work performance, ill health or injury and termination due an employer’s operational requirements. In terms of the LRA, a dismissal must be procedurally and substantively fair. The requirements for procedural and substantive fairness are contained in Schedule 8 of the Code of Good Practice: Dismissal. The provisions of section 185 of the LRA apply to all employers and employees in both the public and the private sectors, with the exception of members of the National Defence Force, the National Intelligence Agency, the South African Secret Service and the South African National Academy of Intelligence. Section 213 of the LRA defines an “employee” as any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration and any person who in any manner assists in carrying out or conducting the business of an employer. Section 200A of the LRA sets out the presumption as to who is an employee. This is a guideline to assist in determining who is an employee. The Basic Conditions of Employment Act 75 of 1997 (the BCEA) sets minimum terms and conditions of employment including the notice of termination of employment. Under the common law an employment contract of employment can be terminated on either the expiration of the agreed period of employment or on completion of the specified task in cases of fixed-term contracts. Also, in terms of general contract principles an employment contract may be terminated by notice duly given by either party or by summary termination in the event of a material breach on the part of either party. The death of either party may terminate the employment contract. However, the death of an employer will not necessarily lead to the contract’s termination. An employment contract may also terminate by operation of law or effluxion of time namely retirement and coming into being of fixed-term contracts, by mutual agreement, employee resigning, due to insolvency of the employer and due to supervening impossibility of performance. In the circumstances indicated above, the termination of the contract of employment does not constitute dismissal. This means that the CCMA and the Labour Court do not have jurisdiction to determine should the employee allege that his or her dismissal was unfair. It has been argued that the instances where a termination of a contract of employment is terminated, but there is no dismissal should be scrutinised to avoid a situation where employees are deprived of protection afforded by the fundamental right not to be unfairly dismissed. There have been some instances where employment contracts contain clauses that provide for automatic termination of employment contracts. It has been held by the courts in various decisions that such clauses are against public policy and thus invalid. The Labour Court stated that a contractual device that renders the termination of a contract something other than a dismissal is exactly the exploitation the LRA prohibits. There are various court decisions providing guidelines of circumstances in which termination of employment may be regarded as not constituting dismissal. The main focus of the treatise is to discuss these instances and critically analyse the approach taken by forums like the CCMA, bargaining councils and the Labour Court in dealing with such instances.
- Full Text:
- Date Issued: 2015
- Authors: Sipuka, Sibongile , Supervisor details
- Date: 2015
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor discipline -- Law and legislation -- South Africa , Unfair labor practices -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/4811 , vital:20701
- Description: Section 23 of the Constitution provides that everyone has a right to fair labour practice. The constitutional right to fair labour practices includes the right not to be unfairly dismissed and is given effect to by section 185 of the LRA. The constitutional right not to be unfairly dismissed is given effect to by Chapter VIII of the Labour Relations Act 66 of 1995 (the LRA), which provides a remedy for an unfair dismissal. Schedule 8 of the LRA contains a “Code of Good Practice: Dismissal”, which the Commission for Conciliation, Mediation and Arbitration (the CCMA) and the Labour Courts must take into account when determining the fairness of a dismissal. The LRA expressly recognises three grounds for termination of the employment contract namely; misconduct on the part of the employee, incapacity due to an employee’s poor work performance, ill health or injury and termination due an employer’s operational requirements. In terms of the LRA, a dismissal must be procedurally and substantively fair. The requirements for procedural and substantive fairness are contained in Schedule 8 of the Code of Good Practice: Dismissal. The provisions of section 185 of the LRA apply to all employers and employees in both the public and the private sectors, with the exception of members of the National Defence Force, the National Intelligence Agency, the South African Secret Service and the South African National Academy of Intelligence. Section 213 of the LRA defines an “employee” as any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration and any person who in any manner assists in carrying out or conducting the business of an employer. Section 200A of the LRA sets out the presumption as to who is an employee. This is a guideline to assist in determining who is an employee. The Basic Conditions of Employment Act 75 of 1997 (the BCEA) sets minimum terms and conditions of employment including the notice of termination of employment. Under the common law an employment contract of employment can be terminated on either the expiration of the agreed period of employment or on completion of the specified task in cases of fixed-term contracts. Also, in terms of general contract principles an employment contract may be terminated by notice duly given by either party or by summary termination in the event of a material breach on the part of either party. The death of either party may terminate the employment contract. However, the death of an employer will not necessarily lead to the contract’s termination. An employment contract may also terminate by operation of law or effluxion of time namely retirement and coming into being of fixed-term contracts, by mutual agreement, employee resigning, due to insolvency of the employer and due to supervening impossibility of performance. In the circumstances indicated above, the termination of the contract of employment does not constitute dismissal. This means that the CCMA and the Labour Court do not have jurisdiction to determine should the employee allege that his or her dismissal was unfair. It has been argued that the instances where a termination of a contract of employment is terminated, but there is no dismissal should be scrutinised to avoid a situation where employees are deprived of protection afforded by the fundamental right not to be unfairly dismissed. There have been some instances where employment contracts contain clauses that provide for automatic termination of employment contracts. It has been held by the courts in various decisions that such clauses are against public policy and thus invalid. The Labour Court stated that a contractual device that renders the termination of a contract something other than a dismissal is exactly the exploitation the LRA prohibits. There are various court decisions providing guidelines of circumstances in which termination of employment may be regarded as not constituting dismissal. The main focus of the treatise is to discuss these instances and critically analyse the approach taken by forums like the CCMA, bargaining councils and the Labour Court in dealing with such instances.
- Full Text:
- Date Issued: 2015