UWCScholar :: Browsing by Author "Du Toit, Darcy"

Browsing by Author "Du Toit, Darcy"

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Arbeidsreg in 'n maatskaplike verband
(Juta Law, 1995) Du Toit, Darcy
Introduction: 'n Regsteksboek is nie bloot 'n uiteensetting van regs reels nie. Dit is, in die eerste plek, 'n seleksie van bespreekingspunte en, terselfdetyd, 'n evaluasie van die selekteerde gegewens wat uitgaan van 'n bepaalde referensiekader. Tog konfronteer die eindproduk die student as meer as net 'n boek. Dit word bestudeer (nie noodwendig onkrities nie) as 'n objektiewe verklaring van die onderwerp of, tenminste, van die "feite" wat jy moet ken om te slaag. Direk of indirek beinvloed so 'n boek, en dus die skrywer daarvan se uitgangspunte, die sienswyse waarmee groot getalle toekomstige regspraktisyns en -akademici die betrokke vakgebied sal begryp, die manier waarop hulle geneig sal wees om besondere reels te interpreteer en die doelstellings wat hulle daarmee identifiseer.
Business restructuring and operational requirements dismissals: Algorax and beyond
(Juta Law, 2005) Du Toit, Darcy
Introduction:This article revisits a vexed and much-debated question: when is it 'fair' for an employer, in the course of restructuring its business, to dismiss an employee for declining to accept changes in her or his terms and conditions of employment? The background to this question is the fiercely competitive climate in which many businesses, exposed to the full force of global economic pressures, find themselves, giving rise to the need for constant adaptation and, conversely, the spectre of dismissal for many employees. The legal context is a lengthening series of Labour Court (LC) and Labour Appeal Court (LAC) decisions in which the meaning of substantive fairness under these circumstances has been considered in great detail, but in divergent ways.
Collective bargaining and worker participation
(Juta Law, 2000) Du Toit, Darcy
Introduction: The relationship between collective bargaining and worker participation has two main aspects - • the interaction between collective bargaining as a process (at workplace; sectoral and subsectoral level) and the process of worker participation through workplace forums and similar structures; and • the demarcation of topics for collective bargaining from topics dealt with by workplace participatory structures. This article is concerned with the first aspect - the organizational and institutional sides of the process. Collective bargaining is widely accepted as the primary means of determining terms and conditions of employment. In South Africa its importance has been underlined by the legacy of deep adversarialism between organized labour and employers, the recent struggles of the trade union movement to achieve recognition and continued wariness on the part of unions against real or perceived attempts by employers to undermine their hard-won status. The right to bargain collectively has been written into the Constitution and is guarded jealously in the workplace. In this polarized climate it is inevitable that trade unions will tend to view participatory structures as a potential threat, an instrument that may be used by employers to marginalize unions and avoid collective bargaining.
A common law hydra emerges from the forum-shopping swamp
(Juta Law, 2010) Du Toit, Darcy
Corporatism and collective bargaining in a democratic South Africa
(Juta Law, 1995) Du Toit, Darcy
Introduction:The theme of 'emerging models of worker participation and representation' is uniquely appropriate in relation to South Africa today. In February 1995 a draft labour statute, designed to replace the existing Labour Relations Act and corresponding statutes applicable to the public, education and agricultural sectors, was published One of its more radical innovations is the proposal for a system of worker participation by means of elected bodies to be known as 'workplace forums'. The draft law has turned out to be controversial, and at the time of writing it is not clear what its fate will eventually be. Inter alia, the chapter on workplace forums has reportedly encountered opposition from trade unions as well as employers. Debate of this nature, however, is integral to the emergence of new industrial relations models. This article will attempt to evaluate the proposed system of worker participation and to explore some of its implications which may be of interest internationally. In particular, it will focus on the envisaged relationship between workplace forums and trade unions - a question that will be crucial to the success or failure of the project.
Democratising the employment relationship: a conceptual approach to labour law reform and its socio-economic implications
(Juta Law, 1993) Du Toit, Darcy
Introduction: The constitutional debate in South Africa has place the related issues of democracy and increase production and redistribution of wealth centrally on the agenda. Democratisation of the employment relationship, it will be argued, it is essential to both. At first sight there has been a certain meting of minds between employers and organised labour around this question. The demand for greater democracy in the workplace has been raised increasingly from the side of trade unions and the mass democracy movement in recent years while some employers have taken initiatives of their own to involve workers in decision-making.
Enterprise responsibility for sexual harassment in the workplace: comparing Dutch and South African law
(Kluwer Law International, 2008) Du Toit, Darcy
Introduction: Sexual harassment in the workplace is generally deplored, destructive of working relationships and unlawful. Despite this it is widespread and possibly on the increase. In Spain, according to a 2006 survey, 7,9% of women workers had been harassed by managers and colleagues during the previous 12 months. In the Netherlands the number of employees who had suffered sexual harassment by fellow-employees in the previous 12 months doubled from 2,5% in 2000 to 5,3% in 2003. Why, despite all measures to discourage it, does it remain so disturbingly prevalent?
The Evolution of the concept of 'unfair discrimination' in South African Labour Law
(Juta Law, 2006) Du Toit, Darcy
Introduction:This article examines the meaning and scope of the prohibition of unfair discrimination against employees contained in s 6 of the Employment Equity Act in the light of the development of the concept of 'unfair discrimination' from the early 1980s onwards. In so doing, it ipso facto delineates the content and scope of the defences available to an employer faced with a claim of this nature. Though focusing on direct discrimination, it will suggest that the same fundamental principles are applicable to indirect discrimination. Some conceptual points of departure should be noted. The prohibition of unfair discrimination by the EEA derives from the basic right to 'equal protection and benefit of the law' contained in s 9 of the Constitution and, more specifically, from the constitutional injunction that '[n]ational legislation must be enacted to prevent or prohibit unfair discrimination'.
Extending the frontiers of employment regulation: the case of domestic employment in South Africa
(Faculty of Law, University of the Western Cape, 2010) Du Toit, Darcy
Domestic workers form one of the most vulnerable and exploited sectors of the workforce in the world economy. In 2002 South Africa became one of relatively few countries to promulgate special legislation aimed at extending protection to domestic workers in the form of Sectoral Determination 7: Domestic Worker Sector, South Africa. In the context of current debate about setting international standards for the domestic employment sector by means of a Convention and/or Recommendation of the International Labour Organisation, the article examines what has been achieved in South Africa over the past decade in extending legal protection to domestic workers, problems that have been encountered and possible ways in which those problems may be addressed.
An ill contractual wind blowing collective good? Collective representation in non-statutory bargaining and the limits of union authority
(Juta Law, 1994) Du Toit, Darcy
Induction:In the statutory arena one facet at least, the interaction between union and employer parties at industrial council level, is defined by the Labour Relations Act 28 of 1956 (LRA). The other crucial nexus, that between the union and its constituents, is not expressly defined but can be construed in the context of the statutory process. This may be one reason why the issue has given rise to relatively little litigation or debate. No comparable framework exists within which to situate non-statutory bargaining. Case law on the subject, though on the increase, is still meagre. Three such cases are reviewed below. All three turn on the question whether agreements (purportedly) entered into by union officials had in fact been authorized by members of the union and, hence, whether the agreements were valid. In all three cases the agreements were upheld though with little in the way of a common rationale to underpin future legal development. This article will argue that the key to the development of a coherent approach lies in a more consistent application of the principle of majoritarianism.
New light on old questions? University of Cape Town v Auf Der Heyde (Labour Appeal Court)
(Juta Law, 2002) Du Toit, Darcy
Introduction:Thomas Auf der Heyde responded to an advertisement for a position of senior lecturer in chemistry at the University of Cape Town (UCT), the duration of which was 'initially for three years with a possible extension to five years'. On 8 May 1995 he was appointed in terms of a 'three-year contract' which stated that it 'does not carry any commitment to a permanent appointment'. Two other lecturers, both black, were appointed at the same time on similar terms. Just over two years later UCT advertised a permanent position of lecturer in the Department of Chemistry. Auf der Heyde applied unsuccessfully. Both of his abovementioned colleagues were, however, appointed to specially created permanent positions which had not been advertised. Auf der Heyde contended that UCT's failure to appoint him or to renew his fixed-term contract amounted to an automatically unfair dismissal, alternatively, that UCT was guilty of direct discrimination against him, alternatively, that his dismissal was unfair due to UCT's failure to comply with the requirements for a fair dismissal on operational grounds. UCT denied that Auf der Heyde had been dismissed or that it had unfairly discriminated against him.
Not ‘work like any other’: Towards a framework for the reformulation of domestic workers’ rights
(Juta Law, 2011) Du Toit, Darcy
Introduction: On 15 June 2010 the 99th session of the International Labour Conference (ILC) adopted proposals for a Convention, supplemented by a Recommendation, on decent work for domestic workers. From this has emanated a draft Convention and Recommendation, to be debated by member states and representative organisations of employers and workers around the world, from which proposed amendments will emerge. Once adopted by the ILC in 2011, a Convention will require ratifying member states to formulate and implement laws or other measures to provide domestic workers with the stipulated protection
Oil on troubled waters? The slippery interface between the contract of employment and statutory labour law
(Juta Law, 2008) Du Toit, Darcy
Introduction: Although in labour law the term ‘employment relationship’ means more than a contractual relationship, in the vast majority of cases the contract of employment serves as ‘port of entry’ to the employment relationship. In general, its terms (express or implied) will govern the employment relationship except to the extent that they are unlawful or have been superseded by statute or collective agreement. This is the essence of what used to be known as the law of master and servant.
The prohibition of unfair discrimination: applying Section 3(d) of the Employment Equity Act
(Juta Law, 2009) Du Toit, Darcy
Introduction: This chapter sets out to examine the concept of “unfair discrimination” in the employment context as it has evolved over the past three decades. It will note the efforts made by the courts to clarify it and suggest that, in the process, the opposite may have happened. And it will argue that much of this endeavour was unnecessary because, all the time, an answer was readily at hand. Since 1998 at least a peremptory signpost to that answer has been provided by section 3(d) of the Employment Equity Act of 1998 – hence the title above.
Protection against unfair discrimination in the workplace: are the courts getting it right?
(Juta, 2007) Du Toit, Darcy
Introduction: No area of South African law is more critical than the prohibition of unfair discrimination, especially in the workplace. Under apartheid, discrimination against workers on grounds such as race and sex was not only permitted; it was legally enforced. In addition, employers had a relatively free hand to discriminate on grounds such as religion, disability or political opinion. No stable economy, let alone a democratic society, can be built on such foundations. The eradication of “unfair discrimination” in the workplace was essential to developing the new employment dispensation envisaged by the Constitution and the Labour Relations Act of 1995 (‘LRA’). Section 6 of the Employment Equity Act 55 of 1998 (‘EEA’) now embodies this objective
Remedies for unfair dismissal under the Labour Relations Act 66 of 1995
(University of the Western Cape, 2001) Abrahams, Joycell Ormonde; Du Toit, Darcy
The Labour Relations Act 66 of 1995 (the Act) is primarily aimed at the advancement of economic development, social justice, labour peace and the democratisation of the workplace. This is principally done through collective bargaining to give effect to the fundamental right of everyone to fair labour practices. The approaches of both the Commission for Conciliation, Mediation and Arbitration (CCMA) and the Labour Court in their interpretation of the remedies for unfair dismissal under sections 193 and 194 of the Act, will by analysed to establish the nature and extent of these remedies. A comparative analysis of the 1956 Labour Relations Act with sections 158 and 138 (9) of the Act will be undertaken to ascertain the powers of the Labour Court or an arbitrator to order or award re-instatement or re-employment, and the conditions under which such orders or awards should be given or refused.
Self-Regulated corporate social responsibility: the impact on employment relations at European corporations in South and Southern Africa: a preliminary overview
(Juta Law, 2009) Du Toit, Darcy
Introduction:Corporate social responsibility (CSR) is a complex topic that has generated a host of policy documents and a vast literature. This article sets out to examine a very specific aspect of it: the impact of CSR as practised by European enterprises in South and southern Africa, particularly in the area of terms and conditions of employment. '[H]ow a company relates to its own people', it has been said, 'will be make or break in terms of its reputation as a corporate citizen. The issues affecting the workplace are wide-ranging and significant. Addressing them can go some way towards bridging the gap between the rhetoric of being 'an employer of choice' and the reality. Conversely, 'how a company treats its people' may be seen as a litmus test of corporate values, pivotal to and emblematic of an enterprise's engagement with its socio-economic environment. In the employment arena, moreover, company policy is subject to close scrutiny and ongoing challenge by labour while, at the same time, employment legislation offers a ready frame of reference.
The small business sector: deregulation or collective bargaining?
(Juta Law, 1993) Du Toit, Darcy
Introduction:'Abraham Adamson, owner of A&A Motor Spares in Athlone, Cape Town, was dealing with a client in June 1991 when the sheriff of the court walked in and seized 21 gearboxes and various other movable assets. His [Adamson's] crime was failing to pay two of his 14 employees the overtime rates stipulated by an industrial council which a few weeks earlier he never even knew existed. So begins one of numerous press reports in the last few years recording the burdens placed on small entrepreneurs by legal regulation in general and industrial councils in particular. A senior manager of the Small Business Development Corporation (SBDC) was reported as saying that 'he is aware of 10 cases in the Western Cape where businesses were liquidated by industrial councils over the last two years, generally for non-payment of levies'. Two comments by small employers, quoted in the same report, pithily express their viewpoint: 'Either I pay them [workers] below the minimum wage or I close my doors and they lose their jobs. They prefer to have their jobs.' 'They want to tell me when I can open and close my factory at Christmas. These people are killing employment. If I comply with these rules I will have to close down my company.
Small enterprises, Industrial Relations and the RDP
(Juta Law, 1995) Du Toit, Darcy
Introduction: The small, medium and micro enterprise (SMME) sector spans an immense sweep of economic activity, from entirely non-regulated to entirely regulated businesses, 'from the survivalist activities of informal sector hawkers to high-tech manufacturing enterprises employing fewer than 200 workers'. It comprises, in reality, a multitude of subsectors of different branches of the economy, each with its own specific issues, problems and potentialities. In addressing the issue of industrial relations, it will be neither appropriate nor fruitful to try to deal with this multifaceted 'sector' in its entirety. In the first place, most informal enterprises are conducted by single individuals, families or partnerships and do not involve employment relationships in the normal meaning of the term. In the second place, much informal activity is conducted by unemployed persons seeking merely to maintain themselves until jobs become available. Such enterprises are transient and difficult to target or track for purposes of industrial relations policy. Thirdly, structured collective labour relations as we know them are in many respects premised on the realities of larger workplaces and may be less appropriate to workplaces employing only one, two or a handful of people.
Statutory collective bargaining: a duty of fair representation?
(Juta Law, 1993) Du Toit, Darcy
Introduction:An issue that has received little attention in our law is the nature of a union's duty vis-à-vis its membership in the course of collective bargaining and the consequences of breach of such duty. This is, in the first instance, a practical question of law and industrial relations which may determine the enforceability of disputed collective agreements. Over and above this it is a question of democracy. Trade unions are widely regarded as a means whereby individually powerless employees can gain a degree of control over their working lives and moreover, in today's political climate, over socio-economic policy and labour legislation. But such control can only be meaningful if the union itself is subject to democratic control by its members.

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