Browsing by Author "Huysamen, Elsabe"
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Item Alternative dispute resolution in the BRICS nations: A comparative labour law perspective(University of the Western Cape, 2019) Gerber, Marcel; Huysamen, ElsabeAlternative dispute resolution refers to forms of dispute resolution, other than traditional and formal court based litigation. A notable benefit of alternative dispute resolution is that different processes are available for resolving a particular dispute in the most effective and efficient manner possible. Alternative dispute resolution includes but is not limited to arbitration, mediation, negotiation, conciliation and facilitation. The Constitution of the Republic of South Africa, 1996, lists human dignity, equality and the advancement of human rights and freedoms as the founding values of the Republic of South Africa. In terms of section 9(1) of the Constitution everyone is regarded as equal before the law and has the right to equal protection and benefit of the law in South Africa. Often it is however argued that traditional court based litigation hinders the full enjoyment of these rights by individuals. Consequently, alternative dispute resolution is attractive as an alternative to court based litigation as it is regarded as less expensive, more time effective and results in less conflict when it comes to resolving disputes in the most accessible, effective and efficient manner possible, in both developed and developing countries. The study will first focus on the pitfalls to traditional court based litigation in South Africa. The relevant legislation and processes which provide for alternative dispute resolution processes in South Africa, with specific focus on alternative dispute resolution in labour disputes, will be considered. Consideration will be given to the provision of alternative dispute resolution as contained in the Constitution, the Labour Relations Act 66 of 1995, the Rules for the Conduct of Proceedings before the CCMA of 2003 and the Arbitration Act 42 of 1965. The study will thereafter proceed to consider the use of alternative dispute resolution in labour disputes in Brazil, Russia, India and China, who, together with South Africa, are collectively referred to as BRICS. These five nations are considered the world’s leading emerging economies, with similar economic capabilities and demographics.Item Are employees suffering from depression in the South African workplace protected by the existing disability provisions within employment law?(University of the Western Cape, 2017) Welgemoed, Bernice; Huysamen, ElsabeDepression is a mood disorder that negatively affects the way in which a person feels about himself or herself. This can ultimately affect an employee's ability to work, through reducing his or her capabilities to perform within the workplace. Individuals who suffer from depression are often discriminated against due to the societal prejudice that continues to exist about depression. In the workplace such discrimination often prevents employees from qualifying for promotions, or prospective employees from being offered employment. The fear of being subjected to unfair discrimination because of depression frequently results in employees not disclosing their mental health status to their employers, which often then causes the depression to become worse. In order to effectively address this issue, the legislative framework in South Africa dealing with employment rights can be broadened to include depression as a disability, thereby also further protecting depressed employees from discrimination in the workplace.Item Cultural and religious diversity: Are they effectively accommodated in the South African workplace?(AJOL, 2018) Prinsloo, Monique; Huysamen, ElsabeJustice Yvonne Mokgoro and Archbishop Emeritus Desmond Tutu are but two of many public figures who have described South Africa as a “Rainbow Nation” – an expression used to highlight South Africa’s multicultural diversity. “Rainbow” is used to visually emphasise the various races, cultures, backgrounds and religions, to name but a few, of South Africa’s inhabitants. Yet, whilst diversity is in general regarded as good and necessary for societies to progress and evolve, practically managing diversity in micro-entities, such as places of work, unfortunately often turns out to be quite complicated. With diversity in mind, the general focus of this article will be on cultural and religious diversity in the South African workplace. Consequently, the meaning of “culture” and “religion” will be explored, albeit briefly, in contextualising the rest of the discussion. The article will attempt to illustrate that despite the competing cultural and religious interests of parties (with a focus on the competing interests of employers and employees in particular), South African courts appear willing to go to considerable lengths to protect the exercise of employees’ constitutional rights in this regard. In doing so the article will briefly explore cultural and religious diversity in South Africa, and in particular how such diversity filters through to, and is addressed in, the work environment. The article will proceed to consider existing legislation which addresses cultural and religious diversity in the South African workplace, and how such legislation has been implemented and interpreted by arbitrators and judges to date.Item Discussing the fundamental principles inherent to effective systems of caregiving leave(Scielo, 2020) Huysamen, ElsabeAchieving a healthy work-family life balance is becoming increasingly difficult and is generally dependent on a combination of factors. Such factors include the nature and intensity of work engaged in, available legislative or employer provided leave and time-off for caregiving (family) responsibilities, and organisational and home support towards carrying out caregiving duties. A largely female focussed approach towards available caregiving leave must also be addressed. A truly effective system of caregiving leave should be sensitive towards a number of issues, most notably: job security and availability, and sufficiency and practicality of available caregiving leave. With the aforesaid as background, the aim of this contribution is to highlight those fundamental or core principles arguably inherent to any effective system of caregiving leave.Item Effects of multiple trade unions in public institutions of South Africa: The case of Ekurhuleni East Technical and Vocational Education and Training College(University of the Western Cape, 2019) Muswaba, Manager Mhangarai; Huysamen, ElsabeThe power and influence of unions in South Africa is often associated with creating maximum beneficiation for their members. This is based on their ability to, among other things, mobilise industrial action and represent their members in negotiations for better wages. There is extensive literature on the bargaining council negotiations in South Africa, but slightly fewer studies on the effects of multiple trade unions at workplaces of public institutions. Literature has also shown that labour unions have played an integral role as a voice for social transformation in South Africa. From the time of apartheid until now in the twenty-first century, unions have continued to participate in all the facets of the country with their objectives being seen to be also distinctly political. Their formal influence grew with the deregulation of black trade unions in the early 1980s and continued to influence the direction of the economy of the country through their participation in the organs of governance of the country. Allowing for multiple trade unions at a workplace is supported by both the legislation and the common law in South Africa. The existence of such has, however, received a lot of criticism from most employer representatives. The presence of multiple trade unions in workplaces has largely been criticised for reducing efficiency of public institutions. Efficiency concerns are raised as a result of the promotion of strikes, reduction in worker productivity as well as complicating the conduct of collective bargaining.Item ‘Equal Pay for work of equal value’: Unfair discrimination within the South African workplace – A comparative study(University of the Western Cape, 2023) Palmer, Aurial Kim; Huysamen, ElsabeThe Employment Equity Act 55 of 1998 (EEA) was amended by the Employment Equity Amendment Act 47 of 2013 (EEAA), which, amongst others, introduced sections 6(4) and 6(5) into the Act. Sections 6(4) and 6(5) of the EEAA was enacted to broaden the prohibition of unfair discrimination in the workplace and strengthen enforcement mechanisms. The amended EEA recognises inequalities in employment, occupation, and income within the labour market. This study will focus on the principle of equal pay for work of equal value as incorporated in the EEA as part of anti-discrimination law in South Africa amongst others. It will consider the employers’ obligations under equal pay of work of equal value and how section 6(4) claims might give rise to a claim of unfair discrimination for purposes of the EEA. In considering the impact gender wage discrimination has in South Africa and globally, the focus of the research will analyse the complexity of the principle of equal pay for work of equal value and the provision thereof in the EEA. In doing so, the application of the principle of equal pay for work of equal value in the jurisdictions of Australia and India will be considered.Item Mediation as an alternative to litigation: A comparative study between South Africa and Germany(University of Western Cape, 2019) Öztunali, Timur Mete; Huysamen, ElsabeThe judicial court system in South Africa is overburdened, which results in parties having to wait for long periods of time to have their matters settled or even heard. Furthermore, the cost of litigation in South Africa is immense, which prevents the biggest part of the population from access to justice in line with s 34 of the Constitution of 1996. Therefore, alternative methods of dispute resolution are worth looking into. This paper will compare the mediation system of South Africa with that of Germany. This will allow for a better insight in regard to mediation within South Africa, which can help to address the above stated problems.Item The regulation of mental health in the South African workplace: a comparative analysis of South Africa, the Netherlands, Northern Ireland and the United Kingdom(University of the Western Cape, 2022) Keil, Lara; Huysamen, ElsabeThe first democratic national elections held in 1994 marked the start of a new democratic era for South Africa, built upon the foundations of non-discrimination, democracy and equality for all.1 At the heart of the new democratic South Africa, is the Constitution of the Republic of South Africa, 1996 (hereafter “Constitution”). Constitutional supremacy is arguably one of the most important attributes of a true constitutional democracy.2 Section 2 of the Constitution provides that the Constitution is the supreme law of the Republic and that any law or conduct which is inconsistent with it is invalid.3 The Constitution thus functions as the yardstick against which all laws and actions are judged.4 Any law or conduct inconsistent with the Constitution may be challenged.Item A review of the protection of fixed-term contract employees within South African labour law: A comparative discussion(University of Western Cape, 2021) Joubert, Amanda Michelle; Huysamen, ElsabeThis research aims to explore the available legislative protection afforded to atypical employment, with specific reference to fixed-term workers. Atypical, employed workers, such as fixed-term workers, are often exploited as they do not always enjoy the same rights as typical employees. Hence, they are in a precarious position with regard to employee benefits and rights. Common law provides for the automatic termination of a fixed-term contract of employment on a specific date, typically either as stipulated in the contract or upon completion of a project or task. The Constitution of South Africa, however, provides for the right to fair labour practices for everyone. In 2014 section 186(1)(b) of the Labour Relations Act (LRA) was amended, while section 198B was added as a completely new section. Together these sections are aimed at providing increased protection to fixed-term workers.Item The selection criteria to be used in dismissals for operational requirements: A comparative analysis between South Africa, Germany and United Kingdom(University of the Western Cape, 2022) Ngeyakhe, Zintle; Huysamen, ElsabeThe Labour Relations Act 66 of 1995 (LRA) makes provision for dismissal of employees based on an employer’s operational requirements (also known as retrenchments). The employer needs to meet both the substantive and procedural requirements. Substantively, the reason for retrenchment must be connected to the economical, technological, structural or similar needs of the business. Procedurally, when the employer contemplates retrenchment, it has to engage with the party as directed in s 189(1) in a meaningful joint consensus-seeking process on the topics listed under s 189(2) and (3). One of the topics that the parties must consult on, and which forms the focus of this study, is the criteria to be used to select the employee(s) who will be retrenched.