Doctoral Degrees (Mercantile Law)

Permanent URI for this collection

https://scholar.sun.ac.za/handle/10019.1/3625

Browse

Browsing Doctoral Degrees (Mercantile Law) by browse.metadata.advisor "Garbers, Christoph"

Now showing 1 - 5 of 5
  • Thumbnail Image
    Item
    A comparative legal analysis of the accommodation of neurodiversity in the workplace : towards a universal right to reasonable accommodation
    (Stellenbosch : Stellenbosch University, 2024-03) Conradie, Riana; Garbers, Christoph; Stellenbosch University. Faculty of Law. Dept. of Mercantile Law.
    ENGLISH ABSTRACT: Workforces are made up of individuals with differences in personal characteristics, differences that may be traced back to unique personality types and traits and – sometimes – neurodivergence. Due to the inherent subjectivity of the interpersonal relationships that form the foundation of a work environment, these differences in personal characteristics inevitably lead to tension. In addition, as part of managing a work environment employers frequently take decisions that may be influenced by views and perceptions regarding employees’ personal characteristics. This study starts with a descriptive examination of the meaning of personality and the influence that personality traits and types may have on employment. This is followed by a descriptive examination of neurodivergence, the various forms of neurodivergence, and the impact of these conditions on the work environment. Building on these descriptive and conceptual underpinnings, the legal implications of neurodiversity in the workplace are investigated by identifying which principles of the existing South African employment law framework may be utilised to provide protection and promote respect for neurodiversity and the neurodiverse differences between employees. This encompasses a discussion of the South African employment law rules relating to recruitment and selection of employees, some of the rules applicable to the day-to-day management of employees, and the rules relating to termination of employment that may be (in)directly influenced by considerations of neurodiversity. The focus thereafter shifts to consider the legal principles of employment discrimination law, where it is found that the listed ground of disability and an unlisted arbitrary ground may potentially be used as the applicable grounds of discrimination by employees if they are prejudiced due to their neurodiverse characteristics. In addition, the possibility that the rules on reasonable accommodation may be utilised as primary mechanism to properly regulate neurodiversity in the work environment and protect against prejudicial treatment of employees due to their inherent personal neurodiverse characteristics is also considered. The South African position and potential employment law rules that may apply to the management of neurodiversity in the work environment is compared to the position in the United Kingdom by focusing on the meaning of disability, the right to reasonable adjustments, and the right to request flexible working arrangements. Finally, the conclusions that may be drawn from this study are emphasised and are followed by some recommendations on how (reasonable) accommodation of neurodiversity in the work environment may appropriately be used as primary mechanism to provide employees with sufficient and appropriate protection of differences in neurodiverse characteristics. Even though this study focuses on neurodiversity and neurological differences between employees, the principles and recommendations from this study may be of value in relation to the appropriate management and regulation of all inherent differences between employees.
  • Thumbnail Image
    Item
    Historical and comparative perspectives on trade union regulation with specific emphasis on the accountability of trade unions to their members
    (Stellenbosch : Stellenbosch University, 2020-12) Greenhalgh, Bradley Paul; Garbers, Christoph; Stellenbosch University. Faculty of Law. Dept. of Mercantile Law.
    ENGLISH ABSTRACT: How do members hold their own trade unions accountable in South Africa? What legal mechanisms, if any, are available to assist union members in receiving adequate representation and service from their unions? This study approaches these questions through a comparative and historical examination of the regulation of the union member relationship in the UK, USA and the RSA. The study commences with an examination of what unions do, how they function and what benefits potentially accrue to their members, while the role played by unions in utilising collectivisation to offset the bargaining power of employers is demonstrated. The need for organised labour, by society in general, but South Africa specifically, is brought into sharp relief. This is, however, offset by the examination of 25 constitutions of broadly representative South African trade unions, where the lack of proper regulation of the union-member relationship is brought to the fore. This already means the common law and current judicial approach that is so reliant on the interpretation and implementation of trade union constitutions to address union-member disputes is unsuitable, certainly in those instances where the constitution is either silent or ambiguous, or where the nature of the relationship between the union and its member(s) mimics that of the constantly present imbalance of power and influence between employers and employees. The comparative examination of union accountability is undertaken against the backdrop of the common historical phases of proscription, acknowledgement/assimilation, and readjustment of and towards trade unions. The historical and contemporary regulation of the union-member relationship in South Africa is examined in the same way. The study demonstrates that purely statutory regulation of the union member relationship by means of punitive provisions and inter-union self-regulation measures are not feasible. A series of possible legal mechanisms – that draw from the comparative examination – are suggested, even though they are to be utilised in a collective (rather than individual) way. Even these suggestions, however, are subject to the challenges of cost-effectiveness, accessibility and efficiency of enforcement by (the) average union member(s). Three proposals are made to foster improved union member accountability: Firstly, the use of section 103A of the LRA by the Registrar so as to place unions that meet the appropriate criteria under administration, in order to restore accountable functioning and elevate the interests of the member(s) over that of the officials of the union; secondly, the introduction of a duty of fair representation – to be administered by the CCMA – to hold both union and employer accountable to members, and; thirdly, in conjunction with the first two proposals, the use of a package of further measures (and an associated information campaign), such as bolstering the financial/institutional capacity of the Registrar’s office, compelling the inclusion of accountability clauses within union constitutions, and minor amendments to the LRA with regard to balloting, reporting/transparency (and the enforcement thereof). If implemented, the expected outcomes are improved labour relations, increased accountability and professionalisation of trade union administration, a realignment of the employer-union divide and elevating the awareness of union member rights and concomitant obligations on trade unions – all of which are of critical importance in South Africa’s post-Marikana society.
  • Thumbnail Image
    Item
    The impact of the legislative regulation of individual educator performance on the delivery of quality basic education
    (Stellenbosch : Stellenbosch University, 2022-03) De Villiers, Cecile; Garbers, Christoph; Stellenbosch University. Faculty of Law. Dept. of Mercantile Law.
    ENGLISH ABSTRACT: The study was motivated by three factors. First, the critical importance of education for each individual and our society as a whole. Secondly, the poor state of basic education in South Africa. Thirdly, the central role educators play in the delivery of quality basic education. The process of education is a means of self-actualisation and provides individuals with the opportunity to experience their full intellectual and emotional potential as well as the means to participate in societal processes. It is also valuable to society as investment in education enriches the human capital of a country, is a source of responsible adults and a driver of economic growth. For the South African society, the most important contribution of education is that it is a vehicle for transformation and one of the only societal equalisers that exist. Unfortunately, despite the importance of quality education, all learners in South Africa do not have access to education of an equal standard. Qualified, competent, and professional educators are central to the delivery of quality basic education. This study identifies the educator as the most important role player in the delivery of quality basic education. The focus is on the employment of educators in public basic education which is defined to include school education in South Africa from grade 1 to grade 12. For purposes of the study, educator performance was defined to include the capacity and conduct of educators in delivering basic education. “Capacity” refers to the qualifications, competence, content knowledge and skills of educators whereas “conduct” refers to the professionalism and attitude of educators. One contributing factor to the poor state of basic education is the fragmented and otherwise inappropriate legislative regulation of educator performance in South Africa. For this reason, the experience with misconduct and incapacity of educators within the current legislative framework is investigated. The approach is descriptive and analytical - both quantitative and qualitative. It includes a description of existing research and views on the prevalence and impact of misconduct and incapacity of educators in and on basic education in South Africa. This is followed by a statistical overview of the extent of the application of discipline in the basic education sector based on information from the different Provincial Departments of Education and from arbitrations conducted by the Education Labour Relations Council. The qualitative analysis of these arbitration awards is particularly important since each matter provides insight into the application of legal principles and the exercise of discretion by the different role players responsible for addressing misconduct and incapacity in basic education. Based on these insights, deficiencies in the current system of regulation of educator performance are tabulated. This, together with comparative insights from the English experience, is used to make specific proposals for a range of legislative amendments.
  • Thumbnail Image
    Item
    The legal regulation of trade union recognition in South Africa in historical and comparative context
    (Stellenbosch : Stellenbosch University, 2023-03) Germishuys-Burchell, Wilhelmina; Garbers, Christoph; Calitz, Karin Beatrix; Stellenbosch University. Faculty of Law. Dept. of Mercantile Law.
    ENGLISH SUMMARY : This study investigates the impact and importance of the legal regulation of trade union recognition and associated challenges in South Africa. It evaluates the current regulation of trade union recognition, including legislation and judicial attitudes apparent from the interpretation, application, and enforcement of such legislation, to ascertain its continued appropriateness in the current South African industrial relations environment. The study considers the policy choices of both voluntarism and majoritarianism underlying the Labour Relations Act 66 of 1995 (“LRA”) and the “workplace” constituency to which it applies as factors that might be contributing to challenges experienced in the current regulation of collective bargaining in South Africa. It evaluates the current model of trade union recognition and representativeness as it applies to the acquisition by trade unions of organisational rights, collective bargaining rights and trade union recognition for purposes of retrenchment consultation. It recognises that the specific model chosen to regulate the representative status of trade unions has a significant effect on the ability of trade unions to organise and conclude collective agreements and, as such, on the distributive effects of such agreements in the labour market and broader society. The study commences with an historical overview of the regulation of trade union recognition under the 1956 LRA and thereafter considers the 1995 LRA as a product of criticism against the 1956 LRA. Specific issues considered, largely based on the analysis of the relevant decisions by the Constitutional Court, include the following: the impact of Constitutional Court jurisprudence relating to trade union recognition on the process of collective bargaining and on the legal regulation of the right to strike; the role of representativeness and its link with the workplace as the constituency for recognition and acquisition of organisational rights; the often winner-takes-all effect of the current model on collective bargaining as a major cause of labour unrest; the reactive role the legislature has played over the past, almost three decades to address challenges; the extent to which intervention should take place to safeguard the institution of collective bargaining from being undermined as well as the regulation of collective agreements as the product of collective bargaining and as the primary source of terms and conditions of employment. The comparative review of Canadian law focuses on a number of issues selected specifically for their potential to provide insights into how the weaknesses in South African regulation may be remedied. This includes insights into the accommodation of special or significant minority interests and how to address recognition in the context of multi-location employers. The thesis concludes with remarks on the insights gained from the Canadian model and the 1956 LRA. Where appropriate, suggestions are made on the way forward for South Africa as to the appropriate regulation of trade union recognition and representativeness.
  • Thumbnail Image
    Item
    The Protection of Privacy in the Workplace: A Comparative Study
    (Stellenbosch : Stellenbosch University, 2011-12) Gondwe, Mimmy; Dupper, Ockert; Garbers, Christoph; Stellenbosch University. Faculty of Law. Dept. of Mercantile Law.
    ENGLISH ABSTRACT: The importance of privacy lies in the fact that it represents the very idea of human dignity or the preservation of the ‘inner sanctum’. Not surprisingly, however, operational concerns of employers and technological developments combine continuously to challenge the preservation of privacy in the workplace. Employees the world over are exposed to numerous privacy invasive measures, including drug testing, psychological testing, polygraph testing, genetic testing, psychological testing, electronic monitoring and background checks. Hence, the issue at the heart of this dissertation is to determine to what extent privacy is protected in the South African workplace given advancements in technology and the implications (if any) for the right to privacy as such. A secondary aim of the dissertation is to attempt to provide a realistic balance between the privacy concerns of employees and the operational needs of employers in this technological age. As such the main focus of dissertation falls within the sphere of employment law. In order to provide an answer to the research issue discussed above, the dissertation addresses five ancillary or interrelated issues. First, the broad historical development of the legal protection of privacy is traced and examined. Second, a workable definition of privacy is identified with reference to academic debate and comparative legislative and judicial developments. Third, those policies and practices, which would typically threaten privacy in the employment sphere are identified and briefly discussed. Fourth, a detailed evaluation of the tension between privacy and a number of selected policies and practices in selected countries is provided. More specifically, the dissertation considers how these policies and practices challenge privacy, the rationale for their existence and, if applicable, how these policies and practices – if necessary through appropriate regulation – may be accommodated while simultaneously accommodating both privacy and the legitimate concerns of employers. The selection of these practices and policies is guided by two considerations. At the first level the emphasis is on those challenges to privacy, which can be traced back to technological developments and which, as such, foster new and unique demands to the accommodation of privacy in the workplace. The secondary emphasis is on those policies, which are representative of the fundamental challenges created by new technologies to privacy. To effectively address the above issues the dissertation uses the traditional legal methodology associated with comparative legal research, which includes a literature review of applicable law and legal frame work and a review of relevant case law and a comparative study of selected foreign jurisdictions.