Research Articles (Mercantile Law)

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Browsing Research Articles (Mercantile Law) by Author "Garbers, Christoph"

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    A comparative perspective on the application of domestic labour legislation in international employment disputes
    (Juta Law Publishing, 2013-01) Calitz, Karin; Garbers, Christoph
    An analysis of different methods of dealing with the application of domestic legislation in international employment disputes in the chosen jurisdictions indicates that two broad approaches are followed, namely a private international law approach and an interpretive approach. It is recommended that South Africa should follow a combination of these approaches, as is done in Britain, instead of the strict interpretive approach followed currently. This would entail that in deciding whether legislation is applicable, the court should take connecting factors into consideration. More specifically, it is further recommended that the definition of "employee" in the Code of Good Practice: Who is an Employee? be amended to provide guidelines to the Labour Court and the CCMA regarding connecting factors.
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    Employment discrimination law into the future
    (Juta Law, 2018) Garbers, Christoph; Le Roux, Peter
    Important amendments to the Employment Equity Act 55 of 1998 (“EEA”) were introduced in 2014, notably conferring jurisdiction on the Commission for Conciliation, Mediation and Arbitration in employment discrimination cases, inserting the phrase ‘arbitrary ground’ in section 6(1) of the EEA, explicitly providing for (and proscribing) unfair discrimination in terms and conditions of employment and also including a brand new onus provision in section 11. In this contribution, the impact of these amendments on our conceptual understanding of employment discrimination law is considered in the context of: First, world-wide trends in the development of employment discrimination law and the South African adoption of employment discrimination law in line with those trends; secondly, the correct approach to interpretation of the EEA in light of ILO Convention 111 and the Constitution,1996; thirdly, the judicial development of principles applicable to employment discrimination over the past 25 years, which precedent provides a lot of certainty about the conceptual foundations of our employment discrimination law; and, fourthly, the initial academic views, experiences and judicial approaches after the amendments came into effect. Ultimately, the authors argue that these amendments do not signify, nor do they require, any significant departure from the pre-amendment conceptual approach to employment discrimination established through precedent over the past 25 years.
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    The job security of employees of financially distressed companies
    (Juta, 2022-02-13) Loubser, Mieka E.; Garbers, Christoph
    This contribution considers the legislative regulation of the job security (which boils down to preservation of employment) of employees in case of financial distress of a company. It juxtaposes the legislative regulation of four interrelated processes a company may engage in where it finds itself in financial distress, namely a voluntary internal restructuring (especially retrenchment), the transfer of the business or part of the business, business rescue and winding up. The legislative endeavour to preserve the job security of employees in all these processes is described and analysed. The discussion shows that room exists for companies to circumvent this protection and, to the extent that the protection does apply, that it remains difficult for employees to ultimately challenge the substance of decisions negatively affecting their job security. The main protection for employees in all these processes is procedural in nature and to be found in their rights to be informed of and consulted prior to decisions negatively affecting them. In this regard, business rescue is the most employee-friendly process. Participation in this process by employees, however, requires a fine balance as it may be self-defeating and lead to winding up and the permanent loss of jobs.