Department of Mercantile Law

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Browsing Department of Mercantile Law by Author "Conradie, Riana"

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    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.
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    Should teachers have the right to strike? The expedience of declaring the education sector an essential service
    (Juta Law Publishing, 2013-01) Calitz, Karin; Conradie, Riana
    Concern about the impact of teachers' strikes on the right of children to basic education has led to calls that education should be designated an essential service. The authors argue that this is not feasible as it is not likely that consensus will be reached by the social partners at the National Economic Development and Labour Council ("NEDLAC"). In the event that legislation to this effect is adopted, the limitation on teachers' right to strike will be open to constitutional challenge. In the light of the International Labour Organisation ("ILO")'s narrow definition of essential service and the explicit exclusion of teaching from essential services, such a limitation will in all probability be found to be unconstitutional. Prohibitions on teachers to strike in British Columbia and Germany indicate that teachers do not desist from striking and that the courts are increasingly coming to the aid of teachers who are prohibited from striking. Proposals to minimise the impact of strikes on pupils include public pressure (inter alia by way of public hearings scheduled by the Portfolio Committees on Education) to persuade SADTU to conclude a collective bargaining agreement to limit strikes by teachers. It is proposed that this collective agreement should be to the effect that teachers should neither strike during the four weeks leading up to the exams nor during the period while pupils are writing their exams. It is proposed that Matric teachers should not strike at all. An amendment to section 20(1)(a) of the South African Schools Act 84 of 1996 would give governing bodies of schools the power to negotiate with teachers at a particular school on measures to limit the impact of an impending strike on pupils. Proposed amendments to the LRA include a second round of conciliation by the Director of the CCMA, should it be in a public interest to prevent a strike. This measure could be instrumental in limiting strikes in the education sector.