Chapter 1 Introduction and overview of the study
1.2 Introductory background
1.2.3 Legal framework
The next section will discuss the legal framework related to the study. The Constitution of the Republic of South Africa and employment legislation will be discussed under the legal framework.
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1.2.3.1 Constitution of the Republic of South Africa
The Constitution (Act 108 of 1996) is the highest law of South Africa. As such, it is important for human resource managers and practitioners to understand the effect of the Constitution on labour relations.
In terms of the Constitution, the Republic of South Africa is one, sovereign, democratic state founded on the following values:
(i) Human dignity, achievement of equality and advancement of human rights and freedoms.
(ii) Non-racialism and non-sexism.
(iii) Supremacy of the Constitution and the rule of law.
The Constitution is the supreme law of the Republic. Law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled. The Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in the country and affirms the democratic values of human dignity, equality and freedom. The state must respect, protect, promote and fulfil the rights spelt out in the Bill of Rights.
The Bill of Rights, in Chapter 2 of the Constitution, also includes specific rights which are related to labour relations such as the right to equality in Section 9, which states that:
(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms.
To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
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(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair (Constitution of the Republic of South Africa, 1996:7).
The Constitution (1996:7) also upholds everyone's inherent dignity and the right to have their dignity respected and protected.
1.2.3.2 Employment legislation
According to the Labour Relations Act (No. 66 of 1995), the purpose of employment legislation is to advance economic development, social justice, labour peace and democratisation of the workplace. Employment Legislation gives staff a number of statutory rights and protection. The employment legislation discussed in the sections that follow explain in detail the context of these Acts for the study.
The Labour Relations Act (No. 66 of 1995)
The LRA, which came into effect on 11 November 1996, regulates South Africa's statutory labour relations system. Gerber, Nel and Van Dyk (1998:157) state that
"this Act seeks to balance the demands of international competitiveness and the protection of the fundamental rights of workers, so as to give effect to the stated goals and principles of the Reconstruction and Development Programme of the Government of National Unity”. These goals and principles include: achievement of high productivity, improved efficiency, social justice, the inclusion of all sectors under the new Act and the establishment of collective bargaining at national, industrial and workplace levels.
Gerber, Nel and Van Dyk (1998:157) indicate that the LRA sought to address the following unfair labour practices between employers and employees:
(a) unfair conduct on the part of the employer relating to the promotion, demotion or training of an employee or relating to the provision of benefits to an employee
(b) unfair suspension of an employee or any other disciplinary action short of dismissal in respect of an employee
(c) failure or refusal of an employer to reinstate or re-employ a former employee in terms of an agreement.
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According to Du Toit, Woolfrey, Murphy, Godfrey, Bosch and Christie (1998:3):
The Labour Relations Act 66 of 1995 marked a major change in South Africa's statutory industrial relations system. Following the transition to political democracy, the Act encapsulated the new government's aims to reconstruct and democratise the economy and society in the labour relations arena. It, therefore, introduced new institutions with the intention of giving employers and workers an opportunity to break with the intense adversarialism that characterised their relations in the past. These institutions aim to promote more orderly collective bargaining and greater co-operation at workplace and industry levels, and to provide a proactive and expeditious dispute resolution systems.
Basic Conditions of Employment Act (No. 75 of 1997)
This Act was tabled in Parliament on October 1997 and came into effect on 1 December 1998. Its overall purpose is to advance economic development and social justice. The objective of the Act is to ensure that working conditions of unorganised and vulnerable workers meet minimum standards that are socially acceptable in relation to the level of development of the country. Another objective of this Act is to remove rigidities and inefficiencies from the regulation of minimum conditions of employment and to promote flexibility.
The Basic Conditions of Employment Act is aimed at addressing the following:
inadequate protection of vulnerable workers, such as farm, domestic and part- time workers
poverty in employment
child labour
excessive working hours, particularly in sectors such as security and transport
gender discrimination, particularly in relation to maternity leave (Swanepoel, Erasmus, Van Wyk & Schenk, 2000:137).
Swanepoel et al. (2000:137) state that it was hoped the Act would make it sufficiently flexible for basic conditions of employment to vary, while creating appropriate safeguards to avoid extremes of exploitation.
7 Employment Equity Act (No. 55 of 1998)
South Africa has a legacy of discrimination in relation to race, gender and disability that has denied most South Africans access to opportunities for education, employment, promotion and wealth creation. The objective of this Act is to ensure that the workplace is free from discrimination and employers take active steps to promote employment equity. Another objective of the Act is to achieve equity in the workplace.
Gerber et al. (1998:156) state that employment equity centres on the eradication of unfair discrimination of any kind in hiring, promoting, training, pay benefits and retrenchment in line with constitutional requirements.
The Employment Equity Act strives to achieve equity in the workplace by prohibiting unfair discrimination (Nel, Dyk, Haasbroek, Schultz, Sono & Werner, 2004:172).
Having briefly explored relevant legislation relating to employment, the next section discusses different forms of harassment.