Mercantile Law
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Browsing Mercantile Law by Advisor "Smit, D. M."
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Item Open Access A comparative labour law perspective on categories of appearance-based prejudice in employment(University of the Free State, 2014-11) Viviers, Damian John; Smit, D. M.English: Appearance discrimination entails discrimination against persons because of an aspect of their appearance, such as their physical attractiveness, height, weight, manner of dress and grooming styles. It also extends to individuals who elect to alter their appearance by undergoing gender reassignment. Appearance-based discrimination is a prevalent concern in workplaces across the globe, with jurisdictions such as the United States of America, Australia, the United Kingdom, Europe, Malaysia, Japan, China and South Africa showing signs of this problem. Employers‘ subconscious appearance preferences seem to filter into their employment decisions, policies and practices, causing employees who do not meet certain appearance standards to suffer discrimination in employment. Employees may also be subjected to bullying, harassment and hostile work environments because of their appearance characteristics. Research indicates that individuals who are physically more attractive as well as taller enjoy preference in the employment realm, while less attractive and shorter individuals are discriminated against and often suffer employment detriment, even when these characteristics are unrelated to the inherent requirements of the job. Employers‘ discretion to impose dress codes and grooming standards (when such criteria are unrelated to the inherent nature of the employment position) in effect curb employees‘ right to freedom of expression via their appearance, as well as their individuality and personal autonomy. Particular considerations in the context of appearance-based discrimination include weight-based discrimination, discrimination against so-called ―trans-employees‖, as well as appearance-related bullying and harassment of employees. Individuals whose body weight deviates from the norm experience significant discrimination in the workplace. Overweight and obese individuals suffer particularly severe employment detriment, as they are assumed to be in ill health, to be lazy and lacking work ethic. Employees who choose to alter their appearance through the process of gender reassignment are equally severely discriminated against in the employment setting. As is the position with the other categories of appearance discrimination, these individuals have little legal recourse that explicitly addresses the nature of the unfair discrimination to which they are subjected. Bullying and harassment of employees because of an aspect of their appearance is another significant concern in employment, with the same limited legal protection currently available to victims. As bullying is not governed or prohibited by law, and the appearance categories fall outside the ambit of the listed grounds of prohibited discrimination, such conduct does not officially amount to harassment either. The global attitude towards appearance discrimination is however beginning to change, and the International Labour Organisation has recognised this problem. Various states in the United States of America and in Australia have started enacting legislation to govern this issue and outlaw appearance discrimination in the employment arena. The judiciaries of these jurisdictions, as well as those in the European Union and South Africa, are also hearing more and more cases in this regard. South Africa still lags behind the rest of the world in dealing with this concern, even though many employees in the country do suffer unfair discrimination, bullying and harassment on the basis of their appearance. Discriminating against employees based on their appearance, without such discrimination being legally justifiable, amounts to unfair discrimination, and violates victims‘ rights to equality and dignity. It also acts as a barrier to equity in the workplace. Harassment and bullying of individuals because of an aspect of their appearance is equally unacceptable, amounting to a dignity violation. Afrikaans: Voorkomsdiskriminasie behels diskriminasie teen persone as gevolg van ‘n aspek van hul voorkoms, onder meer fisiese aantreklikheid, lengte, gewig, klerestyl of persoonlike versorging. Dit geld ook vir individue wat kies om hul voorkoms deur geslagswysiging te verander. Voorkomsdiskriminasie is ‘n algemene probleem in werkplekke oor die hele wêreld, met jurisdiksies soos die Verenigde State van Amerika, Australië, die Verenigde Koninkryk, Europa, Maleisië, Japan, China en Suid-Afrika wat tekens daarvan toon. Werkgewers se voorkomsvoorkeure sypel deur na hul indiensnemingsbesluite, beleide en praktyke, en stel werknemers wat nie aan sekere voorkomsstandaarde voldoen nie, aan diskriminasie bloot. Werknemers word ook dikwels blootgestel aan bullebakkery en teistering op grond van hul voorkoms. Navorsing dui daarop dat individue wat fisies aantrekliker en langer is, voorkeur in die werkplek geniet, terwyl minder aantreklike en korter individue diskriminasie en benadeling in die werksomgewing ervaar, selfs wanneer hierdie eienskappe nie met die kernvereistes van hul werk verband hou nie. Werkgewers se diskresie om dragkodes en versorgingstandaarde neer te lê (waar sulke kriteria nie met die kernvereistes van die werk verband hou nie), beperk inderwaarheid werknemers se reg op vryheid van uitdrukking via hul voorkoms, en lê hul individualiteit en persoonlike outonomie aan bande. Bepaalde oorwegings in verband met voorkomsgegronde diskriminasie sluit in gewigsdiskriminasie, diskriminasie teen sogenaamde ―transwerknemers‖, sowel as voorkomsverwante bullebakkery en teistering van werknemers. Individue wie se liggaamsgewig van die norm afwyk, ervaar beduidende diskriminasie in die werkplek. Oorgewig en vetsugtige individue ondervind veral erge benadeling in die werkplek omdat daar aangeneem word dat hulle siek is, lui is en oor swak werksetiek beskik. Werknemers wat kies om hul voorkoms deur die proses van geslagswysiging te verander, ervaar ewe erge diskriminasie in die werksomgewing. Soos met die ander kategorieë van voorkomsdiskriminasie, het hierdie individue weinig remedies tot hul beskikking wat die onbillike diskriminasie spesifiek hanteer. Afknouery en teistering van werknemers as gevolg van ‘n aspek van hul voorkoms is nóg ‘n beduidende bron van kommer in die werksomgewing, met ewe min wetlike beskerming tot slagoffers se beskikking. Aangesien bullebakkery en teistering nie volgens wet gereguleer of verbied word nie, en die voorkomskategorieë buite die bestek van die gelyste gronde van verbode diskriminasie val, is sulke optrede ook nie (wetlik beskou) teistering nie. Die wêreldwye houding teenoor voorkomsdiskriminasie is egter besig om te verander, en die Internasionale Arbeidsorganisasie het reeds die probleem erken. Verskeie state in die Verenigde State van Amerika en in Australië het begin om wetgewing uit te vaardig om hierdie probleem in die werksomgewing te reguleer en te verbied. Die howe van dié jurisdiksies, sowel as dié in die Europese Unie en Suid- Afrika, hoor ook al hoe meer geskille op hierdie gebied aan. Suid-Afrika is egter steeds agter die res van die wêreld in die hantering van hierdie kwessie, al gaan heelwat werknemers in die land gebuk onder onbillike diskriminasie, teistering en bullebakkery op grond van hul voorkoms. Diskriminasie teen werknemers op grond van hul voorkoms, sonder dat dit wetlik geregverdig kan word, kom neer op onbillike diskriminasie, en skend die slagoffers se reg op gelykheid en waardigheid. Sulke diskriminasie dien ook as ‘n hindernis vir gelykheid in die werkplek. Teistering en afknouery van individue as gevolg van ‘n aspek van hul voorkoms is ewe onaanvaarbaar, en kom op ‘n skending van menswaardigheid neer.Item Open Access Decent work for on-demand workers in the modern-day gig economy(University of the Free State, 2023) Stopforth, Grey; Smit, D. M.Radical technological development during the past two centuries has led to various enabling technologies changing the world of work on a global scale and, unfortunately, not always for the better. With one of the highest unemployment rates in the world, South Africa's reliance on informal forms of work is increasing, raising the question of how to ensure decent work in the modern world of work. This becomes even more troubling, seeing that millions of unemployed people are trying to enter the labour market. This is especially true for unemployed youth in South Africa, who are suited for these new forms of work due to technological advancements, the rise of complexities associated with the gig economy, and the skills required by jobs. Although the benefits of embracing the technological changes in the workplace are apparent, some technologies continue to disrupt the traditional employment model to the extent that many are excluded from labour and social protections. One of the emerging sectors brought about by the technological changes, especially the use of mobile applications, is the gig economy. The gig economy is an economy that involves the exchange of labour for payment between companies or individuals via a digital platform. The concept 'gig economy' is used interchangeably with other types of economies that are linked to platform work. This includes economies such as the digital economy, collaborative economy, sharing economy, platform economy, and on-demand economy. The gig economic model leans more towards emerging economic activities coupled with the platform economy, which is divided into two forms of platform work, crowdwork and on-demand work. In addition, platform work is characterised by irregular work arrangements, additional costs on workers providing the service, work that is paid for tasks completed, and accessibility of work facilitated by various platforms. Research suggests that non-standard forms of work continue to feature in the gig economy, and that classification of platform workers as independent contractors remains a major concern. International perspectives and research conducted on on-demand work in foreign jurisdictions is instrumental to finding best practices for advocating decent on-demand work. Although the ILO has yet to reach an agreement on a universal approach to regulating on-demand work, it has taken progressive steps to achieve decent work for, and extend basic labour and social protection to, those working in the gig economy. However, a solution for the universal regulation of the modern-day gig economy and on-demand work remains elusive. In the absence of such, it is found that on-demand workers are rendered vulnerable in respect of basic conditions of employment, having little to no control over unilateral changes to the contractual terms that regulate their relationship. On-demand workers also lack protection at the level of both individual and collective labour rights; therefore, they experience unfair deactivation, discrimination by both clients and the platform, and poor collective bargaining power. Taking this into account, the question needs to be asked if South Africa sufficiently advocates for decent on-demand work. The rights of on-demand workers warrant urgent regulatory intervention that could take the form of proactive steps from a platform company in the form of policy considerations from the platform company. A workable solution to the decent work deficit in the on-demand sector can therefore be proposed by either the legislator by way of legal reform, or by the platform company by means of policy measures and/or revised terms and conditions. 𝘊𝘰𝘯𝘵... 𝗥𝗘𝗙𝗘𝗥 𝗧𝗢 𝗧𝗛𝗘 𝗔𝗧𝗧𝗔𝗖𝗛𝗘𝗗 𝗗𝗢𝗖𝗨𝗠𝗘𝗡𝗧 𝗙𝗢𝗥 𝗔 𝗙𝗨𝗟𝗟 𝗦𝗨𝗠𝗠𝗔𝗥𝗬! ___________________________________________________________________Item Open Access Mental health and the world of work: a comparative analysis of the legal frameworks governing categories of mental health conditions(University of the Free State, 2016-07) Viviers, Damian John; Smit, D. M.; Pretorius, J. L.English: Mental health conditions such as depression are common in the world of work. Despite having been a significant concern for centuries already, these conditions are becoming particularly prevalent in modern society and workplaces across the globe. Although they affect the legal realm in many different areas, mental health conditions are often misunderstood and inappropriately dealt with from a legal perspective. Inevitably, this will give rise to concerns in the employment environment. Depression appears to be the most prevalent of all the categories of mental health conditions, with the most noteworthy impact on employment. Its symptoms are debilitating and impair sufferers’ ability to fulfil the inherent requirements of their jobs. In addition, the medication used to treat and manage mental health conditions, such as antidepressants, also leads to various debilitating side effects, which may further affect the person’s ability to function efficiently at work. The United Nations (UN) Disability Convention has set the international benchmark for all jurisdictions in addressing mental disabilities, discrimination based on mental health as well as reasonable accommodation for these conditions. The convention displays support for the social model of disability and a substantive approach to equality. The International Labour Organisation (ILO) has in turn also played a significant role in offering guidance for domestic legal frameworks to address mental health concerns in the workplace. Against the backdrop of international instruments such as those of the UN and the ILO, this study takes an in-depth look at the approach to mental health conditions in employment in the jurisdictions of South Africa, the United States (USA) and the United Kingdom (UK). More specifically, the research analyses the various jurisdictions’ take on mental health conditions as disabilities under the law, the disputability of workplace discrimination based on mental health, and the procedures and measures to provide reasonable accommodation for employees with mental health conditions. Across the jurisdictions, depression in particular and mental health conditions in general may amount to legally recognisable disabilities if they can satisfy the elements of the specific disability definition used. In South Africa, the USA and the UK, these definitions and elements differ. These three jurisdictions’ legal frameworks do however acknowledge that in order for a mental health condition to attract disability status, the condition must be recognisable and must have a particular impact on the life or employment potential of the employee or job applicant within a particular timeline. Although the Constitution of the Republic of South Africa, 1996, requires a substantive approach to equality and, thus, the consideration that mental health conditions such as depression may amount to legally recognisable disabilities, South African disability law has been slow to give effect to this, lagging slightly behind the USA and UK in this regard. Consequently, the South African legal position on mental disabilities is underdeveloped and ambiguous. Due to the significant stigma and prejudice associated with mental health conditions, they often form the basis for discrimination in both society and the workplace. Discrimination based on a person’s mental health status impairs the individual’s right to dignity, equality and non-discrimination, and may potentially even aggravate existing mental health conditions. In the USA, UK and South Africa, discrimination based on mental health may be challenged on the protected ground of disability, provided that the condition in question satisfies the legal requirements to constitute a mental disability. The UN Disability Convention along with disability-specific legislation in the USA and UK extensively governs this consideration. South Africa, on the other hand, does not have any legislation giving effect to the UN Disability Convention. Yet, the Constitution and the Employment Equity Act do enable victims to challenge discrimination based on mental health on either the protected ground of disability, or as an unlisted analogous or arbitrary ground of unfair discrimination. The latter does appear more viable in light of the disadvantage suffered by these persons because of their conditions. Under the South African legal framework, reasonable accommodation for mental health conditions is based on two primary foundations: Firstly, reasonable accommodation is available to people with mental disabilities as an affirmative action measure; secondly, reasonable accommodation may possibly also be available to persons with mental health conditions in general, since it essentially constitutes a nondiscrimination principle. Reasonable accommodation in the comparative jurisdictions of the USA and the UK, on the other hand, flows primarily from their respective disability-specific legislation. To provide effective reasonable accommodation on the basis of mental health, several factors need to be considered in an interactive process between employer and employee. These include occupational health and safety, the intersection between reasonable accommodation and incapacity, the disproportionate-burden threshold, and the various forms of reasonable accommodation that may best suit the mental health condition in question, given its specific symptoms and diagnostic features. This study emphasises the importance of adequate and effective consideration of mental health conditions under the legal frameworks of jurisdictions worldwide due to the global prevalence of these conditions, their devastating effects, and the disadvantage experienced by those who suffer from these conditions. Based on the comparison with the USA and the UK, it is concluded that the South African legal framework in relation to mental health conditions needs to be urgently developed in order to promote clarity and certainty regarding the official legal position on these conditions, as well as to safeguard the rights and interests of employees with mental health conditions in the workplace. As an added, more practical contribution, the study concludes with a proposed draft code of good practice on the handling of mental health conditions in the workplace, a draft set of interpretative guidelines for the South African judiciary, Department of Labour, employers and employees in dealing with these conditions in the world of work, as well as a draft workplace policy on mental health conditions for potential adoption by employers.