Academic journal article The International Sports Law Journal

Labour Law in South African Sport: A Season of Expectations?

Academic journal article The International Sports Law Journal

Labour Law in South African Sport: A Season of Expectations?

Article excerpt

1. Introduction: the constitutional context

The dawn of a new Constitutional era (1) in South Africa during the 1990s did not only pave the way for the introduction of an advanced democracy, but also guaranteed the entrenchment of fundamental human rights. (2) The Constitution does not only concern itself with the exercise of public power, but in certain circumstances, where a particular fundamental right is capable of application to private relationships, the Constitution also applies to such relationships. (3) However, once a court is satisfied that a fundamental right applies to a private person, that person normally cannot rely directly on the Constitution for protection. If there is legislation giving effect to the fundamental right, that legislation must be applied; if there is no such legislation, the court must consider whether the common law gives effect to the right. (4) If so, the common law must be applied. In the absence of a common law rule giving effect to the right, the court must develop the common law to give effect to that right. A private person, claiming that one of his or her fundamental rights has been infringed, can thus typically only rely directly on the Constitution for protection if it is claimed that the legislation intended to give effect to that fundamental right in question, is itself contrary to the Constitution. (5) Section 23 of the Constitution deals with labour rights and guarantees the right to fair labour practices, the right join a trade union and the right to engage in collective bargaining, in addition to other rights. The principal legislation giving effect to these labour rights is the Labour Relations Act 1995 (LRA) that came into operation on 11 November 1996. (6) The distinguishing features of this legislation include the emphasis on the concept of unfairness, the introduction of a specialised labour dispute resolution structure and the high premise that is placed on collective bargaining. This article provides a general overview of unfair dismissals in South Africa and more particularly considers the application of one of the more complicated elements (section 186(1)(b)) of the definition of dismissal to sportspersons. In the latter regard particular emphasis will be placed on a recent arbitration award (SARPA obo Bands and Others/SA Rugby (Pty) Ltd) (7) concerning the alleged unfair dismissal of three international rugby players.

2. The South African labour dispute resolution structure

The LRA established new structures for the resolution of disputes in the workplace. These include the Commission for Conciliation, Mediation and Arbitration (CCMA), the Labour Court and the Labour Appeal Court. (8) Generally, all disputes are referred to the CCMA for conciliation. Depending on the nature of the dispute, an unsuccessful conciliation will either be followed by arbitration, also conducted by the CCMA, or adjudication by the Labour Court. In certain limited instances, an arbitration award can be taken on review to the Labour Court. (9) Labour Court judgments may be taken on appeal to the Labour Appeal Court. (10) The LRA also provides for the establishment bargaining councils in respect of particular sectors and areas, comprising registered trade unions and employer associations. (11) Parties falling within the jurisdiction of a bargaining council are required to refer disputes to the council for conciliation and arbitration when so permitted by the LRA. (12) Despite providing a statutory structure, the LRA encourages parties to resolve disputes through private resolution structures, where such structures have been agreed to. If a dispute has been referred to the CCMA, despite a privately agreed dispute resolution structure, section 147(6) of the LRA confers discretion on the CCMA commissioner either to proceed with the matter or to refer it for resolution through the private dispute resolution structure. The CCMA was faced with such a situation in Augustine and Ajax Football Club: (13) Augustine, a professional football player, referred a dispute to the CCMA alleging that he had been unfairly dismissed by Ajax Football Club. …

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