LEGAL FRAMEWORK SAOU. Gee die pas aan Setting the pace

Transcription

1 What are my Rights?

2 LEGAL FRAMEWORK The Constitution of the Republic of South Africa, 1996 Labour Relations Act, 66 of 1995 The Criminal Procedure Act, 51 of 1977 Protection from Harassment Act, 17 of 2011 Employment Equity Act,55 of 1998 Basic Conditions of Employment Act, 75 of 1997 South African Schools Act, 84 of 1996 Employment of Educators Act, 76 of 1998 South African Council for Educators Act, 31 of 2000

3 The Constitution of the Republic of South Africa, 1996 Section 28(2) the child s best interest are of paramount importance in every matter concerning the child. Section 28 (3) refers to a child as a person under the age of 18 years. Section 36 Limitations of rights Chapter 2 Bill of rights (ss 7 39) Section 23 Labour rights fair labour practices

4 Labour Relations Act, 66 of 1995 In terms of Section 23 of the Constitution of South Africa, everyone has the right to fair labour practices. Schedule 8: Code of Good practice: Dismissal (Educators appointed by SGB) Everyone has the right to strike. The right is defined by Section 64 of the LRA. This right is not absolute and is therefore currently limited by the provisions of section 65 of this Act.

5 The Criminal Procedure Act, 51 of 1977 Officials (police/court etc) should not violate the rights of individuals while exercising their powers. The relevant Constitutional rights are: Human dignity, Freedom and Security of person, Privacy, Property, Arrested, Detained and Accused persons rights in terms of section 35 and limitation of rights in section 36 of the Constitution.

6 GENERAL: You are obliged to provide your name and address to the police You have the right to legal assistance You have the right to remain silent No statement, confession or admission must be done without the assistance of a lawyer or legal representative Only information shared with your attorney/legal representative is privileged. ARREST must be lawful (requirements) DETENTION: Must be brought before a court as soon as possible but no later than 48 hours after the arrest or the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day. BAIL: Sections 58-71

7 Protection from Harassment Act, 17 of 2011 Harm : mental, psychological, physical and economic (wide range of categories) Protection order. Return date, final A child under the age of 18 can get order without the assistance of the child s parents If a person contravenes the order the police may arrest that person. Failure to comply with the final protection order is a criminal offence

8 Employment Equity Act, 55 of 1998 Harassment is a form of discrimination Section 6: Prohibition of unfair discrimination Section 10(6): Remedies Basic Conditions of Employment Act, 75 of 1997 SGB appointments Conditions of employment may not be less favourable than basic conditions of employment. Eg. Four months unpaid maternity leave.

9 South African Council for Educators Code of Professional Ethics

10 South African Schools Act, 84 of 1996 This Act and applicable regulations govern the functioning of public schools. An Educator employed at a public school has the right to insist that: The principal and SGB perform their duties and responsibilities in accordance with the provisions of this Act; Safety measures have been implemented in accordance with the applicable regulations; The behaviour of learners will be in accordance with the school s approved code of conduct and disciplinary policy; Section 8(1) The SGB will act in the best interest of education and the school as an institution Section 9 Suspension Section 10 Prohibition of Corporal punishment Section 10 A Prohibition of initiation practices.

11 Employment of Educators Act, 76 of 1998 Legal provisions related to the direct service delivery and behaviour of the educator in the workplace Educator has the right that the following will be done in accordance with the provisions of this Act or Collective Agreements (PAM): Employment, promotion and transfer Termination A fair procedure in disciplinary action against the educator A fair procedure when the educator lodges a complaint (grievance procedure Chapter G PAM) Administration of the profession in accordance with the PAM

12 Grievance Procedure Definition: A grievance is a complaint by an employee or employees affecting the employment relationship of the person or persons concerned, or where there is an alleged misinterpretation, or violation of his or her rights. OBJECTIVE To resolve the complaint at personal level as quickly as possible and as close to the source of the complaint as possible. Aim is to prevent disputes which must be handled by the ELRC. Gee die pas aan Setting the pace

13 Procedure: If the rights of an educator are violated by actions of a learner, colleagues, the SGB, employer, parents Principal or SGB try to resolve If unresolved: Educator may lodge a grievance according to the Grievance procedure as prescribed in Chapter H of the PAM: Oral interview Formal written grievance at school level Dealing at district office level ELRC Gee die pas aan Setting the pace

14 Employment of Educators Act, 76 of 1998 Misconduct Section 17 and 18: Basis for disciplinary hearings Section 18(1)(r): assaults, or attempts to or threatens to assault, another employee or another person See Newsletter 41 of 2015 Schedule 2: Disciplinary Code and Procedure for Educators GDE Circular 65 of 2007 Management of Employee Discipline by Managers Grievance Procedure: Chapter G PAM

15 Misconduct: Charge Sheet Existence of a rule Did the employee contravene a rule? The employee was aware of the rule or could reasonably be expected to have been aware of the rule/ standard The rule/standard has been consistently applied by the employer Was the sanction appropriate for the contravention of the rule or standard. Section 17: No discretion no mitigation: Dismissal Onus of proof Department Audi alterem partem Balance of probabilities not beyond reasonable doubt. Gee die pas aan Setting the pace

16 Misconduct: Charge Sheet POTHOLES: Political intelligence Religion Idioms Cultural differences Hairstyles Facebook/Twitter Gee die pas aan Setting the pace

17 Assault by learners: Unacceptable Policy schools code of conduct! Consistent Paper trail Cellphone footage. Video, photo s CCTV Criminal case against learner? When? Case number Provocation? Self defence?

18 Alternatives to corporal punishment Suspension: Section 9 Schools Act. Max 7 Days. PROCEDURE! PROCEDURE! SGB may suspend. Only HOD may expel Detention Time-out. Right to education. Only for short period Additional work Withholding of privileges Demerits Community service

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