Natural justice for employees : the problem of judicial review in employment relations.
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Date
1995
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Abstract
Work plays a dominant role in modern society. It is through work that the
economic well being of any society is sustained. Workers who perform various
tasks contribute to the well being of society as well as to their betterment as
individuals. Thus paid employment has assumed a prominent role in modern
society. It is an incentive on individuals to contribute to socio-economic
welfare, while their needs and aspirations as individuals are also satisfied. But
for an orderly society to exist, there has to be a subjection of some members
of society by others, a division between those who have the social mandate
(express or tacit) to exercise power for and on behalf of others. Thus work
relations comprise those who exercise managerial power(employers) and those
subject to managerial power (employees). In broader political relations, the
task of social management is performed by the state.
However those exercising managerial functions do not have unfettered
discretion. Power should be exercised within acceptable social limits and be
used to achieve realistic social goals. Thus it has been felt that the laws should
always ensure that the incumbents of governmental power do not exceed the
scope of their power or abuse it. Hence the process of judicial review. This
gives the courts the power to review the decisions of administrative authorities
in order to protect individual citizens who might be adversely affected by bad
administrative decisions. This analogy has been applied in employment
relations in order to protect individual employees against arbitrary dismissal
by employers. It has been held that an employee cannot be dismissed without
a valid reason and in compliance with a fair procedure.
The question asked here is whether this is sufficient to ensure
substantive employment protection. Is judicial review really effective in
employment relations? It is observed that judicial review in labour law has
many limitations as compared to the administrative law context. First, it comes
face to face with the problem of the public/private law distinction, which holds
the employment relationship to be fundamentally a private relationship between
the employer and employee. This complicates the application of public law
remedies in supposedly private relations, where the parties are assumed to
have freedom of contract. The second problem involves the debate as to
whether the state should impose many restrictions on the modern corporation
or there should be minimal state intervention to allow the corporation to
function in accordance with the labour market demands and economic
necessity. It is concluded that the law of unfair dismissal has consequently
been put in a dilemma. While the need has been perceived to curb the
arbitrary use of managerial power by employers, substantive employment
protection can hardly be guaranteed. The problem seems to be that of striking
the balance between the interests of employees, employers and society at
large.
Description
Thesis (LL.M.)-University of Natal, Pietermaritzburg, 1995.
Keywords
Employees--Dismissal of--South Africa., Theses--Law., Judicial review--South Africa., Unfair labour practices--South Africa.