Double trouble: Consulting for a fair retrenchment

Author: Prof Rochelle le Roux
Director of the Institute of Development and Labour Law; Professor in the Faculty of Law, University of Cape Town (UCT)

Most employers and employees have a broad understanding that the fairness of a dismissal rests on both a substantive and a procedural leg.

On the one hand, substantive unfairness, in broad strokes, suggests that an employee who should not have been dismissed, had been dismissed.

The legislature had chosen to express substantive fairness with reference to the employee’s misconduct or incapacity and the operational requirements of the employer. A dismissal for the latter reason is often referred to as retrenchment.

On the other hand, procedural unfairness implies that the employee had not been given an opportunity to be heard by the employer before the dismissal was affected. There is at least one practical reason for distinguishing between procedural and substantive fairness: when a dismissal is unfair only because the employer did not follow a fair procedure, the competent remedy is generally only payment of compensation and not reinstatement as would be the case when the dismissal is either substantively, or both substantively and procedurally, unfair.

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The right to happiness in Africa

saul_lealAuthor: Saul Leal
Vice-Chancellor Postdoctoral Fellow, Institute for International and Comparative Law in Africa (ICLA)

Leopold Sedar Senghor said: emotion is African.[1] This emotion has been channeled to constitutions. Happiness is a core value in many African constitutions. It was explicitly mentioned in Liberia, Namibia, Ghana, Nigeria, Swaziland, and Egypt.

Article 1 of the Constitution of Liberia, 1986, proclaims that all free governments are instituted by the people’s authority, for their benefit, and they have the right to alter and reform it when their safety and ‘happiness’ require it.[2] The preamble of the Egyptian Constitution, 2014, cites ‘a place of common happiness for its people’.   The Namibian Constitution, 1990, assures the right ‘to the pursuit of happiness’. In this regard, Frederick Fourie defends the preamble of the Namibian Constitution, explaining that it is coloured by the struggle against colonialism and racism; that it is built around the denial of the ‘right of the individual life, liberty and the pursuit of happiness’ by colonialism, racism and apartheid.[3]

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