oa Comparative and International Law Journal of Southern Africa - The changing contours of labour law



In South Africa, the 'unfair labour practice' concept and the 'status quo' provisions of the Labour Relations Act have emasculated the judicial doctrine of freedom of contract in employment contracts. Substantive and procedural rules enhancing job security are preferred by the industrial court, to those of the socially inadequate dictates of contract law regulating dismissals. By way of 'status quo' orders the court is able to veto dismissal decisions, if challenged by the employee, until the reasons put forward by the employer are upheld in conciliation proceedings, and in the case of unilateral action detrimental to industrial relations, until adjudicated in the court itself. Where the interim relief is authorised, a lawful common law dismissal is declared invalid and the employment relationship continues. In this way the common law rule denying specific performance of an employment contract, thereby enshrining the absolute power of the employer to hire and fire at will, has been addressed.


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