n Acta Juridica - Dismissal for misconduct - ghosts of justice past, present and future
|Article Title||Dismissal for misconduct - ghosts of justice past, present and future|
|© Publisher:||Juta Law Publishing|
|Affiliations||1 University of the Witwatersrand and 2 University of Johannesburg|
|Publication Date||Jan 2012|
|Pages||102 - 119|
The Labour Relations Act 66 of 1995 fails to articulate a normative foundation from which the right not to be unfairly deprived of work security might be derived. While the courts have established that the determination of a fair sanction for workplace misconduct necessarily entails a value judgment, they have failed to recognise that principled decision-making requires a coherent conception of justice. I review the various conceptions of fairness that have served to underpin the South African law of unfair dismissal since its inception. To the extent that a balancing metaphor of employer versus employee interests is currently employed to determine the fairness of the sanction of dismissal, I suggest that this model is flawed. A conception of justice more closely aligned with constitutional values of dignity and autonomy requires that the sanction of dismissal is a rational response to employer goals of economic efficiency, and that a relationship of reasonable proportionality exists between the sanction and those goals.
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