This section seeks to answer the question1 initially asked in thefirst instance by proving or disproving the hypothesis2 proffered by this researchpaper at its formative stage.

To do this the work of Antony Allott3 is used as a frame work toguide the analysis. Three elements are applied namely the preventive, curativeand facilitative elements of the law. The section will apply each element inturn with use of the data acquired.PREVENTIVEIt is suggested that effectiveness is measured “by thedegree of compliance; in so far as a law is preventive, i.e.

, designed todiscourage behavior which is disapproved of, one can see if that behavior isindeed diminished or absent.”4 This paper has been unableto secure the data that would have been able to help with the analysis. Thiswas as a result of departments unwilling to share any information.

The CLOindicated for instance that he has to get permission to share any data needlessto say that permission was not forthcoming. This was not the view held by thetribunal they simply said that they were not enough resources to compile thedata requested. A request by this paper to date to be included on a mailinglist indicating the schedule for hearings up to the time of submission has alsogone unanswered. In light of the submissions made this paper will rely onsecondary data in the analysis. The paper would not attempt to generalise but whatit has been able to glean from the information presented because that would bebeyond the purview of the Act. However based on the completed cases to datenumbering 4 since inception in 20125 and in light of the numberof cases traversed to the ERT for trial6 it is suggested that thestatus quo has not changed namely the asymmetric relation between the employerand employee.

The counterargument could be that external factors such aseconomic circumstance could be a factor and admittedly this paper isappreciative of that analysis. Without any data to break down the segments thenall we are left with is an unsubstantiated hypothesis. ┬áCURATIVEThere is an additional suggestion that “in so far as alaw is curative, i.e., operating ex post facto to rectify some failing orinjustice or dispute, we can see how far it serves to achieve these ends.

“7 To answer this it isnecessary to identify the failing, injustice or dispute that ailed the commonlaw prior to the Act. In the view of this paper the common law application failedbecause a successful application for a wrongful dismissal claim entitled theapplicant too compensation equal to the salary and benefits they would havereceived during a full period of notice net any deductions. Prior to 1971 therewas no compensation for time accumulated and the interpretation of theSeverance Payment Act proved cumbersome? The Act has attempted to solve thisproblem with a number of awards that seek to acknowledge the components of atermination, the behavior of the employer and lost to the employee. What is ofsome import it the application of reinstatement or reengagement. It has beenobserved that this in the opinion of the essay is the great equalizer and anyattempt to cure the disagreeable ill of dismissal is located within the centreof the solutions. This says to the employer that any action that runs contraryto law means you were unfair to the employee and as a consequence the employeeought to be returned to the substantive position. It has been for years andwhile in the instant case with Cutie Small v NCC that point was made by counselit was ignored by the ERT. It says to this paper that this country some fouryears after the enactment of this legislation is not yet ready to embrace thecurative attributes of the solution.

FACILITATIVEThis is by far the most complex aspect to extract froma law. Alott explains that “In so far as a law is facilitative,i.e.

, providing formal recognition, regulation and protection for aninstitution of the law, such as marriage or contracts, presumably the measureof its effectiveness is the extent to which the facilities are in fact taken upby those eligible to do so and the extent to which the institution so regulatedis in fact insulated against attack.”8He went on to illustrate this by identifying the disregardshown by a third party adulterer to the norms of matrimony. Adultery by virtueof its existence indicates a partial failure, according to Alott, in theprotective mechanism of the law of marriage.

The employment contract is betweenthe employer and the employee much like the marriage contract between a husbandand wife to the exclusion of all others.9 What has to be underconsideration is the third party to the employment contract. This paper issuggesting that the employer and the third party is one and the same exhibitingan alter ego a Jekyll and Hyde construct that seeks to wield the power ofcapital to the extent that the asymmetric relationship complained of isconsistently been borne out in the lack of procedure and substance relied uponby most employers when defending cases at the level of the tribunal.10 The data to date showsfrom the concluded cases to date a clear deficiency in the application of thelaw and the imposition of the power of the employer to dismiss. If the employeris able to act through this alter ego to the continued detriment of theemployer in circumstances where this Act is heralded as the great equalizerthen this paper can only suggest that this criterion is also compromised.1 Isthe ERA an effective piece of labor legislation?2 Thereis dissatisfaction (independent variable) with the effectiveness (dependentvariable) of the ERA.3Anthony Allott, The Effectiveness of Laws, 15 Val.

U. L. Rev. 229 (1981).Available at: http://scholar. Ibid71 at 2345Ministry of Labour website6The paper has unconfirmed reports that they are over three hundred caseswaiting for adjudication and more are being added on a daily basis.7Ibid at 718Ibid at 719 Hydev. Hyde and Woodmansee {L.

R.} 1 P. & D.

13010See appendix 2


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