This section seeks to answer the question1 initially asked in the
first instance by proving or disproving the hypothesis2 proffered by this research
paper at its formative stage. To do this the work of Antony Allott3 is used as a frame work to
guide the analysis. Three elements are applied namely the preventive, curative
and facilitative elements of the law. The section will apply each element in
turn with use of the data acquired.

PREVENTIVE

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It is suggested that effectiveness is measured “by the
degree of compliance; in so far as a law is preventive, i.e., designed to
discourage behavior which is disapproved of, one can see if that behavior is
indeed diminished or absent.”4 This paper has been unable
to secure the data that would have been able to help with the analysis. This
was as a result of departments unwilling to share any information. The CLO
indicated for instance that he has to get permission to share any data needless
to say that permission was not forthcoming. This was not the view held by the
tribunal they simply said that they were not enough resources to compile the
data requested. A request by this paper to date to be included on a mailing
list indicating the schedule for hearings up to the time of submission has also
gone unanswered. In light of the submissions made this paper will rely on
secondary data in the analysis. The paper would not attempt to generalise but what
it has been able to glean from the information presented because that would be
beyond the purview of the Act. However based on the completed cases to date
numbering 4 since inception in 20125 and in light of the number
of cases traversed to the ERT for trial6 it is suggested that the
status quo has not changed namely the asymmetric relation between the employer
and employee. The counterargument could be that external factors such as
economic circumstance could be a factor and admittedly this paper is
appreciative of that analysis. Without any data to break down the segments then
all we are left with is an unsubstantiated hypothesis.  

CURATIVE

There is an additional suggestion that “in so far as a
law is curative, i.e., operating ex post facto to rectify some failing or
injustice or dispute, we can see how far it serves to achieve these ends.”7 To answer this it is
necessary to identify the failing, injustice or dispute that ailed the common
law prior to the Act. In the view of this paper the common law application failed
because a successful application for a wrongful dismissal claim entitled the
applicant too compensation equal to the salary and benefits they would have
received during a full period of notice net any deductions. Prior to 1971 there
was no compensation for time accumulated and the interpretation of the
Severance Payment Act proved cumbersome? The Act has attempted to solve this
problem with a number of awards that seek to acknowledge the components of a
termination, the behavior of the employer and lost to the employee. What is of
some import it the application of reinstatement or reengagement. It has been
observed that this in the opinion of the essay is the great equalizer and any
attempt to cure the disagreeable ill of dismissal is located within the centre
of the solutions. This says to the employer that any action that runs contrary
to law means you were unfair to the employee and as a consequence the employee
ought to be returned to the substantive position. It has been for years and
while in the instant case with Cutie Small v NCC that point was made by counsel
it was ignored by the ERT. It says to this paper that this country some four
years after the enactment of this legislation is not yet ready to embrace the
curative attributes of the solution.

FACILITATIVE

This is by far the most complex aspect to extract from
a law. Alott explains that

“In so far as a law is facilitative,
i.e., providing formal recognition, regulation and protection for an
institution of the law, such as marriage or contracts, presumably the measure
of its effectiveness is the extent to which the facilities are in fact taken up
by those eligible to do so and the extent to which the institution so regulated
is in fact insulated against attack.”8

He went on to illustrate this by identifying the disregard
shown by a third party adulterer to the norms of matrimony. Adultery by virtue
of its existence indicates a partial failure, according to Alott, in the
protective mechanism of the law of marriage. The employment contract is between
the employer and the employee much like the marriage contract between a husband
and wife to the exclusion of all others.9 What has to be under
consideration is the third party to the employment contract. This paper is
suggesting that the employer and the third party is one and the same exhibiting
an alter ego a Jekyll and Hyde construct that seeks to wield the power of
capital to the extent that the asymmetric relationship complained of is
consistently been borne out in the lack of procedure and substance relied upon
by most employers when defending cases at the level of the tribunal.10 The data to date shows
from the concluded cases to date a clear deficiency in the application of the
law and the imposition of the power of the employer to dismiss. If the employer
is able to act through this alter ego to the continued detriment of the
employer in circumstances where this Act is heralded as the great equalizer
then this paper can only suggest that this criterion is also compromised.

1 Is
the ERA an effective piece of labor legislation?

2 There
is dissatisfaction (independent variable) with the effectiveness (dependent
variable) of the ERA.

3
Anthony Allott, The Effectiveness of Laws, 15 Val. U. L. Rev. 229 (1981).
Available at: http://scholar.valpo.edu/vulr/vol15/iss2/1

4 Ibid
71 at 234

5
Ministry of Labour website

6
The paper has unconfirmed reports that they are over three hundred cases
waiting for adjudication and more are being added on a daily basis.

7
Ibid at 71

8
Ibid at 71

9 Hyde
v. Hyde and Woodmansee {L.R.} 1 P. & D. 130

10
See appendix 2

x

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