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Benchmarking Social Justice Allegiance of Dismissal Protections among the EE5 Countries

Document Cited authorities 1 Cited in Related
Vincent
Date01 May 2016
Published date01 May 2016
DOI10.3366/ajicl.2016.0152
Pages242-271
INTRODUCTION

As a consequence of globalisation, international organisations such as the World Trade Organisation (WTO), the International Monetary Fund (IMF), the World Bank, the International Labour Organisation (ILO) and, in particular, the Organisation for Economic Cooperation and Development (OECD), have gone from being lobbying committees to being policy recommenders and pace-setters and, recently, even regulators of foreign trade traffic (Leary and Warner, 2010). Various nations have been affected by and responded to globalisation, in different ways. The president of the ILO said:

Globalisation, like golf, requires a handicapping system that allows new players to catch up. (ILO, 2008)

This statement was aimed at developing countries in general and, more specifically, fragile1 states. It has been reported that fragile countries account for a sixth of the world's population, but for half of the world's infant deaths and a third of all people surviving on less than one US dollar (USD) per day. Further, the domestic and international effects of the bleak and worsening economic situations in these fragile countries include violent conflict, instability, organised crime, migration, human trafficking, deteriorating public health and, ultimately, institutional collapse (OECD, 2007)

However, a limited number of these fragile states have shown significant buoyancy amid the global economic crisis. In particular, Brazil, China, India, Indonesia and South Africa have survived (or did more than just survive) the world economic crisis of 2008/9. It was this phenomenon that stimulated international (economic) curiosity and resulted in a renewed and enhanced interest in such countries as competitive trade partners. International appreciation of the fragile conditions of these countries remains prominent, which is evident in the stance taken by, for example, the OECD (OECD, 2009). Such appreciation necessarily requires adapted economic transnational engagement – in fact, it requires a ‘handicapping’ approach as suggested by the president of the ILO (ILO, 2008).

Akin to the ILO, the OECD took this handicapping-notion further by designating certain developing, (fragile) countries for so-called enhanced engagement strategies relating to international trade activities (OECD, 2009, 2007, and Fragilestates.org, 2011). The OECD clearly understands that, within the context of globalisation, fragile countries should be afforded special attention in order to ensure that they are not left behind.

The OECD has identified five of these fragile countries – Brazil, China, India, Indonesia and South Africa (dubbed the EE5 countries) – which among other considerations show economic potential worthy of enhanced international engagement, bearing in mind such states could successfully overcome fragility-related challenges within the current world economic order. This means that, regarding the EE5 countries, special features will be included in trade and other economic treaties/agreements. These special features were designed to enhance national (domestic) sustainable development,2 economic growth3 and social justice4 (Elliott, 2011; Thompson, 2009; Kaufmann, 2009).

The concepts of sustainable development and economic growth have been widely researched and discussed. For the most part, authorities seem to generally agree on the ideologies, theories and principles of measurement regarding sustainable development and economic growth.5 From the literature review performed in the present study, the same cannot be said about ‘social justice’. Less has been written on the topic, much of which seems contradictory, and no attempt has been made to measure this phenomenon.

International organisations like the United Nations (UN), the International Labour Organisation (ILO), the European Union (EU) and the Organisation for Economic Cooperation and Development (OECD) have resolutely endeavoured to advocate ‘social justice’ as a necessary world policy. Where social justice principles are embedded in almost every aspect of civilised societies, these morals are of particular concern in terms of employment protections.

The present article is particularly concerned with ‘social justice’ in employment protections generally and dismissal protections specifically, and its manifestation in the EE5 jurisdictions and ultimately the measurement/benchmarking of social justice allegiance. Further, this article is premised on the conviction that a generic social justice framework can assist in the identification and design of social justice indicators, which reveal a social justice scorecard capable of measuring and comparing social justice compliance inherent to any particular legal doctrine. Although the present study focuses on one particular legal doctrine, namely dismissal protection, the proposed generic social justice framework may serve as a template for the development of social justice indicators regarding any other doctrine.

The purpose of this article is twofold. Firstly, a generic, conceptual social justice framework is propositioned. Secondly, a selected doctrine, namely employment protections relating to dismissals, is examined in terms of the proposed social justice framework. Subsequently, a customised social justice framework (derived from the generic framework) identifies and employs a number of social justice indicators for dismissal protections. Collectively, these social justice indicators reveal a tangible scorecard capable of measuring and comparing social justice compliance in dismissal protections across divergent jurisdictions. For the purpose of the present article, this scorecard is applied to the respective EE5 jurisdictions revealing comparative knowledge on the level of social justice allegiance among these fragile states insofar as dismissal protections are concerned.

Figure 1 displays the scope of the present research according to three particular research aims.

Research scope.

 A SOCIAL JUSTICE SCORECARD FOR DISMISSAL PROTECTION Defining ‘social justice’

A systematic literature review confirmed that social justice refers to a ‘just society’, and concerns more than the mere administration of justice through laws (Reisch, 2002; National Pro Bono Resources Centre, 2011).

In essence social justice represents justice aimed at ‘the fair distribution of benefits and burdens’ throughout a society (Rawls, 1990). Ferree (1997) and Rawls (1990) noted that we should carefully consider the architecture of our social institutions and social structures (the way we interact with each other, individually and collectively). When these institutions are well organised, a society that is just and efficient is created. Rawls's theory on social justice is aimed at both ‘just procedures’ and ‘just outcomes’, and encases remedial justice,6 economic justice7 and distributive justice.8

International forums such as the ILO, the UN and the OECD have subscribed to similar interpretations of the concept of social justice (Reisch, 2002; National Pro Bono Resources Centre, 2011).

 A generic social justice framework

Following a comprehensive literature analysis, a generic social justice framework was developed, embracing the following significant requirements for the successful construction of a just society:

construction of a just social architecture aimed at the common good which is: the fair distribution of benefits and burdens throughout society;

provision for appropriate remedial justice that promotes equality, equity and inclusion;

establishment of just social structures that enhance participation in decision-making and efficient governance;

development of civil and criminal procedural justice that is simple, effective and accessible and considers natural justice; and

configuration of economic justice that addresses restitution, redress and redistribution throughout society.

 These requirements were organised into five distinct dimensions (or clusters, as the case may be), with the ‘architectural design’ of social institutions as a logical point of origin for the latter four dimensions, revealing a generic social justice framework (see Figure 2)

Generic social justice framework.

 A customised social justice framework for dismissal protections

Using the generic social justice framework, a customised version harmonises well with the pedantic qualities that are universally associated with dismissal protections and disputes about dismissals. Figure 3 represents a customised social justice framework.

Customised social justice framework for dismissal protections.

The point of departure, which is the architectural design, may be translated to a particular interpretive legal framework within which statutory or other law finds application. The first dimension of the framework sets the stage for the further and/or potential creation of just, social institutions (laws, policies and directives). Notably, the constitution of a country provides a legal framework for the interpretation of statutory legislation based on such values expressed in such a constitution. Social justice allegiance through fundamental human rights, including rights aimed at redress and redistribution, is of significant value. Social justice indicators pertaining to the architectural design dimension should therefore elicit social justice notions within supreme law, including through domestic constitutions. Further, the level of compliance with international social justice prescriptions should also be assessed.

The element of remedial justice runs parallel with existing dismissal protections, meaning current statutory law on dismissals. Social justice indicators relating to the remedial justice dimension focus on the scope of protective dismissal law. Social justice is particularly translated through inclusion (everybody should enjoy protection) and equality (everybody should enjoy the same protection). There should also preferably be deterrence...

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