The rule of law, fairness and labour law
Authors Johan Froneman
Affiliations: Justice of the Constitutional Court
Source: Industrial Law Journal, Volume 36 Issue 2, 2015, p. 823 – 836
The manner in which courts have dealt with fairness in labour law is not the only obstacle to achieving the goals of the rule of law. This article presents a different perspective on what the rule of law means under the Constitution, particularly in relation to the aims of transformation. An examination of the formal and substantive conceptions of the rule of law, as well as the concepts of economic efficiency and privilege, shows that historically privileged white people must confront the reality of their past privilege and historically disadvantaged black people must acknowledge the responsibility placed on them by the Constitution. Also, it is not impossible to balance a proper understanding of the substantive demands of the rule of law with a realistic and pragmatic understanding of economic efficiency. It concludes that in the workplace we are not yet squarely confronting the hard questions that the demands of constitutional transformation ask of us. Employers and workers need to understand and trust each other’s perspective in order for there to be lasting labour stability and peace. If labour lawyers work towards this, we may be able to establish a reasonable degree of fairness and stability in our labour relations.