A critical analysis of the remedy of reinstatement awarded by the courts in employment law
Date
2013-03-25
Authors
Tembo, Angelica K.
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Abstract
This paper critically analyses the remedy of reinstatement awarded by the courts in employment law.The main principles that the paper has analysed include inter alia reinstatement, special circumstances and discrimination in employment. This research is based on the crucial factor that the
award of the remedy of reinstatement is an essential corollary of special circumstances. The method of the research is a qualitative interpretation of statutory provisions on reinstatement and case law. In
approaching the subject matter the paper examines what exactly amounts to special circumstances to warrant an award of the remedy of reinstatement in the context of the Employment Law in Zambia.The paper further examines the appropriateness of the remedy of reinstatement in a legal
environment such as Zambia's where the known vagaries of litigation are such that disposal of cases takes very long, heightened by the costs of trial and the adversarial relationship between the
employer and the employee. Regard is therefore had to the various provisions of the law that address the remedy and audiences with key informants. A number of other documents and policy analyses of
the field are used as a secondary research material.The paper demonstrates through an evaluation of case law that even though statute has expressly provided for the remedy of reinstatement, it does not however address what special circumstances
warrant the remedy of reinstatement. Further the instances of discrimination under statute are very limited. The paper also establishes that there exists a general lack of adherence to earlier set principles of the Supreme Court by the lower courts. This has resulted in inconsistencies in
interpretation of what amounts to special circumstances to warrant the remedy of reinstatement. The underlying findings further show that there has been an overall shift in the employee/employer relationship owing to the changes in the social economic structure resulting in fewer claims of
reinstatement. The study recommendations that parliament effects amendments to the regulatory framework by enactment of regulations that give indicators as and when to administer the remedy of reinstatement
without taking away the discretionary power of the judges. The Judiciary Should reaffirm the importance of providing consistency in the law through adherence to set principles. Further the instances of discrimination under statutory provision of the regulatory framework should be broadened. Lastly the recommendations also suggest an urgent technological upgrade of the system
at the Judiciary in order that case law and information is availed to all interested parties.
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Keywords
Employment law , Remedy of Reistatement