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An examination of the awards and redefining in law may be appropriate.  Generally, punitive, exemplary or aggravated
damages are awarded in order to deter the respondent and similar persons from
pursuing a course of action similar to that which damaged the claimant.1
This paper is suggesting that section (1)(c) and 37(4) are of such a kind.
Special damages compensate the claimant for the quantifiable monetary losses
suffered in the form of lost earnings (both historically and in the future)
inter alia.2
This paper is also suggesting section (1)(a)(b) and section 22 are of such a
kind.

On the face of it the ERA seems to be a superior piece of legislation
being able to address aspects of the termination that may be seen to most as
repugnant. That said are the awards sufficient in the circumstance. It is the
view of the paper that there has been improvement but the extent to which that
improvement has been made has to be measured against the reality on the ground.
The amount of applications being made to the ERT indicates that employers are
not concerned with the penalties. Notice is an example of whether enough has
been done by way of award. It is the view of this essay that section 223 is woefully inadequate in contrast
to the common law where settlements as much as six months are possible.4 The position of the paper
is again simple. If it is the intent that the Act to right the wrongs of past
injustices then it should at a minimum match the common law in attempts to
regulate the actions of the players. It is suggested that this section be
amended to bring it in line with the common law solution. It is the opinion of
this paper that only after penalties are at a substantive level that applications
to the ERT will be slowed indicating that employers are internalizing the
outcome of their actions.5 The basic award matches and
surpasses the schedule of the severance payments act which makes this section
progressive in its recognition of the years served but unfortunately does not
consider the time remaining for the employee.6 The attempt by the Act to
curtail benefits accruing to the employee suggests unwillingness on the part of
legislators to balance an asymmetric relationship contrary to the establishment
of the Act. This papers suggestion is that as long as the penalties are below
par the rate of unfair dismissals will continue unabated. This paper suggests
that section 2 (d) be amended to reflect contributions by the employee for
years beyond 20 up to 30 years minimum and 4 weeks for each year served.  

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ADMINISTRATION

The engagement of the CLO aligned to how ACAS is able to handle cases
in the initial stages might be desirous in an effort to reduce the demands made
on the ERT. At present the CLO is unable to compel the parties to come together
in an effort to mediate the issue. What the Act has at present is a CLO that
could be ignored to the extent that he is unable to investigate preliminary
matters that could be material to even a criminal act. In an effort to make the
process more efficient the CLO has to be given the power to mandate that
parties get together at the initial stage. While this may not be the final
further penalties ought to be levied on either party if subsequent appeals
prove the CLO correct.

1 Rookes
v Barnard 1964 UKHL 1

2 Morris,
Clarence (March 1959). “Liability for Pain and Suffering”. Columbia
Law Review. 59 (3).

3
The maximum payable under this section

4 Rouse
v Mendoza (1967) 12 WIR 1, where the courts also imputed a reasonable notice of
six months where a veteran employee of 24 years was wrongfully summarily
dismissed.

5

6
Section 2 (d) of the FOURTH SCHEDULE provides that where the period is twenty
years or more but less than 33 years 31/2 weeks wages for each year of that
period.

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