Requirements Of Procedural Fairness Research Articles

Internal dispute resolution systems: Do high promises come with higher expectations?

AbstractWhen e-commerce appeared in the 1990s it brought with it disputes related to its operation. E-commerce is risky as the contracting parties do not even know each other, not to mention the fact that disputes have additional legal difficulties concerning jurisdiction and applicable law. However, e-commerce websites have worked out online dispute resolution (ODR) systems in order to maintain the trust of their users, employing an efficient and impartial method if problems arise from deals made on their website. These internal ODR systems are considered successful as they are faster, cheaper and more appropriate than asking for remedy from the courts.As online marketplaces resolve tens of millions of disputes a year, their influence cannot be avoided. The traditional court system fails to protect consumer rights in high-volume and low-value international transactions in practice. This circumstance raises the question of whether internal dispute resolution systems of private e-commerce sites could develop in such a way that fulfils the minimum procedural fairness requirements for dispute resolution and that is acceptable according to substantial laws. Is justice served in online disputes? Who is responsible for making just decisions, and to what extent can ODR procedures be expected to meet the principles of traditional civil proceedings?

Defining Fairness in Dismissals of Unauthorised Foreign Nationals

It is trite that if a person's employment is prohibited by law it is not possible for such a person to perform his or her work lawfully. However, people are employed despite failing to comply with statutory requirements. One such class of persons consists of unauthorised foreign nationals. This arises in circumstances where they are employed without work permits or where their work permits expire during employment. The Labour Court in Discovery Health Limited v CCMA 2008 7 BLLR 633 (LC) has affirmed that the absence of a valid work permit does not invalidate the contract of employment, thereby endorsing the fact that unauthorised foreign nationals are regarded as employees. While the Labour Court has confirmed that unauthorised foreign nationals are subject to labour law protection, notably the right not to be unfairly dismissed, it is irrefutable that employers are permitted to dismiss such employees. However, these dismissals must be fair. Unfortunately, there is no clarity on what constitutes a fair dismissal in such circumstances. Although the CCMA relying on the decision of Discovery Health is substantially unanimous in finding that unauthorised foreign nationals have the right to utilise the unfair dismissal machinery sanctioned in the Labour Relations Act 66 of 1995, its decisions are plagued with inconsistency when it comes to determining fairness. Furthermore, no specific guidance has been forthcoming from the Labour Court. Considering the fact that migration to South Africa is rife, resulting in many foreign nationals being employed, this is an important aspect of the law. Therefore, this article explores the substantive and procedural fairness requirements of such dismissals. Having clarity of the legal requirements that apply will aid the fair treatment of foreign nationals who face dismissals due to the absence of valid work permits. This is significant, as South African labour law places a high premium on the fair dismissal of all employees. Apart from being legislated in the LRA, this right is also a constitutional imperative.

Procedural Fairness in the International Tennis Federation’s Disciplinary Regime

This article examines the International Tennis Federation’s disciplinary regime as it applies to on- and off-court indiscipline, in order to assess the extent to which it complies with well-accepted requirements of procedural fairness. In so doing, it draws on two recent appellate decisions of the ITF-appointed Independent Tribunal in the cases of Ilie Năstase and Marcelo Rios, both former elite professional players who were at the time of their respective transgressions appointed to positions within the Romanian Fed Cup and Chilean Davis Cup teams, respectively.

The Unfolding Purpose of Fairness

The duty to observe the requirements of procedural fairness is well settled in Australian administrative law. So too is the variable content of that duty and the possibility that it may be limited or excluded by legislation expressed in suitably clear terms. One key aspect of fairness that is not yet clear is its purpose. Why do courts require those who exercise public or official power to act fairly? The question cannot be fully answered by reliance on legislative intent or reference to the common law because recourse to one or both of these possible sources of the duty to act fairly does not necessarily answer why that duty is drawn from the common law or implied as part of statutory interpretation. This article examines recent steps by courts and commentators that suggest an exploration of the purpose of fairness may be beginning to occur.

TEISĖJŲ ELGESIO ATITIKTIS PROCEDŪRINIO TEISINGUMO REIKALAVIMAMS CIVILINĖSE BYLOSE

Straipsnyje analizuojama teisėjų elgesio atitiktis procedūrinio teisingumo reikalavimams civilinėse bylose ir šios atitikties veiksniai: nagrinėtos bylos pobūdis, miestas, kuriame nagrinėta byla, ginčo šalių atstovų dalyvavimas teismo posėdyje, teisėjo lytis, amžius, darbo stažas, teisminio bylos nagrinėjimo situacijų reglamentavimas procesiniame įstatyme.

The Concept of Managerial Prerogative in South African Labour Law

Managerial prerogative has two components: the power to manage industrial capital and the power to command labour. An employer owns the capital and has the power to decide how to perform or control his or her affairs. An employee works in order to survive. The employer allocates tasks to the employees that must be done adequately. Since 1994, the managerial prerogative has been severely restricted by the legislature to protect both employers and employees. The employer has the right to appoint or recruit employees in the workplace. The Employment Equity Act compiles the designated employer to elaborate employment policy that implements affirmative action to benefit persons in previously disadvantaged groups. The right to dismiss employees has been severely affected. Every dismissal of an employee is subject to substantive and procedural fairness requirements. The commissioners and labour courts usually review the employer’s decision to dismiss employees. If they found the dismissal to be substantively unfair, they can award reinstatement, re-employment or compensation. Employers have the absolute right to organise their affairs and even dismiss employees for operational requirements. When implementing dismissal for operation requirements, the employers have to consult the employees. The employees can strike in order to dissuade the employers from implementing dismissal based on operational requirements. The employer has right to dismiss employees for poor work performance. However, they must be given a reasonable time to improve their performance standard. Collective bargaining has severely diminished the managerial prerogative. There is no duty to bargain. However, the Labour Relations Act creates a framework whereby all parties have to promote collective bargaining. Employees have organisational rights to form or join a trade union and office-bearers are entitled to take reasonable time off to perform their union activities. In the light of the above, the concept of managerial prerogative has been severely affected. DOI: 10.5901/mjss.2014.v5n20p424

Endogenous community formation and collective provision – A procedurally fair mechanism

A group of actors, individuals or firms, can engage in collectively providing projects which may be costly or generating revenues and which may benefit some and harm others. Based on requirements of procedural fairness, we derive a bidding mechanism determining endogenously who participates in collective provision, which projects are implemented, and the positive or negative payments due to the members as well as outsiders. The mechanism allows only for one community with more or less outsiders but not forming multiple communities. We justify procedural fairness but acknowledge that the outsider problem questions some of its desirable properties. Furthermore, we compare procedurally fair with optimal, e.g., welfaristic mechanism design (e.g. Myerson, 1979).

Plain language and assessment of plain language

Plain language is a valuable tool that can be applied in order to proactively promote procedural fairness in the law of contract. It also places a consumer in a better position to protect his own interests. In most legal systems, the use of plain language is compulsory, owing to the focus on transparency and openness and the requirements of procedural fairness. In South Africa, however, no objective guidelines have been published in order to proactively assess whether a document is really written in plain language. In this paper, the South African provisions regarding plain language are critically discussed; the lack of objective guidelines and testing mechanisms is pointed out and suggestions are made with reference to plain language provisions and the testing mechanisms applied in other countries. Some of the methods of testing are discussed and their suitability is pointed out from a South African perspective.

Protection Against Economic Dismissals: Australian Law Compared with Five Other OECD Countries

This research note is based on a study carried out in 2007 for the Victorian Office of the Workplace Rights Advocate, updated to reflect more recent developments including the passage of the Fair Work Act 2009 (Cth). The note analyses how the regulation of economic dismissals under Australian law compares with Germany, Ireland, New Zealand, the United Kingdom and the United States of America. The six countries’ laws are ‘benchmarked’ against the following criteria: coverage of unfair dismissal protection; tests for determining the fairness of economic dismissals; procedural fairness requirements; employee rights to severance payments; and notice, information and consultation obligations of employers. The note finds that under the Coalition Government’s Work Choices legislation, Australia provided employees with weaker protection against economic dismissals than all of the other countries examined, except for the USA. However, the Labor Government’s changes to economic dismissals regulation mean that Australian law now ranks towards the stronger end of the spectrum of protection.

National HIV treatment guidelines in Tanzania and Ethiopia: are they legitimate rationing tools?

Objective:To provide an ethical analysis of whether the Ethiopian and Tanzanian national HIV/AIDS treatment guidelines can be considered legitimate and fair rationing tools.Method:Qualitative study and ethical analysis involving guideline documents...