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Judgment No. CCZ 2/18
Constitutional Application No. CCZ 86/15
it has no application to other persons, for the class for whom the law has been made is different
from other persons. By promulgating the transitional provision, all that the Legislature did was to
adjust the distribution of the benefits and the burdens of termination of employment on notice.
The retrospective application of the law changed the past legal consequences of the conduct
of terminating a contract of employment on notice without changing the past conduct itself. The
financial obligation was retrospectively imposed on the employers who terminated their
employees’ contracts on notice solely for the purpose of providing a means for the achievement of
the legitimate purpose of protecting employees whose contracts were terminated on notice from
the economic hardships of loss of employment caused by the employers. Retrospective entitlement
to the minimum retrenchment package was a right exclusively designed for the protection of
employees whose contracts were terminated on notice on or after 17 July 2015.
The retrospective application of s 12C(2) of the Act was concerned with the detrimental
consequences of the exercise of the right to terminate contracts of employment on notice by the
employers. The less comparable the situations are, the more inequality is justified and allowed. It
is for the Legislature not the Court to decide who is comparable and in what regard. The employers
would naturally not suffer the damage of loss of employment. They would not need compensation
for loss of employment for the simple reason that they are not employees.
The subject matter of the legislation required that employers and employees be treated
differently. The retrospective distinction between employers and employees in the circumstances
was relevant. The imposition of burdens on some and benefits on others is an integral aspect of the
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