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Judgment No. CCZ 2/18
Constitutional Application No. CCZ 86/15
interest, nor did it depend upon any particular property for the operation of the statutory
mechanism. The Government took nothing for its own use. It imposed an obligation on employers
which was within its legislative powers to impose. The money was to be paid to employees whose
contracts were terminated on notice.
The retrospective application of s 12C(2) of the Act placed the responsibility of bearing
the burden of loss of employment by the employee whose contract was terminated on notice fairly
on those who would have caused the loss. It is not a burden that should in fairness and justice have
been borne by the public as a whole. The employers who terminated employees’ contracts on
notice would have benefitted from the fruits of their labour.
The financial obligation imposed on the employers is owed to the employees whose
contracts were terminated on notice. No specific amount of money is represented by the obligation.
The law provides a formula which the parties must use to arrive at the specific amount of money
to be paid.
An employer who terminated an employee’s contract on notice is placed under an
obligation retrospectively to assess the value of the entitlement of the employee to compensation
for loss of employment based on length of service. The payment to the employee by the employer
is made after calculation of what is due and payable as damages for loss of employment at the
initiative of the employer. The money the employer would have had to pay to the employee whose
contract of employment was terminated on notice is a measure of the damages for loss of
employment caused by the employer.
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