Whatever Happened to the Right to Security of Employment as a Fundamental Right?

The article addresses conceptions of fairness in dismissals for misconduct. It examines the development of a balancing metaphor, where the adjudicator is a dispassionate party, placing into the scales the respective interests of employee and employer, the fairness of a dismissal being determined by the direction in which the scales tip. The article argues that the balancing metaphor does not sufficiently acknowledge the right to work security as a fundamental right, protected by s 23 of the Constitution. It further suggests that a test of proportionality as a basis to test the fairness of a dismissal better resonates with constitutional principles.