Conclusion - Interpreting the Abolition of Dismissal at Pleasure and Avoiding �Contracting Out' Obligations by the State
This chapter has highlighted emerging jurisprudential principles to address employment by the state outside of the public servant context. It argues for more consistent, interventionist approaches by the courts to protect employees of the state who remain vulnerable to the exercise of increasing state power.
The question may be asked, what is the real impact of the abolition of the dismissal at pleasure restrictions, particularly when juxtaposed with the expanded purview of judicial review by the courts in their jurisdiction to curtail arbitrary conduct by the state? The �public element’/�nature of the power’ cases emphasize the priority placed on the burgeoning power of the state and the use of regulatory power in general in ways which impact adversely on the citizen.
The use of a regulatory power which has significant impact on the citizenry is no less destructive when such citizens are employed by the state. If anything, given the concerns expressed by the constitutional arrangements to fit what was then the predominant state employment context, the public service, one can legitimately argue that there is even more justification for courts to intervene where employment is concerned. The historical and constitutional context of the regulation of state power as exercised toward its employees, favours more, and not less review.
The fact that employment by the state outside of the constitutional borders which regulate the public service is fast increasing, is cause for even greater concern. Indeed, if non-public servant state employees are allowed to languish in no-man’s-land, it encourages a situation whereby the state can deliberately �opt out’ of its constitutional obligations by continually decreasing the public service as it enlarges the number and type of positions created by ordinary, private contracts outside of the purview of service commissions. This is similar to the �contracting out’ phenomena emerging in the private sector, through which private sector employers plot to evade their legal obligations,[346] and is no less undesirable.