Dismissals for operational requirements

Abstract

Dismissals for operational requirements are permitted by the Labour Relations Act. However, such dismissals must still pass the test for substantive and procedural fairness. Of great interest to labour are cases dealing with whether an employer who unilaterally changes terms and conditions of employment may dismiss the affected employee for operational requirements should that employee refuse to accept the new terms and conditions. Also of significance in the area of dismissals for operational requirements are the 2002 amendments to the LRA allowing labour to either strike or refer a matter to the Labour Court in the face of proposed retrenchments. Section 189A of the LRA allows employees to approach the Labour Court for an appropriate order should an employer insist that it will retrench before exhausting the procedures that are set out in the LRA. However, the case law has cast doubt on the effectiveness of the remedy of approaching the court for such an order. Another important issue in the context of dismissals for operational requirements is that an employee’s right not to be dismissed for taking part in protected strike action has, from a labour point of view, also been dealt a huge blow. This is due to the case law which permits an employer to dismiss a striking employee for reasons based on the employer’s operational requirements. The LRA recognises that an employer may dismiss employees if the operational requirements of its business make such a dismissal unavoidable. However, the courts will uphold a dismissal as fair only where such dismissal was both substantively and procedurally fair. Failure by an employer to show that a dismissal was fair in that it was necessitated by operational requirements will result in such dismissal being substantively unfair. The LRA also sets out the procedure an employer needs to follow to ensure that a dismissal is procedurally fair. Procedural fairness requires the employer to consult timeously with the employees affected, to explore alternatives to dismissal and to ensure that employees are fully informed about their rights throughout the process.