Revisiting dismissal for operational requirements under South African Labour Law
Kelaotswe, Hanny Lephai
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The Labour Relations Act of 1995 succinctly sets out factors which the employer ought to consider when dismissing employees based on operational requirements. Non-adherence to these considerations usually results in the whole or substantial part of the process being rendered invalid on grounds of unfairness by the courts. The two pronged significance of adhering to the prescribed procedure is mainly to, firstly, reassure retrenched employees, as well as the courts, that objective selection criteria was used and secondly, to eliminate suspicions of subjectivity towards employees who were already on the negative side of the employer. Notwithstanding the authoritativeness of the LRA, the courts have seen a proliferation of disputes emanating from dismissals for operational requirements. Therefore, it could be a challenge that the LRA still leaves latitude for employers to establish and implement their own criteria of selection so long as they are fair and objective. However, this ratiocination is, under the circumstances, an acceptable connotation of the right to freedom of trade, occupation and profession, as required by the Constitution. The courts are more often than not disinclined to run businesses of employers inside the court room. The rationale for this is mainly to avoid second guessing the decisions of the employers. In light of these submissions, the thorny and problematic aspect underpinning this dissertation is that there are instances where employers embark on the process of dismissing employees for operational requirements without having a good plan of action on how the process ought to be conducted or managed. Alternatively, when a good plan is in place, the challenge becomes that of implementation in accordance with the prescribed procedure. This dissertation seeks to revisit the law regulating dismissal for operational requirements, together with the inherent challenges cordoning off the proper implementation of such laws.
- Law