- Title
- Substantive fairness in dismissals for operational requirements cases
- Creator
- Camagu, Asanda Pumeza
- Subject
- Employees -- Dismissal of -- Law and legislation -- South Africa
- Subject
- Labor discipline -- Law and legislation -- South Africa
- Subject
- Unfair labor practices -- South Africa
- Type
- Thesis
- Type
- Masters
- Type
- LLM
- Identifier
- vital:10214
- Identifier
- http://hdl.handle.net/10948/d1008114
- Identifier
- Employees -- Dismissal of -- Law and legislation -- South Africa
- Identifier
- Labor discipline -- Law and legislation -- South Africa
- Identifier
- Unfair labor practices -- South Africa
- Description
- Part II of the International Labour Organisation Convention 158 recognises operational requirements of an organisation as a ground for dismissal. Section 213 of the Labour Relations Act describes operational requirements reasons as requirements based on the economic, technological, structural or related needs of an employer. The employer‟s needs in case of operational requirement dismissal must be separated from the other reasons for dismissal, such as misconduct and incapacity. Operational requirements dismissals are governed by section 189 of the LRA. The LRA draws a distinction between small and large scale dismissals and regulates them separately. Section 189 control small scale dismissals, while section 189A pertains to large scale dismissals For substantive fairness of a dismissal for operational requirements, the employer must prove that the said reason is one based on operational requirements of the business. The employer must be able to prove that the reason for the dismissal falls within the statutory definition of operational requirements. Employers are not allowed to use retrenchment to dismiss employees who they believe to have performed unsatisfactorily. This means that employers are not entitled to retrench for ulterior reasons, than those of operational requirements.The Labour Court has held that an employer may not under any situation retrench an employee on a fixed-term contract if the termination takes place before the contract of the employee ends, unless the contract of employment makes provision for termination at an earlier date. Retrenchment in this situation will amount to a breach of contract. Another point of interest in dismissals for operational requirements is that the Labour Relations Act states that it is not unlawful to dismiss a striking employee for reasons based on the employer‟s operational requirements. In relation to the selection criteria to be used during these dismissals, the Labour Relations Act again states that if an agreement cannot be reached between the consulting parties, then the employer must use criteria that are fair and objective.
- Format
- 50 leaves
- Format
- Publisher
- Nelson Mandela Metropolitan University
- Publisher
- Faculty of Law
- Language
- English
- Rights
- Nelson Mandela Metropolitan University
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NMMU Department of Mercantile Law
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