Determining Substantive Fairness in Operational Requirements Dismissal matters. INTRODUCTION. 2012 was a challenging year with large job losses partly related to protracted strikes in the mining and transport industry and to the domestic and international economic climate.
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Determining Substantive Fairness in Operational Requirements Dismissal matters
2012 was a challenging year with large job losses partly related to protracted strikes in the mining and transport industry and to the domestic and international economic climate.
Unfortunately, retrenchments are not always undertaken for the fair reasons recognised by the LRA, namely economic, technological, structural or similar needs of employers. ‘Problem employees’ are often first on the list.....
Commissioners thus need to have a good understanding of the requirements for substantive fairness.
The LAC has adopted different tests or approaches at different times. These are some of them:
Decision must be bona fide and business-like.
Dismissal as a last resort.
Rationality – reasonable decision and not a ‘sham’.
Fairness/ reasonableness - fair to both parties.
Consideration of the operational needs that gave rise to the retrenchments. E.g. Cost reduction, a drive towards competitiveness, etc.
Is retrenchment the only way to achieve such operational needs? Are there not other ways to reduce costs?
Consideration of alternatives? E.g. re-skilling employees in order to take up alternative positions, offering transfers, voluntary severance packages, training layoff scheme, etc.
Method of selecting employees? ‘All the bad eggs out in one basket’ under the guise of restructuring?’