TOPIC 9: DISMISSAL: OPERATIONAL
REQUIREMENTS
Prescribed:
Association of Mineworkers & Construction Union & Others v Royal Bafokeng Platinum
•
Ltd & Others (2020) 41 ILJ 555 (CC) dismissal for operational requirements –
consultation parties
• Solidarity on behalf of Members v Barloworld Equipment Southern Africa & others (2022)
43 ILJ 1757 (CC) large scale dismissal for operational requirements – procedural
fairness
Definition (retrenchment)
Common law approach -> termination on notice
•
◦ Did not have dismissal based on operational requirements -> was not a problem under
the common law.
• But the Labour Relations Act:
◦ Defines operational requirement: the economic, technological, structural, and similar
needs of employer (Section 213)
▪ Economic -> financial
▪ Technological -> machine replace employees
▪ Structural -> re-organise the workplace to streamline the work, also M&A
◦ Lays down requirements for substantive and procedural fairness.
• No-fault dismissal -> the job has disappeared.
• Normally referred to Labour Court (after unsuccessful conciliation) - in contract to the
other which go to the CCMA.
'Similar needs' of employer
Employers try to fit dismissals under this term
•
• Incompatibility (SARU v Watson) / demand by third party (dismissal for incapacity)
• Derivative misconduct (theft/sabotage/serious violence): could be based on operational
requirements if only option to safeguard business and employees
◦ Cannot prove individual guilt of an employee.
◦ In isolated instances did not necessarily recognise it as such but that it may exist in
serious cases and may be justified as operational requirements to safeguard the
business
, ◦ Chauke: acts of sabotage and malicious damage to property occurred within a
department of the employer’s business. The employer was unable to determine which
of the employees employed within that department were guilty of malicious damage to
property. After various unsuccessful steps were taken to resolve the issue, all the
employees in the department were dismissed. The LAC found that the dismissals were
fair because the evidence established that the employees in the department were
guilty of misconduct. Also indicated that an employer could, in such a situation,
consider dismissing the employees on the basis of its operational requirements, but
then only if the dismissals are necessary to save the life of the enterprise.o Tiger Food
Brands v Levy: dismissal in the context of serious acts of violence and safety issues in
response to productivity measures could be justified on the basis of the employer’s
operational requirements.
◦ FAWU: strike accompanied by atrocious acts of violence on non-striking employees.
Unfair dismissal where the employer could not take disciplinary steps due to witness
intimidation and dismissed on operational requirements. Court pointed out that the
employer must show the misconduct had caused an economic rationale for the
dismissal (economic viability under threat)
• Polygraph elevated to operational requirement (in collective agreement)
◦ Khulani Fidelity: the employer and trade union concluded an agreement in terms of
which it was agreed: that only employees with proven integrity could be employed in
certain positions; that the employer would be entitled to subject employees to
quarterly polygraph testing; and, that employees who failed the test could be removed
from those positions and put into alternative positions after a consultation process.
Following a quarterly polygraph test, those employees who had failed the test were
consulted and offered alternative positions. The employees rejected the alternative
positions and were retrenched for operational reasons. The LAC found that the
agreement had been designed for operational reasons and that the dismissal for
operational reasons had been fair.
◦ NB: the court allowed it but note that the trade union accepted the practice.
• Dismissal for misconduct, incapacity, operational requirements not rigid categories, but
reasons proffered may not be a sham and correct procedure must be followed for the
ground of dismissal chosen
SA Rugby Union v Watson & Others (2019) 40 ILJ 1052
(LAC)
Facts:
• The respondent employee, employed by the appellant as the general manager in charge
of referees, was charged with misconduct and dismissed following an arbitration held in
terms of s 188A of the LRA.
2
REQUIREMENTS
Prescribed:
Association of Mineworkers & Construction Union & Others v Royal Bafokeng Platinum
•
Ltd & Others (2020) 41 ILJ 555 (CC) dismissal for operational requirements –
consultation parties
• Solidarity on behalf of Members v Barloworld Equipment Southern Africa & others (2022)
43 ILJ 1757 (CC) large scale dismissal for operational requirements – procedural
fairness
Definition (retrenchment)
Common law approach -> termination on notice
•
◦ Did not have dismissal based on operational requirements -> was not a problem under
the common law.
• But the Labour Relations Act:
◦ Defines operational requirement: the economic, technological, structural, and similar
needs of employer (Section 213)
▪ Economic -> financial
▪ Technological -> machine replace employees
▪ Structural -> re-organise the workplace to streamline the work, also M&A
◦ Lays down requirements for substantive and procedural fairness.
• No-fault dismissal -> the job has disappeared.
• Normally referred to Labour Court (after unsuccessful conciliation) - in contract to the
other which go to the CCMA.
'Similar needs' of employer
Employers try to fit dismissals under this term
•
• Incompatibility (SARU v Watson) / demand by third party (dismissal for incapacity)
• Derivative misconduct (theft/sabotage/serious violence): could be based on operational
requirements if only option to safeguard business and employees
◦ Cannot prove individual guilt of an employee.
◦ In isolated instances did not necessarily recognise it as such but that it may exist in
serious cases and may be justified as operational requirements to safeguard the
business
, ◦ Chauke: acts of sabotage and malicious damage to property occurred within a
department of the employer’s business. The employer was unable to determine which
of the employees employed within that department were guilty of malicious damage to
property. After various unsuccessful steps were taken to resolve the issue, all the
employees in the department were dismissed. The LAC found that the dismissals were
fair because the evidence established that the employees in the department were
guilty of misconduct. Also indicated that an employer could, in such a situation,
consider dismissing the employees on the basis of its operational requirements, but
then only if the dismissals are necessary to save the life of the enterprise.o Tiger Food
Brands v Levy: dismissal in the context of serious acts of violence and safety issues in
response to productivity measures could be justified on the basis of the employer’s
operational requirements.
◦ FAWU: strike accompanied by atrocious acts of violence on non-striking employees.
Unfair dismissal where the employer could not take disciplinary steps due to witness
intimidation and dismissed on operational requirements. Court pointed out that the
employer must show the misconduct had caused an economic rationale for the
dismissal (economic viability under threat)
• Polygraph elevated to operational requirement (in collective agreement)
◦ Khulani Fidelity: the employer and trade union concluded an agreement in terms of
which it was agreed: that only employees with proven integrity could be employed in
certain positions; that the employer would be entitled to subject employees to
quarterly polygraph testing; and, that employees who failed the test could be removed
from those positions and put into alternative positions after a consultation process.
Following a quarterly polygraph test, those employees who had failed the test were
consulted and offered alternative positions. The employees rejected the alternative
positions and were retrenched for operational reasons. The LAC found that the
agreement had been designed for operational reasons and that the dismissal for
operational reasons had been fair.
◦ NB: the court allowed it but note that the trade union accepted the practice.
• Dismissal for misconduct, incapacity, operational requirements not rigid categories, but
reasons proffered may not be a sham and correct procedure must be followed for the
ground of dismissal chosen
SA Rugby Union v Watson & Others (2019) 40 ILJ 1052
(LAC)
Facts:
• The respondent employee, employed by the appellant as the general manager in charge
of referees, was charged with misconduct and dismissed following an arbitration held in
terms of s 188A of the LRA.
2
