Substantive issues South African labour law

1 substantive issues

1.1 real reasons , increases in profits
1.2 large-scale dismissals

1.2.1 economic, technological, structural or similar needs
1.2.2 operationally justifiable on rational grounds
1.2.3 proper consideration of alternatives
1.2.4 selection criteria fair , objective

substantive issues
real reasons , increases in profits

before introduction of section 189a of lra in 2002, there no statutory definition of substantive fairness in case of operational-requirements dismissal. question factual one; employer must prove:

a dismissal operational reasons need not restricted cutting of costs , expenditure. profit, or increase in profit, or gaining advantage such more efficient enterprise, may acceptable reasons dismissal.

if employer can show profit made in accordance sound economic rationale, , follows fair process retrench employee, dismissal fair.

large-scale dismissals

section 189a of lra distinguishes between size of employers , size of dismissals when regulating substantive , procedural fairness of dismissal.

section 189a(1) distinguishes between small employer (less fifty employees) , big employer (more fifty employees).

in terms of s189a(1)(a) large-scale dismissal entail employer s dismissing

ten employees, if employer employs between fifty , 200 employees;
twenty employees, if employer employs between 200 , 300 employees;
thirty employees, if employer employs between 300-400 employees;
forty employees, if employer employs between 400-500 employees; and
fifty employees, if employer employs more 500.

in terms of s189a(1)(b), dismissal big employer of fewer prescribed minimum listed above still constitutes large-scale dismissal if number of employees dismissed, number of employees have been dismissed operational reasons in twelve months previously, exceeds number specified above.

this so-called rolling twelve-month period , must calculated backwards, starting date on employer gives notice in terms of section 189(3) of latest proposed dismissal operational reasons.

the purpose of twelve-month rolling period ensure employers not manipulate number of employees dismissed dismissal falls outside ambit of section 189a.

section 189a(19) of lra provides that, in dispute referred labour court concerning dismissal of number of employees in terms of subsection (1), court must find employee dismissed fair reason if

the dismissal give effect requirements based on employer’s economic, technological, structural or similar needs;
the dismissal operationally justifiable on rational grounds;
there proper consideration of alternatives; and
selection criteria fair , objective.

economic, technological, structural or similar needs

this requirement entails reason dismissal must operational requirements, defined in section 213. must real reason dismissal.

operationally justifiable on rational grounds

rational grounds grounds founded upon reason or logic. rationality test objective one, measuring acceptability of reasons dismissal against considered acceptable. not subjective test focussed on particular employer considered justifiable under circumstances.

proper consideration of alternatives

one of requirements procedurally fair dismissal consultations on measures avoid dismissals. inclusion makes procedural requirement requirement substantive fairness, , goes further requiring proper consideration.

proper consideration entails more merely considering alternatives. employer must apply mind , give defensible reasons dismissing such alternatives, , show dismissal last resort.

selection criteria fair , objective

one of requirements procedurally fair operational requirements dismissal parties must attempt reach consensus method used select employees dismissal. parties unable agree, criteria used must fair , objective. procedural requirement also, therefore, requirement substantive fairness.