It is well known that employers utilise dismissals based on operational requirements is a disguise for what is in actual fact a dismissal based on misconduct or incapacity the errant employees job suddenly becomes redundant, or the poorly performing employees job suddenly becomes redundant. Operational requirements 1 this act defines a dismissal based on the operational requirements of an employer as one that is based on the economic, technological, structural or similar needs of the employer. There have been a significant amounts of dismissals based on companies operational requirements retrenchments over the last few years as well as a definite rise in ccma referrals by employees who allege they have been retrenched. However, such dismissals must still pass the test for substantive and procedural. Talita laubscher biur llb ufs llm emory university usa is an attorney at bowman gilfillan in. Grindrodpolicy dismissal for operational requirements. The employee claimed that his dismissal as senior manager by the employer for operational reasons retrenchment was procedurally and substantially unfair. Can employees be dismissed for refusing to accept new terms.
The applicant had been working as a secretary and allegedly had been dismissed because of operational requirements. Because retrenchment is a no fault dismissal and because of its human cost, the act places particular. Labour relations act dismissal for operational reasons. Thompson c bargaining, business restructuring and the operational requirements dismissal 1999 ilj 755772 thompson 2006 ilj thompson c bargaining over business imperatives. Dismissals for operational requirements are permitted by the labour relations act. Labour relations act dismissal for operational reasons worklaw. Dismissals based on operational requirements what every. This provision raised important questions of law, as it brought to the fore the conflict that existed between this provision and sections 1881aii and 189 of the lra, which permits dismissals for operational requirements. As a general rule, economic reasons are those that relate to the financial management of the enterprise.
The requirements might be database requirements, system attributes, and functional requirements. Operational requirements or automatically unfair dismissal. However, there are other requirements that are often sources of serious problems for production systems, such as number of connections to the database, memory allocation, or coexistence with other, even unrelated, systems. Code of good practice operational requirements, document. Operational requirements an option when considering. It is difficult to define all the circumstances that might legitimately form the basis of a dismissal for this reason. It is well known that employers utilise dismissals based. Dismissals for operational requirements have been categorised as no fault dismissals. However, such dismissals must still pass the test for substantive and procedural fairness. The court noted that implicit in the requirement of a free opportunity to make a meaningful proposal in the consultation process is the duty to give.
Can employees be dismissed for refusing to accept new. Is south african labour law for dismissal based on operational. Business restructuring and operational requirements. Jan 25, 2016 dismissal related to operational requirements section 189 of the labour relation act in the past years we have seen employees embarking on nationwide strikes, which meant that there was no operation taking place in most companies due to the nationwide strikes during that period. The facts appertaining to the case the company entered into a restructuring programme, with the resulting retrenchments. This minimum requirement does not relieve an employer from attempting to. Sep 23, 2016 operational requirements is defined in s 2 of the lra and the word redundant should be avoided, as also retrenchment. What are the exact differences between functional requirements, operational requirements and technical. The labour relations act does not use the term retrenchment but rather refers to dismissals based on operational requirements.
Fairness of dismissal for operational requirements labour guide. Title code of good practice operational requirements description code of good practice on operational requirements this act defines a dismissal based on the operational requirements of an employer as one that is based on the economic, technological, structural or similar needs of the employer. Articulate the requirements in outputoriented and measurable terms. Dismissals for operational requirements law, democracy. Dismissal based on operational requirements skills portal. The companyorganisation must advance some plausible reason for the proposed dismissals, which may be anything from a need to decrease costs to a need to reorganise to meet different business needs. When will operational requirements justify the dismissal. Cliffe dekker hofmeyr is the termination of employment for. This act defines a dismissal based on the operational requirements of an employer. Aveng denied that the dismissals were automatically unfair and argued that the actual reason for the dismissals was its operational requirements. The importance of preparing your company to downsize. Operational requirements are defined in the lra labour relations act as requirements based on the economic, technological, structural or similar needs of an employer and dismissals for this reason are regulated by section 189 of the lra and generally known as retrenchment. Failure by the employer to prove that the reason for dismissal is a fair reason based on the employers operational requirements will result in the dismissal failing the substantive test. I have done tasks based on java, but my seniors assigned me to collect requirements for creating a globalized bug tracking tool.
Jul 03, 2016 dismissals operational requirements section 189a retrenchments retrenched employees seeking consolidation of section 189a claim relating to alleged procedural fairness with section 1915bii claim relating to alleged substantive unfairness of retrenchment consolidation refused because section 189a requires procedural and. Dismissals for operational requirements must also be procedurally fair. Dismissals based on operational requirements what every employer should know frank setati when an employer contemplates retrenching employees based on their economic, technological, structural, or similar needs section 2 of the lra, the employer must consult with affected parties or their representatives regarding the impending. Unfair dismissal operational requirements 2004 25 ilj 896. Dismissals for operational requirements are classed as no fault dismissals meaning that the dismissal is not due to any fault of the employee. Thus, the termination of employment was found to be lawful. The reasons for the proposed dismissals for operational requirements. In business analysis, transition requirements define any and all temporary capabilities, conditions, or activities that are necessary for moving solutions out of development and into realworld business use. Operational requirements are defined in section 2 of the lra to be economical, technological, structural or similar needs of the employer. In plain language the company must advance some plausible reason for the proposed dismissals which may be anything from a need to curtail costs to a need to reorganize to meet different business needs. It was held that the dismissal was substantively fair. Lallie j dismissed mr ketses argument that the employer had breached s 189a as it had not appointed a commission for conciliation, mediation and arbitration facilitator but instead a private facilitator.
Deciding on the severance package for employees affected by the dismissal for operational requirements. As businesses struggle to adapt to international pressures and stagnant domestic economic growth, constant business reorganisation has become a. It is the most comprehensive, searchable collection of fulltext african electronic journals available on one platform. By nicolette ras in the case of mclaughlin v independent loss consultants cc the court had to decide whether the employees dismissal was automatically unfair and whether it was for operational requirements that could possibly justify dismissal. Where you terminate the employment of an employees for operational reasons. Dismissal based on operational requirements, s189, retrenchments.
Dismissals for operational requirements retrenchments. The labour court found that the redesigned job descriptions, on the uncontested evidence. The statutory requirements for a fair dismissal for operational requirements the requirements for a dismissal for operational requirements are regulated in sections 188, 189, 189a of the labour relations act, 95, as amended, as well as the code of good practice on dismissals based on operation requirements. The music of the spheres after frys metals 2006 ilj 704730 todd and damant 2004 ilj todd c and damant g unfair dismissal operational requirements 2004 ilj 896922. The labour court, in holding that the dominant, or true, reason for the dismissal was the employers operational requirements, found the employees dismissals to be fair. Operational requirements are capabilities, performance. Bumping by now most employers are aware of the requirements of section 189 of the labour relations act, when implementing retrenchments, the pitfalls and problems associated with retrenchments. Three categories of dismissals may arise from employers operational requirements, retrenchment termination because the employees are superfluous to the employers need, redundancy termination because the employer no longer has the required skills and transfers termination because of the transfer of the whole or part of the employers business.
With regard to the meaning of similar needs in the s 2 definition of operational requirements it is accepted that this concept is broad enough to include factors. In our view, a deferential approach, if properly understood and properly applied, is appropriate and. Business restructuring and operational requirements dismissals. A requirement is an attribute of a product, service or system necessary to produce.
Section 2 of the labour relations act defines operational requirements as requirements based on the economic, technological, structural, or similar needs of an employer. Pdf business restructuring and operational requirements. As a general rule, economic reasons are those that relate to the financial management of the. Part five looks at measures taken around the world to avoid or minimise dismissals based on operational requirements a requirement of s 1892aiii of the.
The labour court found that in terms of the code of good practice. As businesses struggle to adapt to international pressures and stagnant domestic economic growth, constant business reorganisa. Introduction dismissals for operational requirements are proving to be a challenging area for human resource practitioners. Aveng maintained that the dismissals were based on its operational requirements. As businesses struggle to adapt to international pressures and stagnant domestic economic growth, constant business reorganisation has become a fact of life for many south african employers. Substantive fairness in dismissals based on operational. Mar 03, 2009 i wanted to put together some kind of architects 101 type talk, so ive decided to focus on one aspect of requirements analysis. Fairness of dismissal for operational requirements. May 24, 2017 the section 189 retrenchment process in terms of the labour relations act section 189 of the labour relations act lra permits employers to dismiss employees for operational requirements.
Code of good practice on dismissals based on operational. When a labour court judge presides over a retrenchment case brought by an employee or a trade union on behalf of an employee, heshe must look at a number of. Dismissal based on operational requirements, s189 lra. S 189 deals with dismissals based on operational requirements. Identify operational performance parameters capabilities and characteristics required for the proposed system. In particular, it considers innovative ways of finding alternatives to retrenchment. This case is an unfortunate example of all that can go wrong if parties do not genuinely engage one another in a retrenchment consultation process, with a proper open mind as to one anothers respective. To determine if the dismissal based on operational requirements was substantively unfair parties must put case to other p. In other words, it is not the employee who is responsible for the termination of employment. Automatically unfair and operational requirement dismissals.
The recent case of national union of metalworkers of south africa numsa and aveng trident steel aveng has finally at least for now settled the debate regarding automatically unfair dismissals in terms of section 1871c of the labour relations act lra in the context of an employers operational requirements aveng experienced an economic downturn as a result of a decline in. Labour relations act 1995 section 189 and basic conditions of employment act 1997 sections 35, 37 and 41. Dismissal for operational requirements is classed as no fault dismissals i. Operational requirements are those statements that identify the essential capabilities, associated requirements, performance measures, and the process or series of actions to be taken in effecting the results that are desired in order to address mission area deficiencies, evolving applications or threats, emerging technologies, or system cost improvements. Because retrenchment is a no fault dismissal and because of its human cost, this act places particular. How to define transition and technology requirements. The role of this court is therefore to exercise a proactive and supervisory role in relation to the procedural obligations that attach to operational requirements dismissals.
Failure to comply with any one requirement should not necessarily result in procedural unfairness. In the current economic climate, it has become increasingly necessary for many companies to start taking a hard look at their operational costs and find ways of maximizing productivity while minimizing expenditure. The purpose of s189 of the labour relations act is to investigate through the. Section 189a deals with large scale dismissals, whilst section 189 deals with small.
May 10, 2014 dismissal for operational requirements posted on may 10, 2014 by bregmans the labour relations act defines operational requirements to mean requirements based on the economic, technological, structural or similar needs of an employer. Software requirements are too often automatically identified with user requirements, such as functions related to use cases or performance levels. This page is about labour relations act dismissal for operational reasons. A dismissal based on operation requirements is regarded as a nofault dismissal. Of great interest to labour are cases dealing with whether an employer who unilaterally changes terms and conditions of employment may dismiss the affected employee for operational requirements should that employee refuse. Operational requirement dismissal due to financial prudence is allowed provided there is a sound economic reason for the particular dismissal productivity. What are the differences between functional, operational and. In dealing with the third requirement the court acknowledged that it is at this stage that the rights of. Dismissal related to operational requirements section 189 of the labour relation act in the past years we have seen employees embarking on nationwide strikes, which meant that there was no operation taking place in most companies due to the nationwide strikes during that period.
Unfair dismissals vs dismissals for operational requirements. These are defined as requirements based on economic, technological, structural or similar needs of the employer. I thought this might be a good starter topic, as getting these right will help you build a reliable system. As regards procedural fairness, van niekerk j held that it is not appropriate to simply apply a checklist approach to retrenchments and that the employer must engage openly and honestly in a manner that allows both parties to express their views and proposals. The labour relations act defines operational requirements to mean requirements based on the economic, technological, structural or similar needs of an employer retrenchment procedure relevant legislation. I have read many types of requirements from wikipedia and the mindtools website, but it was very confusing. Algorax and beyond 2005 26 ilj 595 2005 ilj p595 darcy du toit introduction this article revisits a vexed and much debated question. To determine if the dismissal based on operational requirements was substantively unfair. Assessing the substantive fairness in dismissal for operational requirements chapter 1. Dismissals for operational requirements are proving to be a challenging area for human resource practitioners.
Ukzns legal compliance with sections 189 and 189a of the. Describe what has to be done with people, process, and technology before you can get from the asis into the tobe. Legal implications for fixedterm contract employees 5. Ukzns legal compliance with sections 189 and 189a of the lra. This act defines a dismissal based on the operational requirements of an employer as one that is based on the economic, technological, structural or similar needs of the employer.
Operational requirements dismissal south african labour. The recent case of national union of metalworkers of south africa numsa and aveng trident steel aveng has finally at least for now settled the debate regarding automatically unfair dismissals in terms of section 1871c of the labour relations act lra in the context of an employers operational requirements. Each case is unique, and departures from the norms established by this. It is well known that employers utilise dismissals based on operational requirements is a disguise for what is in actual fact a dismissal based on misconduct or incapacity the errant employees job. Sabinet african journals reliable research that offers more than 500 african journals, including the african journal archive. Numsa contended that the employees dismissals were automatically unfair in terms of section 1871 c of the lra as they were dismissed for refusing to accept avengs demands in respect of altered job descriptions and grade structure. The employee was offered a lower position with a reduction in earnings of r800. Pdf automatically unfair and operational requirement. The individual applicants were all employed in the specialised cargo handling unit of g4s at the or tambo international airport and were dismissed for a reason based on operational requirements. Dismissal based on an employers operational requirements as per.
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