The Duty on the Employer to Consult prior to Dismissal for Reasons Based on Operational Requirements: Section 189 of the Labour Relations Act 66 of 1995 under the Spotlight

• Jurisdiction: South Africa
• Date: 03 September 2019
• Pages: 154-163
• Author: T E Manamela
• Citation: (2000) 12 SA Merc LJ 154
• Published date: 03 September 2019

The Duty on the Employer to Consult

prior to Dismissal for Reasons Based on

Operational Requirements: Section 189

of the Labour Relations Act 66 of 1995

under the Spotlight

TE MANAMELA

University of South Africa

1 Introduction

Employers are frequently forced to bring changes to their companies

because of economic, structural or technological requirements. It is

difficult to define all the circumstances that might legitimately form the

basis of a dismissal for these reasons. This has to a greater extend also

been exacerbated by the view that the courts will not intervene and

impose their view on employers of what constitutes an appropriate

commercial decision (Halton Cheadle, PAK le Roux, Clive Thompson &

Andre van Niekerk 'The Authoritative Annual Review of Labour Law'

(1999) 10

Current Labour Law

4). These circumstances at times compel

employers to terminate the employment of some of their employees to

effect savings, to make way for the introduction of new technology, or

to restructure their businesses. The termination of employment of the

affected employees constitutes a dismissal for operational requirements,

also known as retrenchment. It may be either fair or unfair depending on

whether the employer followed the correct procedure in effecting the

dismissals. This is the most difficult type of dismissal to deal with because

unlike, for example, dismissals for incapacity and misconduct, the

employee dismissed for operational requirements is not at fault. It has

therefore been categorized as a 'no-fault' dismissal. Put differently, the

employee is not responsible for the termination of his or her employment.

The effective cause of the termination is one or more external or internal

factors relating to the employer's business needs (see generally Christa de

Beer (ed) 'Schedule 8 item 12 (2) LRA 66 of 1995'

Butterworths Forms and

Precedents: Employment 2: Individual Labour Law

(Issue 1, Sept 1998 —

DSM (4)12). It differs from the other two types of dismissals referred to

above, namely dismissal for incapacity and misconduct, in the sense that

the employees affected are economically active and may have rendered

impeccable service to their employers and are still able to do so (see John

Grogan

Workplace Law

2 ed (1997) at 144).

The manner in which dismissal for operational reasons arises, together

with its effects on the employees affected, has made it a contentious issue

154

(2000) 12 SA Merc LJ 154

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