Dismissal due to operational requirements

In a recent case involving the Rustenburg Platinum Mines, the Supreme Court of Appeals found that there is no legal requirement for an employer to first consider alternative work options before it can dismiss an employee.

In a recent case involving the Rustenburg Platinum Mines, the Supreme Court of Appeals found that there is no legal requirement for an employer to first consider alternative work options before it can dismiss an employee.

This might be correct in a misconduct matter but not when dismissing an employee based on operational grounds.

When an employee is dismissed due to operational requirements, it is generally not a fault of an employee. It is therefore logical that a dismissal is the last resort.

In terms of section 85 of the Labour Relations Act (LRA) "every employee has a right not to be unfairly dismissed".

The dismissal of an employee would be fair if it is for a valid reason. According to section 188 of the LRA, one of the valid reasons for dismissal is operational requirements.

But there are further requirements that must be complied with when dismissing an employee due to operational requirements. If these requirements are not complied with, then the dismissal may be unfair.

The dismissal of an employee due to operational requirements came under scrutiny recently in a case of Andre Johan Oosthuizen and Telkom SA Limited (Unreported yet. Judgment on June 29, 2007).

Oosthuizen was employed by Telkom for 30 years and was retrenched in 2002.

Before his retrenchment he was one of the employees who were put in the redeployment pool as potential candidates for retrenchment. A number of vacant posts were advertised and the employees in the redeployment pool were allowed to apply.

Oosthuizen applied for about 22 of the advertised posts. He was shortlisted in some of the positions and was interviewed. The criteria the employer used in appointing employees from redeployment pool to the vacant posts were skills, suitability and employment equity.

Unfortunately the interviews did not yield any positive results. Oosthuizen became redundant and was subsequently retrenched.

Oosthuizen's contention, among others, was that some of the positions were offered to employees who had a shorter service period than him and that he could do the jobs given to them. The employer also recruited new employees for work that Oosthuizen was capable of doing. According to Oosthuizen, he was prepared to take any position even if it was a grade lower than the grade he had originally occupied.

Oosthuizen challenged his dismissal as being unfair and the Labour Court upheld his dismissal and he referred the matter further to the Labour Appeal Court for final determination.

The Labour Appeal Court held that an employer has an obligation not to dismiss an employee for operational requirements if that employer has work that the employee can perform either without any additional training or with minimal training. The employer has an obligation to take appropriate measures to avoid an employee's dismissal for operational requirements.

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