Selection criteria essential when dismissing employees based on operational requirements

Operational requirements is one of the categories of dismissal allowed by the Labour Relations Act.

Operational requirements is one of the categories of dismissal allowed by the Labour Relations Act.

Dismissal based on operational requirement is largely not an employee's fault.

There are certain requirements with which an employer is required to comply when dismissing an employee based on operational requirements.

The employer contemplating dismissal must consult with the employee affected.

There are various matters that should be the subject of consultation.

If the employee is unable to avoid dismissing the employee, the selection method of the employee affected becomes critical.

Section 189 provides "that the employer must select employees to be dismissed according to selection criteria that have been agreed to by consulting parties. If no criteria have been agreed, criteria that are fair and objective [must be applied]."

In this context, the parties would be the employer on the one hand and the trade union or workplace forum or the association representing employees affected by operational requirements.

When selecting employees, the Labour Appeal Court in the matter of Latex Surgical Products (Pty) Ltd held: "Without knowing the skills or special skills the employees who remained behind had, what skills the individual appellants had compared to them, what years of service they all had, what were the performance records and the disciplinary records of all the employees, including the individual appellants, the court is left to conclude on the basis of the respondent's ipse dixit [an assertion without proof] that there was a fair reason for the selection of the individual appellants for dismissal.

That cannot be accepted. In those circumstances I conclude that the selection criteria have not been demonstrated to have been fair and objective nor has the respondent shown that there was a fair reason to select the individual appellants and not other employees for dismissal.

Accordingly, I have no hesitation in concluding that the individual appellants' dismissal was unfair for lack of a fair reason."

It is very clear from this decision that there is no room for subjective criteria.

The failure to apply a selection method stated above might result in the dismissal being declared unfair.

What is also important to note is that the use of interviews as a selection process might be viewed as subjective.

The dismissal of an employee, after the interview might not be sufficient to render the dismissal fair.

More information in respect of those employees who remain behind might be necessary to assist the court whether the criteria used were fair and objective.