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. Dismissals for operational requirements have been categorised as no fault dismissals. Ukzns legal compliance with sections 189 and 189a of the lra. Dismissals for operational requirements are classed as no fault dismissals meaning that the dismissal is not. Can employees be dismissed for refusing to accept new. Failure to comply with any one requirement should not necessarily result in. The court noted that implicit in the requirement of a free opportunity to make a.
It is difficult to define all the circumstances that might legitimately form the basis of a dismissal for this. We are now taking a look at the fairness of dismissal based on operational requirements. Dismissals for operational requirements are classed as no fault dismissals. Pdf business restructuring and 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.
Operational software is computer software designed to improve and streamline the regular operations of a business. South africa procedural requirements for collective. Operational requirement dismissal due to financial prudence is allowed. 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. Telkom has big plans to turn the company around, which include restructuring and retrenching many management staff members and specialists. After holding that a dismissal based on operational requirements was. The matters on which consultation is necessary are listed in s189 2. Following the labour relations acts2 lra stepbystep process for dismissal based on operational requirements, the first section examines south africas provisions for an employer to consult under s 1892 of the act and finds that there is a legal obligation. The labour court found that in terms of the code of good practice. This act defines a dismissal based on the operational requirements of an employer as. When an employer contemplates dismissing one or more employees for reasons based on the employers operational requirements, the employer must consult. Dismissals based on operational requirements view the code of good practice on dismissal based on operational requirements 1. Substantive fairness in dismissals based on operational.
Legal implications for fixedterm contract employees 5. Dismissal based on operational requirements skills portal. In south africa, an employee can be terminated as a result of hisher misconduct or incapacity, or as a result of the employers operational requirements. 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. Sec 189 lra applies to dismissals based on operational requirements of one or more employees.
S 189 deals with dismissals based on operational requirements. Dismissals for operational requirements must also be procedurally fair. Code of good practice operational requirements, document. Operational software seeks to improve operating efficiencies, increase business productivity and lower operating costs by removing operational bottlenecks and. With attention to tool qualification levels tqls and a configuration management cm system, development tools, projects, and environments can transition smoothly between requirements. Operational requirements are defined in section 2 of the lra to be economical, technological, structural or similar needs of the employer. On 21 january 2009, the employer issued section 1893 notices to four of its employees inviting them to consult with regard to their proposed dismissal based on operational requirements. A company employing over 1400 employees needs to reduce in.
Ukzns legal compliance with sections 189 and 189a of the. Software patents and pretrial dismissal based on ineligibility cite as. Dismissals for operational requirements retrenchments. 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. These are defined as requirements based on economic, technological, structural or similar needs of the employer. 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.
Dismissal based on operational requirements, s189 lra. Introduction dismissals for operational requirements are proving to be a challenging area for human resource practitioners. The labour relations act does not use the term retrenchment but rather refers to dismissals based on operational requirements. On the definition of operational requirements, see sec. If the employer fails to do that, or fails to prove that the dismissal was effected in accordance with a fair procedure, the dismissal is unfair. Serendipity software disciplinary policy, termination. The difficulty for practitioners lies in the discretionary requirements of s189. The most common reason people are retrenched in south. The employee claimed that his dismissal as senior manager by the employer for operational reasons retrenchment was procedurally and substantially unfair. As the transition to do178c takes hold, ensuring tool qualification for software being developed to the new standard is a must. In particular, it considers innovative ways of finding alternatives to retrenchment. S189 lra, dismissals based on operational requirements retrenchments. To determine if the dismissal based on operational requirements was substantively unfair parties must put case to other p.
These are defined as requirements based on economic. Dismissal based on an employers operational requirements as per. The lc upheld a dismissal for a valid and fair reason based on operational requirements. Is south african labour law for dismissal based on. Dismissals based on operational requirements by employers with more than 50 employees. Operational requirements an option when considering retrenchment. Operational requirements dismissals are governed by section 189 of the labour relations act 66 of 1995 lra. It is difficult to define all the circumstances that might legitimately form the basis of a dismissal for this reason. Aveng denied that the dismissals were automatically unfair and argued that the reason for the dismissals was based on its operational requirements. My husband retrenched three staff and replaced them with. Identify operational performance parameters capabilities and characteristics required for the proposed system. Is south african labour law for dismissal based on operational.
Dismissals based on operational requirements worklaw. Labour relations act dismissal for operational reasons worklaw. Where you terminate the employment of an employees for operational reasons. Section 189 of the south african labour relations act provides for procedures to be followed by an employer when contemplating to dismiss one or more employees for.
As a result, it issued a section 189 notice in terms of the lra. Selection criteria essential when dismissing employees. Dismissal related to operational requirements section 189 of the labour relation act. In other words to convert them from disputes of right to interest. This minimum requirement does not relieve an employer from attempting to reach. Software requirements are too often automatically identified with user requirements, such as functions related to use cases or performance levels. Code of good practice on dismissals based on operational requirements the lra defines a dismissal based on operational requirements as one based on the economic, technological, structural or similar needs of the employer. The matters on which consultation is necessary are listed in s1892. A critical analysis of operational requirement dismissal.
Section 1881b of the lra requires that such dismissals must be effected in accordance with a fair procedure. 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. It is well known that employers utilise dismissals based on operational requirements is. It is submitted that the labour court correctly refused to allow the trade union to consolidate cases concerning alleged unfair process and substance. On march 2009, they were issued with notices of termination advising them that their notice period would run from 22 march 2009 and that their termination. As businesses struggle to adapt to international pressures and stagnant domestic economic growth, constant business reorganisa. Test to determine substantive fairness in a dismissal for operational requirements. Selection criteria essential when dismissing employees based on operational requirements by unknown 01 april 2008 02. Notice is hereby given in terms of section 2032 of the labour relations act, 1995 act no.
Assessing the substantive fairness in dismissal for operational requirements chapter 1. The labour court found that the dismissals were not automatically unfair. Fairness of dismissal for operational requirements. 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. Business restructuring and operational requirements dismissals. 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. Aveng denied that the dismissals were automatically unfair and argued that the actual reason for the dismissals was its operational requirements.
In about 2002 trade unions demanded the right to strike over dismissals based on operational requirements. Test to determine substantive fairness in a dismissal for. 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. 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 lra. Operational requirements an option when considering. Although crafted in procedural terms the object of section 189 is substantive. 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. Dismissal for operational requirements is classed as no fault dismissals i. We use your linkedin profile and activity data to personalize ads and to show you more relevant ads.
A dismissal based on operation requirements is regarded as a nofault dismissal. Articulate the requirements in outputoriented and measurable terms. Fairness of dismissal for operational requirements labour guide. 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. The purpose of s189 of the labour relations act is to investigate through the. 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. Introduction dismissals for operational requirements are proving to be a. The employee was also deprived of severance pay and ordered to pay the legal costs. Section 189 of the lra is clear and should not be held up as checklist to. Dismissal based on operational requirements, s189, retrenchments.