At first glance, there appears not to be a substantial shift in the approach adopted in the Code when compared to the previous Code of Good Practice on Dismissals based on operational requirements. For instance, the Code’s contents and requirements correspond largely with the aforementioned previous Code in respect of, amongst others, the following issues:
- The nature of operational requirements
- The required written notice
- The consulting parties
- The consultation process required
- Selection criteria
- The disclosure of information
- Severance pay
- Re-employment
However, a fundamental shift has occurred in respect of, amongst others, the following:
- The dismissal must be a measure of last resort – this is contrary to our current jurisprudence
- Employers must, outside of the consultation process, on their own initiative, take appropriate steps to avoid retrenchments where reasonably possible – this is also contrary to our current jurisprudence
Furthermore, the scheme adopted in the Code, so read with the anticipated changes to the LRA and the BCEA, also places a question mark on the approach originally adopted in SA Breweries (Pty) Ltd v Louw (2017) 28 SALLR 71 (LAC), so confirmed subsequently in, inter alia, Pratten v Afrisun (2020) 31 SALLR 159 (LC), Telkom SA Soc Ltd v Van Staden (2021) 32 SALLR 8 (LAC) and, eventually, the constitutional court in Regenesys Management (Pty) Ltd t/a Regenesys v Ilongo (2024) 34 SALLR 113 (CC). Such approach entails that a restructuring exercise may involve organisational structures being changed that could result in the adjustment and streamlining of roles and positions.
During such restructuring process, the employer is entitled to embark on a placement process requiring employees to compete for jobs – the criteria utilised during such process are not selection criteria ito s189(2)(b) and s189(7) of the LRA. If employees are not placed during such process, the substantive fairness of their dismissal still needs to be established in terms of fair selection criteria.
During the workshop, we will, amongst other things, deal with the following pertinent issues that are relevant in the new dispensation:
- Rights and obligations of the respective consulting parties under a collective agreement
- Rights and obligations of the respective parties under policies, practices and procedures
- The apparent new test to determine whether a dismissal, based on operational requirements, is fair, namely, such dismissal must be a measure of last resort
- The approach adopted by employers so as to render initiatives undertaken by them fair, when considering the lack of jurisprudence in this regard
- Pitfalls to be aware of during the consultation process, as well as the utilisation of annexure A to the Code
In respect of employers with more than 50 employees, the anticipated changes to s189A of the LRA will have the effect that such facilitation is no longer a bar to procedural fairness challenges subsequent to a dismissal and a dispute concerning the fairness of a dismissal (both substantive and procedural) is no longer prohibited. Furthermore, such dispute concerning the fairness of a dismissal may be referred to the labour court for determination, without consultation. During the workshop, we will unpack the aforesaid changes and the potential effects thereof on how facilitation should be conducted in future.
The anticipated changes to the BCEA include a provision that any dispute about the entitlement to severance pay (and not only in terms of s41 of the BCEA) will be referred to the CCMA or bargaining council (and not the labour court). During the workshop, we will specifically deal with the issue as to the approach to be adopted by the respective consulting parties in preparing for such a matter before the CCMA or bargaining council.
Employer-employee-specific workplace material to be provided to the SALLR facilitator before the workshop and to be considered during the workshop
Sample employment contracts covering various categories of employees, such as permanent fulltime employees and scheduled employees, appropriate policies, practices and procedures, forms currently used and appropriate collective agreements.
Approach to be adopted during the workshop
The workshop will commence with an analysis of the current approach adopted at your workplace, followed by an audit to determine the level of your non-compliance with the new requirements. Thereafter, a joint action plan will be developed to give effect to the issues identified in the audit – lastly, and most importantly, at the end of the workshop you must be in a position to initiate what is required of you to implement the action plan to ensure the required compliance levels.
