Article 13/2022

What are the stages identified when a restructuring exercise has been undertaken in the scenario where employees compete for new positions in such restructured organisation?

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In Pratten v Afrisun KZN (Pty) Ltd (2020) 31 SALLR 159 (LC), the labour court identified the following stages:

stages 1 and 2

  • during these stages, compliance with minimum criteria (e.g. minimum qualifications, applicable minimum experience, etc) are to be established
  • only those employees who comply with such minimum criteria are to be assessed in the assessment process where behavioural competencies are to be determined
  • those employees who do not comply with the said minimum criteria, do not participate in the subsequent stages and fall out of the process, subject to the employer attempting to find alternative employment

stage 3

  • only those employees who comply with the aforesaid minimum criteria are to proceed to stage 3, which stage entails, in essence, the assessment of behavioural competencies of such employees, in a ranking system (by means of psychometric testing)

stage 4

  • the results of stage 3 will determine whether or not employees are placed
  • should an employee fall out on the basis of such results, the employer will attempt to find alternative employment for the employee
  • however, successful candidates will only be placed if they accept the terms and conditions attached to the new restructured positions – if they do not accept such terms and conditions, they fall out of the process, subject to the employer attempting to find alternative employment
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A case is moot and therefore not justiciable if it no longer presents an existing or live controversy. With reference to National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA 1 (CC), how did the supreme court of appeal, in Mhlontlo Local Municipality and Others v Ngcangula and Another (2024) 35 SALLR 132 (SCA) recently deal with this issue?

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The principle underlying the doctrine of peremption is that no person can be allowed to take up two positions inconsistent with one another, or, as is commonly expressed, to blow hot and cold, to approbate and reprobate when considering pursuing litigation. With reference to Qoboshiyane NO v Avusa Publishing Eastern Cape [2012] ZASCA 166; 2013 (3) SA 315 (SCA), what is the test to be applied to determine whether or not a party has perempted its right to institute legal proceedings?