Article 17/2022

What are the consequences of agreement reached in respect of selection criteria to be used during a restructuring exercise?

What are the consequences of agreement reached in respect of selection criteria to be used during a restructuring exercise?

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Selection criteria must either be agreed upon or fair and objective.  Agreement is to be reached between the consulting parties (what s189(7) of the LRA means is that, where the consulting parties have agreed upon the selection criteria, the employer is obliged to use the agreed selection criteria to select employees to be dismissed, even if such criteria are not objective).

The consulting parties, for the purposes of s189(7) of the LRA, are the parties as set out in s189(1) of the LRA.

Within the hierarchy of the consulting parties provided in s189(1) of the LRA, once agreement has been reached with the true consulting party, no further agreements are required in respect of any of the other entities mentioned in such section.

Aunde South Africa (Pty) Ltd and Others v National Union of Metalworkers of South Africa [2012] 10 BLLR 945 (LAC)

Ketse v Telkom SA (Soc) Ltd and Others [2015] 4 BLLR 436 (LC)

NUMSA v South African Airways [2017] 9 BLLR 867 (LC)

AMCU v Royal Bafokeng Platinum Ltd and Others (2020) 31 SALLR 1 (CC); (2020) 41 ILJ 555 (LC)

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.