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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)

October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?