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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)

August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

August 3, 2026

Where do delictual claims fit into dispute resolution options applicable to employment disputes?