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Article 20/2022

Previous articles focussed on the principle that the assessment criteria for appointment in a restructured position are not equivalent to selection criteria envisaged by s189 and s189A of the LRA [e.g. Article 16/2022]. 

What are the principles extracted from Telkom SA Soc Ltd v Van Staden (2021) 32 SALLR 8 (LAC); (2021) 42 ILJ 869 (LAC), SA Breweries (Pty) Ltd v Louw (2017) 28 SALLR 71 (LAC) and Pratten v Afrisun KZN (Pty) Ltd (2020) 31 SALLR 159 (LC) that govern such process?

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  • it is not unfair to require employees to compete in a placement process as part of the restructuring exercise entailing organisational structure changes, adjusting and streamlining roles and positions, etc
  • when competing for such positions, the employer is entitled to take into account both technical competencies and behavioural competencies and the criteria to determine such competencies are not selection criteria in terms of s189(2)(b) read with s189(7) of the LRA
  • however, the entire process, even though not constituting selection criteria, is subject to judicial scrutiny, which entails, inter alia, the following:
  • the labour court is entitled to scrutinise the entire placement process and decisions to determine if they are fair
  • the labour court, however, is not entitled to decide (i) what process it would have adopted and (ii) what placement decisions it would have preferred
  • the labour court is entitled to determine whether the process was subjective or not, arbitrary, capricious or inconsistent
  • when an employee is not placed on a competitive basis, only then do selection criteria for dismissal in terms of s189(7) of the LRA ‘kick in’, which must either be agreed upon or fair and objective
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?