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Article 21/2025

The constitutional court, recently, in Regenesys Management (Pty) Ltd t/a Regenesys v Illungo (2024) 35 SALLR 113 (CC), had the opportunity to, once again, look at this scenario and, in doing so, placed the following principles under the spotlight:
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  • it is an acceptable approach that, when restructuring takes place, an employer is entitled to propose a change of the current organisational structure by proposing the adjustment and streamlining of roles and positions – such altered job functions are to be evaluated in terms of s189 and s189A
  • when an employee is dislocated from a current job in a current organigram and is required to participate in a placement process regarding a new job or jobs in a new organigram, it is not unfair to require such employee to apply for such jobs and to participate in the placement process
  • placement criteria for the new job may entail the following:
    • qualifications and experience
    • qualification and potential
    • LIFO
  • in Pratten v Afrisun (2020) 31 SALLR 159 (LC), a similar approach was followed, but the employer regarded the placement criteria as related to technical competencies (e g can the employee drive the bus) and behavioural competencies (e g should the employee be a bus driver) – within this environment, the LC recognised, in respect of behavioural competencies, the utilisation of psychometric testing
  • when an employee competes in the placement process, such criteria are not selection criteria in terms of s189(2)(b) or s189(7) of the LRA
  • Regenesys (CC) makes it clear, like Pratten (supra), that, if an employee does not make it in the placement process, and stays dislocated, the subsequent fairness of his/her dismissal still needs to be established in terms of the normal selection criteria applicable to dismissals for operational requirements

See, further, Telkom SA Soc Ltd v Van Staden (2021) 32 SALLR 8 (LAC); (2021) 42 ILJ 869 (LAC) and SA Breweries (Pty) Ltd v Louw (2017) 28 SALLR 71 (LAC)

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?