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)
