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Article 5/2026

LabourEdge

Part G of the Code of Good Practice: Dismissal (the Code) deals with dismissals on the basis of operational requirements.  How do these requirements differ from what was previously contained in the repealed Schedule 8, as well as what is currently contained in the LRA?

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The nature of operational requirements

The content of items 22(1) to 22(3) corresponds with items 1 and 2 of the repealed Schedule 8.

An employer’s operational requirements must, therefore, relate to its ‘economic, technological, structural or similar needs’.  The description as to what constitutes the aforesaid four operational requirements grounds continues to exist.  And, lastly, dismissals for operational requirements continue to be categorised as ‘no fault dismissals’.

Fair procedure

All the elements comprising a fair procedure that role players have become accustomed to have been maintained, such as:

  • the required written notice – annexure ‘A’ to the Code contains the relevant information to be made available
  • the consulting parties
  • the consultation process
  • the disclosure of information
  • the period of consultation

In the above regard, items 24(1) and 24(2) correspond with sections 189(1) and 189(3) of the LRA; items 24(3) and 24(4) correspond with sections 189(1) and 189(3) of the LRA; items 24(5) to 24(7) correspond, firstly, with sections 189(2) and s189(3) of the LRA and, secondly, with item 3 of the repealed Schedule 8; items 24(10) and 24(11) correspond, firstly, with s189(4)(a) of the LRA and, secondly, with item 4 of the repealed Schedule 8; items 24(12) and 24(14) correspond, firstly, with s189A(2)(d) of the LRA and, secondly, with item 5 of the repealed Schedule 8.

Selection criteria

The system that all role players have been used to in respect of selection criteria, severance pay and the duty of re-employment has also been maintained – in this regard, items 24(8) to 24(9) of the Code correspond with items 8 and 9 of the repealed Schedule 8; item 24(15) of the Code corresponds with item 10 of the repealed Schedule 8 and, lastly, item 24(16) of the Code corresponds with item 12 of the repealed Schedule 8.

So, what has changed?  The major changes are contained in items 23(2) and 23(3) of the Code and can be summarised as follows:

  • a dismissal for operational requirements must be a measure of last resort – the viewpoint is held that this position is not reflected in our current case law
  • a dismissal cannot take place if it can be avoided by alternatives identified in the consultation process – the Code mentions no defences with regard to such alternatives, such as, if they are unreasonable or not workable, they are not to be applied
  • furthermore, the employer must, on its own initiative, take appropriate steps to avoid retrenchment where such steps are reasonably possible – again, such stance is not reflected in our current case law
July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?