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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  How do these requirements differ from what was previously contained in the repealed Schedule 8, as well as what is currently contained in the LRA?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The content of items 22(1) to 22(3) corresponds with items 1 and 2 of the repealed Schedule 8.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items 24(5) to 24(7) correspond, firstly, with sections 189(2) and s189(3) of the LRA and, secondly, with item 3 of the repealed Schedule 8; items 24(10) and 24(11) correspond, firstly, with s189(4)(a) of the LRA and, secondly, with item 4 of the repealed Schedule 8; items 24(12) and 24(14) correspond, firstly, with s189A(2)(d) of the LRA and, secondly, with item 5 of the repealed Schedule 8.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has also been maintained – in this regard, items 24(8) to 24(9) of the Code correspond with items 8 and 9 of the repealed Schedule 8; item 24(15) of the Code corresponds with item 10 of the repealed Schedule 8 and, lastly, item 24(16) of the Code corresponds with item 12 of the repealed Schedule 8.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
November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?