Skip to main content

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  How do these requirements differ from what was previously contained in the repealed Schedule 8, as well as what is currently contained in the LRA?

_____________________________________

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The content of items 22(1) to 22(3) corresponds with items 1 and 2 of the repealed Schedule 8.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items 24(5) to 24(7) correspond, firstly, with sections 189(2) and s189(3) of the LRA and, secondly, with item 3 of the repealed Schedule 8; items 24(10) and 24(11) correspond, firstly, with s189(4)(a) of the LRA and, secondly, with item 4 of the repealed Schedule 8; items 24(12) and 24(14) correspond, firstly, with s189A(2)(d) of the LRA and, secondly, with item 5 of the repealed Schedule 8.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has also been maintained – in this regard, items 24(8) to 24(9) of the Code correspond with items 8 and 9 of the repealed Schedule 8; item 24(15) of the Code corresponds with item 10 of the repealed Schedule 8 and, lastly, item 24(16) of the Code corresponds with item 12 of the repealed Schedule 8.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
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?