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 How do these requirements differ from what was previously contained in the repealed Schedule 8, as well as what is currently contained in the LRA?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The content of items 22(1) to 22(3) corresponds with items 1 and 2 of the repealed Schedule 8.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24(5) to 24(7) correspond, firstly, with sections 189(2) and s189(3) of the LRA and, secondly, with item 3 of the repealed Schedule 8; items 24(10) and 24(11) correspond, firstly, with s189(4)(a) of the LRA and, secondly, with item 4 of the repealed Schedule 8; items 24(12) and 24(14) correspond, firstly, with s189A(2)(d) of the LRA and, secondly, with item 5 of the repealed Schedule 8.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has also been maintained – in this regard, items 24(8) to 24(9) of the Code correspond with items 8 and 9 of the repealed Schedule 8; item 24(15) of the Code corresponds with item 10 of the repealed Schedule 8 and, lastly, item 24(16) of the Code corresponds with item 12 of the repealed Schedule 8.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