Skip to main content

Article 7/2024

LabourEdge

Is it permissible for an employer, when misconduct occurs, to dismiss employees on the basis of operational requirements?

_____________________________________

  • Both the labour appeal court (e g Chauke v Leeson Motors (1998) 19 ILJ 1441 (LAC)) and the labour court (SAMWU v City of Cape Town (2011) 22 SALLR 145 (LC)) have considered whether it is permissible for an employer to dismiss employees on the basis of an operational rationale for collective misconduct.
  • From the aforesaid judgments, it is apparent that, subject to certain safeguards to be implemented and rather tricky questions to be answered, it is permissible to dismiss a group of employees if misconduct is proven but the actual perpetrators not pinpointed.
  • The justification for such dismissal, on the basis of a commercial rationale, has been formulated as follows: ‘The necessity to save the life of the enterprise.’ – apparently, on this basis, the dismissal of innocent workers is justified.
  • n the Cashbuild judgment, the labour appeal court specifically makes reference to the difficulties to be encountered by following the above approach, as set out, inter alia, in FAWU v Premier Foods (2012) 33 ILJ 1779 (LAC) – in brief, these difficulties entail the application of the principles relating to a fault (i e misconduct) scenario to a faultless (i e no intention or negligence) scenario, being dismissal for operational requirements; and the factors to be taken into account in determining and applying the selection criteria justifying the dismissal of the innocent employees.
August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

August 3, 2026

Where do delictual claims fit into dispute resolution options applicable to employment disputes?