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.
May 18, 2026

The previous article dealt with plant level collective agreements, in essence, to be considered in terms of s23 and 24 of the LRA.

On the other hand, sectoral level collective agreements are to be dealt with in terms of s31, read with s32 and s33A, of the LRA.

In respect of such sectoral level collective agreements, the following questions are currently of relevance:
• who is bound by a sectoral level collective agreement?
• what is the difference between a plant level collective agreement and a sectoral level collective agreement?
• how are collective agreements concluded in a bargaining council extended?
• how are sectoral collective agreements enforced?

May 11, 2026

What are the requirements to be complied with for a plant level agreement to constitute a collective agreement?

In respect of plant level collective agreements, the following questions are currently of particular relevance:

• who is bound by a plant level collective agreement?
• how does a plant level agreement extend to employees who are not members of the registered trade union or registered trade unions party to the agreement?
• if a plant level agreement has a specific beginning and end date, for what period is it binding?
• under what circumstances does a plant level agreement vary a contract of employment of an employee?
• if a plant level agreement is for an indefinite period, how can it be terminated?
• how are disputes regarding plant level collective agreements resolved?

May 4, 2026

From the previous articles dealing with employment equity, it is evident that a designated employer should, amongst other things (in no sequence of importance):

• identify the correct sector within which it operates, so that it can align itself with the sectoral targets
• ensure that its EEA9 classification is correct
• choose the right EAP
• determine whether a person is a suitably qualified person – firstly, same providing a ground for deviation from an employment equity plan and, secondly, same providing a justifiable reasonable ground for non-compliance with targets.

But, how should a designated employer deal with its employment equity targets from 2025 until the end of 2030?