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Article 7/2024

LabourEdge

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

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  • 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.
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?