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.
March 10, 2025

What is an employer to do when it suspects that a medical practitioner is issuing pre- signed sick notes, or permitting its employees to buy sick notes, or, alternatively, is engaging in some other dubious practice regarding the issue of sick notes? What is an employer to do when it suspects that a person is not entitled to practice as a medical doctor?

March 7, 2025

Are you required to interpret any of the following: pre-trial minutes, strike ballot guidelines, the LRA, a separation agreement, a benefits dispute, an arbitration award, the BCEA, a restraint of trade, a traditional disciplinary enquiry charge sheet, the constitution of a trade union, etc?

March 4, 2025

The labour appeal court recently, in Murray and Roberts Cementation (Pty) Ltd v AMCU obo Dube and Others (2024) 35 SALLR 116 (LAC), confirmed important principles relating to the formulation of traditional charge sheets, determining the
fairness of a dismissal, the interpretation of a charge sheet and the reason(s) relied upon by the employer to justify the dismissal of an employee.