Operational requirements: unjustifiable reason for dismissal

1 Comment

1. 

   GilesFiles on October 9, 2015 at 3:18 pm

   Prof Darcy du Toit comments on this judgment in the latest Weekly Comment Justifying dismissal on operational grounds published by LexisNexis on IR Network [subscription required]. Strictly speaking the LCA judgment is unreported but can be accessed via [2015] JOL 33457 (LAC).

   It is useful to measure this judgment against that of the Labour Appeal Court in NUM & Linden v Black Mountain Mining (Pty) Ltd (Case no: CA22/2012, 10 December 2014)2 where the employer’s decision to dismiss an employee for operational reasons was held to be unfair, in particular because the employer did not explain why the dismissal was necessary (“a measure of last resort”) and admitted that it had failed to consider the alternatives which he had proposed. The court summarised the correct approach as follows:

   “A court in considering a dismissal for operational requirements is obliged to ask not only whether there was a bona fide commercial rationale to begin with, but also whether the reason for the dismissal was a fair one. An employer must establish on a balance of probabilities that the reason for the dismissal was fair” (para 43).

   Although the court in Hassim v Chamber of Mines did not refer to this (unreported) judgment, its approach was consistent with that of the LAC. Dismissal was necessary in that Ms Hassim’s position disappeared. Furthermore, the employer had considered the alternative (appointing her as Junior Accountant) which she had in mind, but its decision not to appoint her could not be faulted. These facts distinguish the case from Black Mountain and explain the different outcome.