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Labour Law in a Nutshell June 2019

REFUSAL TO CHANGED CONDITIONS: Can an employer dismiss employees for refusing to accept changes in working conditions? 

Yes – said the labour court in Numsa vs Trident Steel[1].

The company needed to restructure its operations to survive. It redefined job descriptions and its workforce by about 500 mainly through VSP’s in consultation with Numsa. However, it still needed to reduce the workforce further. It initiated a S189 consultation process and offered the new positions to employees. 71 employees accepted the offer, but 733 declined and were retrenched.

The Union did not challenge the Company’s need to restructure or the new job descriptions. However, it disputed that the employees were dismissed for operational reasons. They claimed they were dismissed for refusing to accept the Company’s demand to sign new contracts of employment. This they said was automatically unfair in terms of s 187(1) (c) of the LRA. Trident argued that the dismissals were for operational reasons and were fair in terms of s189.

The Labour Court first had to decide what the real reason for the dismissal was. The purpose was to determine whether the dismissals were for operational requirements or if they qualified as an automatically unfair dismissal in terms of s187 (1) (c).

Three elements must exist for the dismissals to qualify as an automatically unfair dismissal. –

  1. There must be clear evidence of a demand,
  2. There must be a refusal to agree to that demand, and
  3. The dismissal, objectively viewed, must be as a result of that refusal.

The Labour Court found in the Trident Steel case that these elements did not exist. The real reason for the dismissals was for operational reasons which made the dismissals substantively fair.

TIP:  It is only when all three elements exist – firstly, that there is clear evidence of a demand, secondly a refusal to agree to that demand, and thirdly that the ensuing dismissal, objectively viewed, was as a result of that refusal, that this would qualify as an automatically unfair dismissal under s187(1)(c) of the LRA.

[1] NUMSA obo members v Aveng Trident Steel (A Division of Aveng Africa (Pty) Ltd) (JS596/15) [2017] ZALCJHB (13 December 2017)Source: Worklaw Newsflash June 2019

 

Source: Deale Attorneys

Patrick Deale
Patrick Deale
Patrick has worked in law and alternative dispute resolution for 25 years in a wide range of industries and sectors. As a senior legal executive for a listed company, he gained first-hand experience of the issues business managers and employees deal with day-to-day.

Patrick co-founded Tokiso Dispute Settlement (Pty) Ltd in 2000, the largest private dispute resolution agency in the country, where he was full-time CEO for six years. He is a highly skilled and experienced labour negotiator, mediator, arbitrator and facilitator. He is a commercial mediator, coach and assessor, accredited by CEDA (UK). He also serves as Acting Judge of the Labour Court.

He is the co-author of the Labour Relations Handbook, published by Juta, and has been a regular host of the Labour Line on Talk Radio 702. Patrick established Deale Attorneys to focus on the opportunity to improve and build successful South African business relationships, in partnership with business clients.


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