Dismissal in accordance with the Labour Relations Act will be deemed automatically unfair if the employer dismisses the employee due to:
- the employee exercising his/her right on freedom of association, or
- the employee’s refusal to accept a claim of common interest between the employer and the employee. An amendment to the employee’s conditions of employment will qualify as a claim of common interest by the employer.
Amendments to conditions of employment are often required due to a change in the employer’s operational requirements. When the employment relationship is terminated due to these operational requirements, it must be preceded by a retrenchment procedure.
Retrenchment is a no-fault-dismissal as the employee did nothing wrong and the dismissal is purely based on the operational requirements. During the retrenchment process, it is the duty of the employer and the employee to consider all other alternatives to prevent dismissal.
What should employers know?
If the amendment to the conditions of employment is a fair and meaningful alternative to prevent the dismissal of employees, the employer and employee must consider this restructuring and amendment of conditions of employment. If the fair and meaningful alternative is rejected by the employee, the employer has the right to implement the restructuring and amendment of the conditions of employment due to operational requirements.
An employee that hereafter rejects the amended conditions of employment can be dismissed due to operational requirements of the employer. The dismissal will not be classified as an automatic unfair dismissal, but as dismissal due to operational requirements. The employer must be able to prove that a real operational need existed that required that amendment to the conditions of employment and that there was no reasonable alternative to dismissal. It is of utmost importance that the employer can also prove that a fair consultation process was followed.
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