The main focus of the study is to examine the role of the courts in mitigating the operational requirements for layoffs and consider possible interventions that could be applied to mitigate their adverse effects. It is well known that the significant increase in layoffs due to operational requirements can be attributed to the rise in technology adoption in the workplace. A major drawback in the existing literature is that most studies have neglected to examine the role of the courts in mitigating layoffs, especially in the banking sector.
However, without a change in the regulatory framework, the role of the courts remains limited.
INTRODUCTION
- Global context of the banking industry
- Problem Statement
- Objectives of the study
- Research methodology
- Significance of the study
- Outline of chapters
Providing an analysis of the effectiveness of provisions governing operational requirements and whether they have been successful in mitigating emissions from operational requirements. The outlined objectives of the study will be achieved using a non-interactive method of data collection. It is one of the measures that have been taken to curb the spread of the virus.
The purpose of the chapter is to identify interventions that can be used in South Africa.
REGULATORY FRAMEWORK FOR RETRENCHMENTS
- Introduction
- The meaning of operational requirements in the context of Labour Relations Act
- Economic needs
- Technological
- Structural reasons
- Similar needs
- Substantive fairness
- Statutory Development of Substantive fairness
- Procedural fairness
- International labour standards in South Africa in the context of operational requirements in
- Concluding remarks
As a general rule, economic reasons are those related to the financial management of the enterprise. Structural reasons relate to the dismissal of posts as a result of a restructuring of the employer's company.72. Although this appears to have been the position of the courts more than 2 decades ago, their position has remained unchanged.
In Busani Khanyile & others v Air Chefs (Pty) Ltd134 the employer restructured the company's operations by outsourcing to a cleaning service. Courts have always used different standards to judge the substantive fairness of an employer's decision to dismiss. 151. The test of substantive fairness applied by the courts at this stage mainly concerned the existence of a bona fide reason on the part of the employer for the dismissal.
In 1993, however, there was a subtle change in the court's interpretation of the substantive fairness test. After 1995, the courts took a strict approach in their interpretation of the employer's decision to cut spending.159 The yardstick for determining the substantive fairness of. The approach in this case reflects concerns about the reasonableness of the rationale for cutting, not rationality.
F]endibility towards the employer is expressed by recognizing the ultimate competence of the employer to make a final decision whether to lay off or not. The court's function in reviewing the consultation process is not to second-guess the commercial or business effectiveness of the employer's decision (a matter which it is generally not qualified to do, in different settings every day). The historical development discussed has reflected how the position of the courts has changed in the regulation of dismissals.
The analysis of the substantive requirements showed that the courts were concerned with the employer's need to make cutbacks, which must be fully within the legal definition as referred to in Article 213 and Schedule 8 of the Code of Good Practice.
RETRENCHMENTS IN THE BANKING SECTOR: AN ANALYSIS OF CASE
- Introduction
- Lulu Thema V ABSA Bank Limited
- SASBO v Standard Bank Of South Africa
- SASBO V Nedbank Limited
- Lisa Joy Crowhurst v ABSA Bank
- Standard Bank Limited of South Africa v Angeli Letsoalo
- SASBO v ABSA Bank
- Analysis of the case law findings
- Appropriate measures to minimise dismissals
- Concluding remarks
In this context, continued employment in an appropriate alternative position is the primary purpose of the exercise. The court does not adequately fulfill its responsibility to assess not only the reasonableness of the offer, but also the reasonableness of the refusal.218 The court's reluctance to question the employer's decision to cut costs is a generally accepted practice.219 The correct approach is to determine whether the purpose of the section (the occurrence of a joint consensus-seeking process) has been achieved.240.
Suspicion is determined by taking into account the reasonableness of the offer of alternative employment and the reasonableness of the employee's refusal. Although it is clear that the union played a role in preventing the consultation phase300 from proceeding, it was reasonable to expect that the employer would consult with individual employees. The department will prepare an analysis by examining whether the requirements of Article 189 have been met and whether the court's interpretation of the relevant measures is in accordance with the intended purpose of the provision of Article 189.
The cases cited above in the banking industry are a testament to the claim that courts are no longer inclined to question the rationale behind an employer's decision to retrench, and are instead preoccupied with assessing the substantive and procedural requirements of discharges of operational requirements. Case law appears to be replete with incidents where the court cautions itself against "second-guessing the commercial or business efficiency of the employer's final decision".305. While it seems logical that the court is not competent enough to judge the appropriateness of business decisions made by employers, they must exercise this managerial prerogative fairly. 307.
While the court recognized that the applicant was successful in meeting the onus of proving the unfairness of the dismissal and ordered compensation,309 the decision appears to be unfair given the circumstances. The discussion of fairness in operational requirements layoffs would not be complete without mentioning the main objectives of the LRA. The next section will achieve this by examining the implications of s 189 in the interpretation of the right to fair labor practices.
The LRA gives substance to the constitutional right to fair labor practices as referred to in Article 23(1) of the Constitution.
BEST PRACTICES TO MITIGATE THE OPERATIONAL REQUIREMENTS
- Introduction
- Developments in collective bargaining
- Importance of Collective Bargaining
- Redeployment
- The position in South Africa
- Developments and legal reform in Australia
- Training and development
- Conclusion
Collective bargaining has been identified as a key instrument in dealing with company restructuring, retraining and wage adjustments.342 Some studies have confirmed that most unions prefer to have operational requirements dismissal procedures laid down in collective agreements.343 This is because it gives them power and control over the content of the guidelines.344 Similarly, France has widely accepted collective bargaining, not only as a mechanism for regulating wages, benefits and working conditions, but rather encouraged as a means to. 343 Emmenegger, Patrick 'Maximizing Institutional Control: Union Power and Dismissal Protection in Western Europe in the First Half of the Twentieth Century Comparative Politics 4 at 399-418. This type of collective bargaining is not encouraged because it does not level the terms of the employment relationship.
Later in France, the Parliament approved a reform that allows the social partners such as employers and trade unions to enter into an agreement regulating wage deductions, deductions for overtime in exchange for job security.356 The dismissal of employees based on operational requirements in France is covered by article L1233- 3 of the Labor Code, which stipulates that economic reasons can vary from economic difficulties that the employer may face or the implementation of technology that may result in organizational restructuring. Dismissal for economic reasons of an employee can only take place when all training and adaptation efforts have been carried out and the reclassification of the person in question cannot be carried out on the vacant jobs, located on the national territory of the company or other companies the group, of which the company is a part, and of which the organization, activities or place of business ensures rotation of all or parts of the staff.366. In this case, it is incumbent on the court judges to be satisfied that an effort has been made to reclassify the affected employees.
In Australia, the Fair Work Act of 2009 was promulgated and one of the pressing concerns it addresses involves requiring employers to find alternative positions for redundant workers.371. In Ulan Coal Mines v Honeysett375 the Full Panel held that the main question raised by s 389(2) is whether the reinstatement was reasonable at the time of the dismissal. The question requires an assessment of relevant factors such as qualifications, skills, remuneration, location, residence of the employee, experience and nature of work.376 Answering this question, it was stated that.
372 See section 389 of the Fair Work Act 2009; Kelsey Davis A critical analysis of real-life cases of redundancy under the Fair Work Act 2009 (Thesis, Australian National University, 2014). Skills development in the United States is regulated by the Workforce Investment Act of 1998.387 The.
CONCLUSION, KEY FINDINGS AND RECOMMENDATIONS
- Introduction
- Study overview
- Statutory findings
- Banking sector case law findings
- Key findings in best practices
- Recommendations
- Final remarks
A worrying finding is how courts have accepted the provision of alternative jobs without further review as a way to mitigate layoffs due to operational requirements. The principles from the judgments discussed in Chapter 3 reflect the multitude of problems that can arise when the fairness of dismissal due to operational requirements is left to the employer.408 Secondly, the provision of alternative jobs has been largely used as a 'trick', that is to say , because this practice occurs in circumstances where the employer is told to apply for a position for which he does not meet the conditions.409. At the same time, it is recommended that S 189 should oblige employers and employees to collective bargaining and to determine ways to solve layoffs due to operational requirements.
As stated earlier, the courts have established the rule that in industry requirements dismissal driven by the desire to make a profit, there is no need for employers to make hasty decisions because time is not a critical factor. After examining the historical development of substantive fairness and the inadequacy of the LRA to cast a wider net in the protection of employees dismissed on the basis of operational requirements, it is recommended that an obligation should be placed on employers to provide training and skills development offer. The study's intention to interrogate the provisions of the LRA, how the courts have dealt with operational requirements dismissals, and in particular s 189 reflected that the current legislative framework does not provide sufficient protection for job security.
Davy Rammila Redundancy for operational requirements in South Africa: Redesigning the current regulatory framework for the fourth industrial age (LLM thesis, University of Johannesburg, 2019). Newaj K and S van Eck 'Unfair and Operational Requirements Dismissals: Making Sense of the 2014 Amendments ELJ 1. Paul Sakwe Masumbe Faultless Dismissal: Assessing the Substantive Fairness of Operational Requirements (LLM thesis, University of Western Cape, 2013).
Riaz Itzin's operational requirements as a fair reason for redundancies in South Africa (LLM thesis, University of Johannesburg, 2011). Tina Hokwana Substantive fairness in dismissals based on operational requirements (LLM, thesis, Nelson Mandela University, 2018).
