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MRL3702 PORTFOLIO MEMO SEPTEMBER 2021 UNISA SUPER SEMESTER LABOUR LAW
MRL3702 Sept/Nov 2021 Portfolio exam
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By: zwanesanelie • 1 year ago
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Question 11.1
a) The ground of dismissal in question would be for “Operational requirements”. A
dismissal based on operational reasons is regarded as a ‘no-fault’ dismissal,
because the termination does not result from the actions or fault of the employee.
The terms ‘operational requirements’ is defined in the LRA and the definition
distinguished four broad categories of operational requirements:
economic needs
technological needs
structural needs, and
similar needs
An employer’s economic needs relate to the financial management of the
enterprise including financial difficulties experienced by the business as a result of
changes in the market, a decrease in production itself, in government subsidies or
the cost implications of compliance with the BCEA.
Kotze v Rebel Discount Liquor Group (Pty) Ltd
It was stated that the court should not ‘second guess’ the employer’s commercial
reasons for taking a specific decision to retrench employees. In later decisions the
court adopted a stricter approach and held that the employer’s version will not
merely be accepted on face value. Rather, the court itself should determine
whether retrenchment had a reasonable basis and the commercial rationale. In a
later judgment, the court held that the retrenchment should remain a matter of last
resort.
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