Summary
Summary Topic 9
- Course
- Mercantile Law 311 (311)
- Institution
- Stellenbosch University (SUN)
Comprehensive summary of examinable material.
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Topic 9: Dismissal based on Operational Requirements. ... 29.1 Terminology ..................................................................... 2
9.2 Similar needs of the employer .......................................... 2
9.3 Substantive Fairness ........................................................ 2
Havemann v Secequip ........................................................ 3
9.4 Procedural Fairness (s189 of LRA) .................................. 3
9.5 Retrenchment: Small scale vs Large scale dismissal. ...... 5
, Topic 9: Dismissal based on Operational Requirements.
9.1 Terminology
• Definition: retrenchment
• Redundancy
o Dismissed for reasons that their role has become redundant.
o They are no longer required
o They become an economic or financial burden for the employer.
• Operational Requirements (s213 LRA)
o These are the economic, technological, structural and other needs of an
employer.
o Courts have set increasingly high standards for proving substantive
fairness in these cases:
▪ Economic needs
• Relates to an employer running into business problems
• They may dismiss on these grounds when they want to
rebuild or become more successful
▪ Technological needs:
• Where mechanisation takes place
• Will lead to redundancy of unskilled employees
▪ Structural needs
• The decision to outsource certain services
• Mergers occur and there is now a duplication of staff.
o No fault dismissal
9.2 Similar needs of the employer
•
9.3 Substantive Fairness
• The employer must prove
o 1. That the reason for dismissal falls within the definition of operational
requirements
o 2. That it is in fact the true reason.
• Courts scrutiny
o Initially very hands off
▪ The courts did not want to second-guess the employer
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