Is South African Labour Law on operational requirements dismissals unduly onerous for employers?
Authors Emma Levy
Affiliations: CCMA accredited bargaining council panellist
Source: Industrial Law Journal, Volume 37 Issue 3, 2016, p. 1552 – 1573
This article interrogates the view that South Africa’s legislation for dismissal based on operational requirements is unduly onerous for employers. It establishes that the obligation to justify collective dismissal in the Labour Relations Act is an internationally accepted practice and that 45 countries listed in the ILO Termination of Employment Digest have mandatory consultation requirements for retrenchment. The South African consultation procedure’s suitability for small business is evaluated and the merits of selective application adopted in some jurisdictions analysed in depth. Innovative alternatives to avoid or minimise the number of dismissals found in some countries are discussed, and national measures to mitigate the adverse effects of such dismissals, such as those for rehiring, are compared with other jurisdictions. The comparative flexibility of selection criteria under the LRA is highlighted and 29 jurisdictions are identified that award higher severance pay for retrenched employees than South Africa. Finally, the requirement of notification of the relevant authorities is outlined, which is an obligation in many countries but not a requirement in South Africa except in the case of mine workers. The article concludes that although South Africa’s law for collective dismissal may be challenging and time-consuming for employers, it is far less onerous than legislation in many other parts of the world.