Dismissing staff who fail to just accept a change to phrases and situations of employment | Lexology

Dismissing employees who fail to accept a change to terms and conditions of employment | Lexology

Can an employer dismiss staff who refuse to just accept a change to their phrases and situations of employment? This query has been debated for a minimum of twenty years and considerations the interpretation of part 187 (1) (c) of the South African Labour Relations Act, 1995 (“LRA”), as amended over time. This part gives {that a} dismissal can be robotically unfair if the explanation for dismissal is “a refusal by staff to just accept a requirement in respect of any matter of mutual curiosity between them and the employer.”

In answering this query, the Labour Enchantment Court docket (“LAC”), in a lot of choices, distinguished between what have been described as “conditional dismissals” and “ultimate dismissals”. A conditional dismissal passed off if an employer dismissed staff in an try and compel them to conform to a change to phrases and situations of employment. If this occurred, it might represent an robotically unfair dismissal. Nevertheless, if the employer failed in its try to influence staff to just accept the change after which dismissed the workers on the premise of its operational necessities in order to have the ability, for instance, to make use of different individuals who have been prepared to work the brand new shift system, this might be a ultimate dismissal and wouldn’t represent an robotically unfair dismissal. It is because the employer was not attempting to compel the workers to conform to the brand new shift system. Nevertheless, even when the dismissal was not robotically unfair, it might nonetheless be an unfair dismissal if the change couldn’t be justified on operational grounds.

A current South African Constitutional Court docket now handled this query.


Aveng Trident Metal (Pty) Ltd skilled a downturn in gross sales and elevated prices. It gave discover to the Nationwide Union of Metallic Staff (“NUMSA”) of potential retrenchments. It proposed that the workforce be restructured and that job descriptions be redesigned. The session course of proceeded and this resulted in some 253 staff taking voluntary severance advantages, and 4 staff being retrenched.

Thereafter, an interim settlement was concluded between Aveng and NUMSA by way of which NUMSA agreed to work in accordance with Aveng’s redesigned job descriptions till such time as a 5 grade job construction proposed by NUMSA may very well be finalised and applied. Nevertheless, NUMSA terminated the settlement earlier than the job grading system was applied.

Throughout subsequent negotiations, NUMSA indicated that it might solely work in accordance with Aveng’s system if its members have been granted a wage enhance. Aveng said that it couldn’t incur the prices of the wage enhance and indicated that it might proceed to implement the redesigned job descriptions to handle its operational necessities. NUMSA members got the chance to proceed performing the redesigned jobs however have been informed that, in the event that they rejected this provide, they’d be retrenched.

Roughly 733 staff rejected the provide and have been dismissed on the premise of Aveng’s operational necessities. NUMSA referred a dispute to the Labour Court docket and argued that the dismissals have been robotically unfair and that the workers had been dismissed as a result of that they had refused to just accept Aveng’s demand that they work in accordance with the redesigned job descriptions. NUMSA and its members have been unsuccessful in each the Labour Court docket and the Labour Enchantment Court docket and appealed to the Constitutional Court docket.

The Constitutional Court docket judgment

In Nationwide Union of Metallic Staff of South Africa and Others v Aveng Trident Metal (a division of Aveng Africa (Pty) Ltd) and One other, the Constitutional Court docket’s resolution consisted of the three judgments.

The primary judgment, penned by Mathopo AJ, rejected the notion of ultimate and conditional dismissals. It mentioned that what a court docket has to find out was what the explanation for the dismissal was – was it the employer’s operational necessities or was it as a result of the worker had refused to just accept an employer demand? This was merely a factual enquiry. The second and the third judgments agreed that what needed to be decided was what the true motive for the dismissal was.

This strategy would trigger comparatively few issues for employers within the context of retrenchments or the restructuring of the workforce. If an employer can present that it has a real operational must retrench or restructure, and if the employer affords various employment as a way of avoiding or minimising dismissals, however the staff refuse this provide, the operational must dismiss nonetheless exists.

An necessary query that needs to be requested is whether or not part 187(1)(c) can be utilized in the identical method within the context of collective bargaining?

For instance, an employer could determine that its manufacturing course of could be extra environment friendly and its earnings would enhance if a contractually agreed shift system was changed with a brand new shift system in circumstances the place there isn’t a must retrench. The employer then enters into negotiations with the recognised commerce unions with a view to search settlement to this modification. The unions refuse to conform to the change of the shift system except they’re accorded a major wage enhance.

One possibility for the employer could be to lock-out the related staff in an try and compel them to just accept the change. However would the Aveng resolution give the employer the choice to dismiss the workers with a view to substitute them with new staff who could be ready to work the brand new system on the premise of its operational necessities? If this have been to be accepted, it may very well be argued that this subverts the scheme of the LRA and the collective bargaining course of. The scheme of the LRA envisages that, if settlement can’t be reached on “curiosity disputes”, the events could resort to a strike or lock-out to attempt to implement their calls for. Would a court docket, on this context, settle for that an employer has this extra “weapon” to implement its demand? The reply to this can be that the dismissal is probably not robotically unfair however {that a} court docket would nonetheless be capable to examine whether or not the dismissal was honest and the employer would nonetheless need to adjust to the necessities for a good dismissal primarily based on its operational necessities.

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