Abstract:
This study examines the relationship between automatic unfair dismissal under Section
187(1)(c) of the Labour Relations Act,1 and dismissal for operational reasons under
Section 189 of the LRA. Dismissal is automatically unfair if the reason for dismissal is a
refusal by employees to accept a demand in respect of any matter of mutual interest
between them and their employer and this is according to Section 187(1)(c) of the LRA
Employees have the right to refuse the new terms and conditions of employment, and
they cannot be dismissed for doing so.
However, if the employer’s business is in decline and thus causes financially loss to the
employer, the employer may change the operation of the employment in order to
sustain the employment. The employer must initiate consultation process (collective
bargaining) with the employees' representatives in order to reach an agreement that
protects both the employer's and the employees' interests. To avoid retrenchment, the
employer and the employees’ representatives through collective bargaining have to
agree to new conditions of the employment and should the parties agree on the new
conditions of the employment this will automatically set aside the terms and conditions
of the employment contract.
In K Ngubane v NTE Limited,
2
“the court observed and noted that the requirement is
that the old contract of employment must be terminated with the purpose of inducing
acceptance of a demand or proposal, or the employer can simultaneously terminate the
contract of employment and give the employee his/her final offer”.
Before resorting to dismissal, the employer must exhaust all the alternatives available to
him and this could include, inter alia, change of job descriptions since this will not have
adverse financial consequences for the workers. If the employees refuse to accept the
demands of the employer that were aimed to avoid retrenchments for operational
reasons, the employer may dismiss them in accordance with the provisions of section
