Abstract
LL.M
The provisions of South Africa’s law on dismissal based on operational requirements are frequently relied on by employers who dismiss employees to further various objectives. Against this background, this dissertation critically analyses the law providing for employers to rely on their operational requirements as a basis for fair dismissal, and the legal principles on selecting employees for dismissal based on operational requirements. As part of this analysis, the approach in South Africa is compared with the approach in Germany, the United Kingdom and Australia.
The analysis is based on a critical literature study that includes a consideration of the relevant legislation, treaties, conventions, directives, case law, recommendations, textbooks, journal articles and statistical sources.
This dissertation draws broad conclusions regarding the contents, effects and shortcomings of the aspects of South African law on dismissal based on operational requirements that fall within its scope.
In broad terms, this dissertation finds that the conceptual model underpinning the South African regime on dismissal based on operational requirements, is intrinsically sound, but that certain aspects require reform. It finds further that South Africa’s law on dismissal based on operational requirements generally provides employees with a relatively high degree of employment security, and severely limits managerial prerogative.
This dissertation concludes that the primary areas requiring reform relate to the test for substantive fairness that does not include a proportionality analysis to weigh up the competing interests of the employer and the employee(s), and the requirements regarding selection criteria that fail to include consideration of the impact of dismissal on individual employees and their dependents. This dissertation makes proposals for reform in these areas.