A judicial interpretation of Sections 189A (13) and (18) of the LRA

Abstract

The Labour Relations Act (LRA) allows for the termination of employees’ contracts of employment for reasons related to operational. However, both the procedural and substantive fairness of such dismissals must be done fairly. The study aims at evaluating the implication that section 189A of the LRA has on large-scale employees when challenging procedural fairness disputes and subsequently recommend improvements. Section 189A was introduced to deal with disputes emanating from large-scale retrenchment. However, the section separates disputes relating to procedural fairness from that of substantive fairness. In this case, the employees are only allowed to challenge the procedural unfairness of their dismissals using section 189A (13) and substantive fairness using section 191 (5) of the LRA. This process is different as compared to the other types of dismissal, which is misconduct and incapacity. The separation of procedural and substantive fairness disputes has caused lots of litigation for both employers and employees. This research explores the legislative framework governing large-scale retrenchment. Furthermore, the study analyses cases that were brought to the Courts challenging procedural unfairness of dismissals based on operational requirements.