Abstract
The main objective of this article is to analyse the issue of onus emanating from the enforcement of unilateral changes to conditions of employment. At the heart of the controversy that has faced the Labour Appeal Court was how to interpret dismissals that appear to be based on operational requirements, and yet at the same time, such dismissals also appear to have the effect of compelling an employee to accept a demand in respect of a matter of mutual interest between the employer and the employee.
 
 The core section in the Labour Relations Act 66 of 1995 relating to disputes of this nature is section 187(1)(c) of the Act, and the central enquiry to such disputes is whether they are automatically unfair or operationally justifiable. The fine line that determines whether a dismissal is acceptable or not merits an analysis of the overall onus that faces an employer and employee. This analysis is the focus of the article, which deals predominantly with procedural issues. The issue relating to the promotion of collective bargaining will be assessed against the right to dismiss, based on an analysis of the situation in South Africa, and a brief comparison with the situations in the United Kingdom and Canada. Thereafter, recommendations are made to the South African legislature.
Highlights
The main objective of this article is to analyse the issue of onus emanating from the enforcement of unilateral changes to conditions of employment
At the heart of the controversy that faced the Labour Appeal Court[1] was how to interpret dismissals that appear to be based on operational requirements, and yet at the same time, such dismissals appear to have the effect of compelling an employee to accept a demand in respect of a matter of mutual interest between the employer and the employee.[2]
Where the employer overcomes this onus of establishing that the dismissal was not automatically unfair, the employer will have the further onus, in terms of section 188(1)(a)(ii), of proving that the dismissal was effected for a fair reason, based on the operational requirements of the employer
Summary
The main objective of this article is to analyse the issue of onus emanating from the enforcement of unilateral changes to conditions of employment. Where the employer overcomes this onus of establishing that the dismissal was not automatically unfair, the employer will have the further onus, in terms of section 188(1)(a)(ii), of proving that the dismissal was effected for a fair reason, based on the operational requirements of the employer. This will entail establishing substantive fairness in terms of section 189. It must be borne in mind that in terms of section 188(1)(b), procedural fairness must be established by the employer
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