DISMISSALS WITHIN THE CONTEXT OF COLLECTIVE BARGAINING

Abstract

Competitive forces in the market force employers to change the way they operate their businesses. The changes that employers have to make often demand an alteration of the employees’ terms and conditions of employment. By law employers are not permitted to effect changes to the employees’ terms and conditions of employment unilaterally. They have to obtain the consent of the affected employees. This is where collective bargaining fits in. The employer has to negotiate with the employees. One way in which, through the process of collective bargaining, an employer can exert pressure on the employees to accept the changes is to effect a lock-out.Under the Labour Relations Act 28 of 1956 within the context of a lock-out, an employer was permitted to use conditional dismissal as a bargaining weapon. This conditional dismissal had to be coupled with an offer of re-employment should the employees accept an employer’s demand. In essence, the lock-out had a bite in the form of the conditional dismissal. This made the lock-out quite effective.The 1995 Labour Relations Act prohibits in no uncertain terms the use of a dismissal as a means of compelling employees to accept an employer’s demand in any matter of mutual interest. Within the collective bargaining context, dismissal is not a legitimate option. The employer only has the lock-out as a tool of compulsion. The definition of a lock-out in terms of this Act does not accommodate the use of dismissal. This makes the lock-out option to be less potent than it was under the 1956 Labour Relations Act. However, employers are permitted to dismiss on operational grounds, provided that they follow a fair procedure. Terms and conditions of employment greatly feature in the operational requirements of a business. If the employees’ terms and conditions of employment are not responsive to the operational requirements of the business and they are unwilling to accept changes to those terms, the employer has the right todismiss them. The employer will not be dismissing the employees as a way of inducing them to accept the changes. He will instead be dismissing them on the basis of operational requirements. The question that then arises is how should a dismissal that is intended to compel employees to accept an employers demand (falling within section 187(1)(c) of the 1995 Labour Relations Act) be distinguished from a dismissal that is genuinely based on operational requirements as contemplated by section 188(1)(a)(ii). The question arises whether the fact that section 187(1)(c) explicitly prohibits the use of dismissal within the context of collective bargaining gives rise to some tension with section 188(1)(a)(ii) which categorically gives employers the right to dismiss on operational grounds.