Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service. The selection criteria that will be applied and. Did the employer consider suitable alternative employment as an alternative to dismissal? For this reason a more prescriptive procedure is outlined in the LRA in order to secure employment as far as possible. Employers must ensure that they identify a fair selection criteria and apply it fairly to the employees in the redundancy pool. The requirement to consult on selection criteria stems from section 189(2)(b) of the LRA. Redundancy selection criteria that employers commonly use are: measurable levels of skills and competencies; assessments of past performance; and disciplinary record. The cases of Boucher –v- Irish Productivity Centre (1994) ELR 2005, Mulligan –v- J2 Global (Ireland) Ltd (UD/993/2009) and JVC Europe v Panasi (2011) IEHC 279 were also considered by the Workplace Relations Commission. 2019 GOLEGAL ALL RIGHTS RESERVED | WEBSITE POWERED BY. By Bradley Workman-Davies, Director and Megan Livingstone, Candidate Attorney, Werksmans Attorneys In South Africa an employee’s services can be terminated as a result of his/her misconduct or incapacity or as a result of the employer’s operational requirements. As explained above, employers should use objective evidence to justify their decision. It is important to consider three phases to the selection process for redundancy: ‘The pool’ refers to the group of employees from which the employer will select those who are to be made redundant. It is good practice for employers to consult on the selection criteria and scoring process with those who are at risk of redundancy. Posted on 4th September 2020. If it is used as a part of a matrix, it is seen to be objectively justifiable on the grounds of rewarding loyalty, experience and a stable workforce. When deciding on the pool, employers have wide discretion as there are no fixed rules about how the pool should be defined. In the absence of an agreement between the consulting parties on the selection criteria, the employer must apply a fair and objective criteria which does not have the effect of discriminating against a particular group of employees. 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GoLegal is a leading industry news and information portal for the South African legal sector, catering to attorneys, corporate counsel, legal scholars, policy makers and other corporate and legal interest groups. In South Africa an employee’s services can be terminated as a result of his/her misconduct or incapacity or as a result of the employer’s operational requirements. Appraisals may not have been carried out regularly or at all, Those on maternity leave or sick leave may not have recent appraisal records, Appraisals may have been carried out by different managers who may not have the same approach. In terms of substantive fairness, there must be a fair reason for the retrenchment, relating to the employer’s operational requirements. Selection decisions are among the most cited EEO complaints. 5. Selection on subjective grounds may result in the subsequent dismissal being unfair. The Performance and ability criteria carries some risk as well. The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection. Employers must choose a clearly define criteria and a system of weighting that relates to skill and knowledge required for its current and future needs. The LRA in section 189(2) prescribes the consideration of certain factors during the consultation process, one of which is “the method for selecting the employees to be dismissed”. In this blog we focus on how an employer can ensure it follows a fair redundancy process by applying a fair selection criteria. To avoid claims for unfair dismissal and other related claims, employers must ensure they follow proper and fair procedure and ensure they have the correct steps in place before they even consider making an employee redundant. The issue of redundancy is unfortunately becoming more topical in light of #covid-19. by Wendy Doyle Solicitor | Jun 5, 2020 | latest news, Litigation, Redundancy, Unfair Dismissal, Workplace Relations Commission Decisions April 2020. Fair selection criteria in retrenchments – can your employer make you re-apply for your job? Also, you should not depart from a previously established procedure, unless you have good reason for doing so. To prevent an unfair dismissal claim, the retrenchment must be substantively and procedurally fair. It is important that employers refer to written records, such as appraisals and not just rely on the personal opinion of a particular manager. In considering the choice of pool employers must be careful, and should consider the following factors: Also, there is nothing inherently unlawful in having a ‘pool’ of one. An employer must be able to show that there is a reasonable and non-discriminatory basis in their decision making. Employers have a wide discretion over the criteria they can use. Employers should draw up fair, relevant, transparent and non-discriminatory selection criteria. Fair selection in recruitment must be objective, consistent and non-discriminatory resulting in the best person being selected for the job. Employees should be given a chance to challenge the decision and scores given to them. Was a fair procedure been followed, in particular have any groups been disadvantaged/discriminated against? How to ensure a fair selection criteria is applied in a redundancy process. You must ensure you have clear selection criteria in place and be able to ensure you can justify why you selected one employee over another. Was the redundancy pool correctly identified? Ordinarily, any retrenchment process which proposes that employees apply for their jobs, or apply for a limited number of jobs which are available in the restructured organisation, could be unfair. A dismissal based on the employer’s operational requirements is as a result of the employer’s business circumstances rather than an act or omission on the part of an employee and as a consequence is regarded as a “no fault” dismissal. Employers, if you have two or more employees performing the same or similar role and you are considering making redundancies, it is not simply a case of “picking and choosing” which employee you wish to make redundant. The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment. Promote Legal Conferences, Events and Seminars. Such a criteria should be used with caution. Home » Labour Law » Fair selection criteria in retrenchments – Can your employer make you re-apply for your job? If you require legal advice on how to manage the redundancy process fairly, please call us on 0808 231 6369 or request a call back online at your convenience. But in recent years it has fallen from favour and should not be used as a dominant criterion. When using this criteria, employers should be mindful of the following issues: Employers will need to think carefully about what methods to use to fairly and objectively assess the performance and ability of those at risk. Accordingly, I have concluded that the claimant was unfairly selected for redundancy and consequently I am upholding his complaint of unfair dismissal”. As an overview, when considering whether an employee has a claim for unfair dismissal, arising out of a redundancy , the following will be relevant: If a fair process is not followed, employees with two years’ service may be able to sue for unfair dismissal. SA Breweries (Pty) Ltd v Louw (2018) 39 ILJ 189, Voluntary retrenchment may no longer be an easy sell. A fair selection process is important because it contributes to a business’ bottom line by adding credibility to the selecting official’s decisions. In SA Breweries (Pty) Ltd v Louw (2018) 39 ILJ 189 (LAC) the court found that there was procedural unfairness when the employer took into account objectively unfair selection criteria, by using the past performance ratings of the candidates interviewed to fill the newly created post of area manager. How to ensure a fair selection criteria is applied in a redundancy process, Hodge Jones & Allen Solicitors 180 North Gower Street London NW1 2NB. Resigning with immediate effect in the face of a disciplinary sanction to be imposed – A classic case of dodging the bullet, or not! By Bradley Davies Topics Labour Law. Employers should inform the affected employee of their individual score and how the scores were arrived at. This will especially be the case if the employer tries to take irrelevant factors into account in the selection and recruitment process, such as past disciplinary or performance issues, or applies a subjective assessment of the employee’s suitability for the role. You could be held vicariously liable for an employee’s abuse of power. Was there a genuine redundancy situation? If employees are selected in terms of unfair criteria their dismissals with be considered unfair. Tax deductions for home expenses - Working from home, How the Cannabis laws impact your business. Employers must consider if there are any absences which can be discounted, these could include: The Length of Service criteria should not be used as the only criterion as it could give rise to claims for indirect sex or age discrimination. 4. Retrenchments/redundancy falls within the ambit of section 189 and 189A. Employers should check the accuracy of the information it holds and consider the reasons for absences. An employer should be able to show that it can justify its decision to place people in the pool as well as justify its decision to exclude people from the pool.

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