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On the one hand, substantive unfairness, in broad strokes, suggests that an employee who should not have been dismissed, had been dismissed.
The legislature had chosen to express substantive fairness with reference to the employee’s misconduct or incapacity and the operational requirements of the employer.
The move had fatal and disastrous consequences as it not only contravened national and international law, but also proved cruel and inhumane.
The record shows 94 lives were lost, families have been severely traumatised and a healthcare support system regardless of whether it was the most ideal or not was shaken to its knees.
This fascinating interface between procedural and substantive fairness is explored in detail in provides a detailed and comprehensive analysis of retrenchment law in South Africa and covers complex issues such as bumping and timing periods in the case of large-scale retrenchments. The Court ruled that a horse-riding instructor’s dismissal from employment for HIV-positivity was…
The book provides new, critical insight into the interplay between case law and legislative developments and examines the meaning of the term ‘operational requirements’ with extensive reference to case law and use of creative examples and hypotheticals. As South Africa took time to celebrate its annual human rights day on March 21, this year (2017) the deaths of the 94 patients in Gauteng Province in a space of under a year should not be forgotten.
This implies (somewhat counterintuitively) that the absence of meaningful consultation on selection criteria does not per se imply that the selection criteria used were not fair and objective and that the retrenchment was substantively unfair.
In other words, an employer who does not consult on selection criteria, but still uses criteria that somehow are fair and objective, will be off the hook in terms of substantive fairness, but will be in trouble as far as procedural fairness is concerned. candidate with the University of Pretoria and Executive Director of Nyale Institute for Sexual and Reproductive Health Governance in Malawi, for composing and/or editing summaries of 54 recent African court decisions for Gary Shane Allpass v Mooikloof Estates (Pty) Ltd. JS178/09, a Labour Court of South Africa upheld the rights to equality and non-discrimination of HIV-positive persons in the workplace.
It is available from Lexis Nexis online bookstore at https://store.za/products/retrenchment-law-in-south-africa-sku ZASKUPG2174 Many thanks to Godfrey Kangaude, LL. The implementation process was poorly planned, rapidly executed and chaotic.While it is perhaps easier to do so in the case of misconduct and incapacity, the lines between the two forms of fairness can sometimes be very blurred, particularly in the case of retrenchment.