UP Law's Professor Stéfan van Eck and Dr Kamalesh Newaj cited by Constitutional Court

Posted on November 03, 2020

The Faculty of Law (UP Law) at the University of Pretoria (UP) s proud to announce that the Constitutional Court in the recent decision of National Union of Metal Workers of South Africa and Others v Aveng Trident Steel (a division of Aveng Africa (Pty) Ltd) and Another 2020 ZACC 23 referred to Dr Kamalesh Newaj and Prof Stéfan Van Eck's article 'Automatically Unfair and Operational Requirements Dismissals: Making Sense of the 2014 Amendments' (2016) 19 PER 1-30. 

Justice AJ Mathopo concurred with the test endorsed by the authors in establishing whether a dismissal constitutes an automatically unfair dismissal in terms of section 187(1)(c) of the Labour Relations Act or a dismissal for operational requirements.

The relevant excerpt from the judgment reads as follows:

'[69] See for example the following criticism proffered by Newaj and van Eck “Automatically Unfair and Operational Requirements Dismissals: Making Sense of the 2014 Amendments” (2016) 19 PER at 16: “[T]he Supreme Court of Appeal was misdirected in finding no contradiction, or at least an eroding effect, between the statutory provisions which permit dismissal on the grounds of operational requirements and terminations by reason of compelling employees to accede to an employer’s demand. We agree with Thompson that there are grey areas where operational requirement dismissals and strategic dismissals which form part of collective bargaining overlap. This is so, particularly where an employer has its proverbial back against the wall and is fighting for its financial survival. Rather than admitting that such a shadowy area exists, and assuming the responsibility of evaluating on a case-by-case basis where there are substantive reasons to endorse such dismissal, the Supreme Court of Appeal stuck to the structured divide between strategic and permanent dismissals.”

Well done, Dr Newaj and Professor van Eck!
- Author UP Law

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