In this blog we focus on how an employer can ensure it follows a fair redundancy process by applying a fair selection criteria. If it is believed that the scoring is not correct or objectively applied, employees should seek advice on the possibility of challenging the decisions made. This case also considered the case of Williams –v- Comp Air (1982) 1 ICR 156 where Justice Browne-Wilkinson, in considering the issue of fair selection, identified the following as generally accepted principles governing how reasonable employers will typically act in a redundancy situation, namely: 1. Employees should be given a chance to challenge the decision and scores given to them. 21 Jun 2018 . 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. 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. 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. 5. Want the latest legal news and views in your box? The application of LIFO is generally applied subject to a right to retain special skills, especially where such skills are crucial for the employer’s business to continue operating. 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. When deciding on the pool, employers have wide discretion as there are no fixed rules about how the pool should be defined. The Attendance record criteria must be used carefully. Taking into account years of service, on the other hand, to determine who will be retrenched or who remains where there is a reduction of the number of jobs, is the fairest and most objective way to affect the downsizing. Retrenchments/redundancy falls within the ambit of section 189 and 189A. Tax deductions for home expenses - Working from home, How the Cannabis laws impact your business. Provided by Werksmans Attorneys . When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria. Was there a genuine redundancy situation? Was a fair procedure been followed, in particular have any groups been disadvantaged/discriminated against? Fair selection in recruitment must be objective, consistent and non-discriminatory resulting in the best person being selected for the job. 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. Selection on subjective grounds may result in the subsequent dismissal being unfair. This occurred in the case of NUM & others v Anglo American Research Laboratories (Pty) Ltd [2005] 2 BLLR 148 (LC), where the applicant who had been retrenched had a longer period of service that employees who had not been retrenched, who had skills that the applicant did not. 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. 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.