WHEN THE LINES ARE BLURRED ─ A CASE OF MISCONDUCT, INCAPACITY OR OPERATIONAL REQUIREMENTS: ARE ALL DISMISSALS GOING OPERATIONAL?

The Labour Relations Act 66 of 1995 provides for three grounds of dismissal in the form of misconduct, incapacity and the employer’s operational reasons. Even though these grounds are distinct from one another, there are instances where one case of dismissal may fit under more than one of these grounds. The difference between these grounds is not always found in the fact that misconduct is accompanied by an element of fault from the employee’s side, while generally incapacity and operational requirements are not. This has in certain instances, correctly or incorrectly, led to most cases that have the potential of affecting an employer’s operations, either directly or indirectly, being dealt with as dismissals for operational requirements. This begs two questions: whether operational requirements has become an easy-to-use ground for most dismissals; and whether it has always been the intention of the legislature that the three grounds of dismissal should not be applied rigidly