Navigating a Section 189 Process
The Importance of Substantive and Procedural Fairness when contemplating dismissals for operational requirements
In today’s challenging economic environment, many South African companies are facing tough decisions — including the possibility of retrenchments due to operational requirements. Whether due to technological, economical or structural changes, , embarking on a Section 189 process is operationally, financially and emotionally taxing. Ignoring the cornerstones of labour relations, procedural and substantive fairness, may cost your business in many different ways.
What is Section 189?
Section 189 of the Labour Relations Act outlines the requirements and legal framework for the dismissal of employees for operational requirements in South Africa. It seeks to engage affected employees through a consensus seeking consultation process.
Failure to adhere to the framework outlined in Section 189 of the Labour Relations Act may lead to labour disputes, CCMA claims, reputational damage, and significant financial loss.
What Does It Mean to Be Substantively and Procedurally Fair?
🔹 Substantive Fairness means that the reason for the dismissals must be legitimate — such as technological, economic, technological reasons for a change in operations.
🔹 Procedural Fairness refers to how the retrenchment is carried out. This includes proper consultation with affected parties, fair selection criteria, reasonable notice periods, and meaningful attempts to avoid dismissals where possible.
The Risks of Getting It Wrong
- Legal risk: An unfair dismissal process can lead to costly payouts, reinstatement orders, or penalties via the CCMA or Labour Court.
- Reputational risk: Employees — current and future — judge an organisation by how it treats its people.
- Operational risk: Mismanagement can result in loss of trust, decreased productivity, and morale issues that may cripple operations.
How Elan Solutions Can Help
At Elan Solutions, we’ve helped organisations of all sizes navigate dismissal for operational requirements ethically, compliantly, and sensitively.
As your HR partner, we:
- Facilitate fair consultation processes in line with Section 189
- Ensure documentation and communication are handled professionally
- Guide leadership through every step with empathy and clarity
- Help you protect the integrity of your organisation and the dignity of your employees
Dismissals for operational requirements should never be approached casually. It requires expert understanding of the Labour Relations Act, strong communication, and meticulous process management. Let us help you do it right.
