Kim Bezuidenhout

Section 189 – Importance of Substantive and Procedural Fairness

Organisational Efficiency and Effectiveness, Process Design, Process Review / /

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.

Learn More About Our Services

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HR Practices Review

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When Is the Right Time to Review Your HR Practices?

As a business owner or manager, you’re constantly balancing strategy, people, and business performance. But when it comes to human resources, many companies fall into a reactive cycle—only reassessing policies and practices when a crisis occurs. The truth is, effective HR should be proactive and foundational, not just a response to issues.

So, when is the right time to review your HR practices? The answer: sooner than you think—and more often than you might currently be doing.

  1. When You’re Planning for Growth

Whether you’re hiring, expanding into new markets, or scaling operations, your people strategy needs to align with your business goals. Reviewing your HR practices ensures that:

  • Your structures and job roles are fit for purpose.
  • You’re compliant with labour legislation during the expansion.
  • You have the right people, with the right skills, in the right seats.
  1. When Business Feels Stuck or Unproductive

If your team is demotivated, turnover is rising, or productivity is slipping, your HR practices may need fine-tuning. Regular reviews can highlight:

  • Gaps in and focused/targeted training and development.
  • Misaligned or outdated position descriptions and performance metrics.
  • Poor communication or leadership practices.

These issues, when addressed early, can reignite employee engagement and performance.

  1. When Laws and Regulations Change

South Africa’s labour laws are detailed and dynamic. If your HR policies aren’t staying in step with changes to the Basic Conditions of Employment Act, Employment Equity Act, or Labour Relations Act, you’re putting your business at risk. Regular reviews help ensure ongoing compliance and peace of mind.

  1. When You’re Facing a New Year (or Quarter)

While many businesses conduct annual reviews at year-end, it’s often rushed or overshadowed by closing activities. A strategic HR review is best scheduled ahead of a new year or quarter, allowing time to:

  • Adjust policies based on lessons from the past year and latest best practice / legislation changes.
  • Develop clear objectives for performance assessment, employee development, succession planning and retention.
  • Align HR strategies with upcoming business plans.
  1. When You’re Unsure Whether You’re on Track

Sometimes you just need clarity. A comprehensive HR review can provide valuable insight into:

  • Whether your HR function supports your strategic goals.
  • What’s working well—and what’s holding your team back.
  • Which processes need refinement or automation.

How Elan Solutions Can Help

At Elan Solutions, we specialise in HR strategy, operations, and coaching—tailored to South African businesses. Whether you’re a growing SME or an established enterprise, we help you:

  • Make labour legislation work for you.
  • Evaluate your current HR processes.
  • Align HR with your business goals.
  • Create actionable plans that boost productivity, compliance, and engagement.

Let us be your partner in building a people-first, future-ready business.

📩 Contact us today at [email protected]
💬 Or book a free consultation to discuss how we can support your HR journey.

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