Process Review

Section 189 – Importance of Substantive and Procedural Fairness

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.

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Organisational Effectiveness: Process efficiency or process effectiveness?

Process efficiency and effectiveness are words often used interchangeably, but the reality is that business need to consider both process efficiency and process effectiveness to optimize revenue and profits.

Process Efficiency

Process efficiency refers to the close tracking and monitoring of the performance of existing processes.  It is an important aspect when measuring productivity and is often a pertinent aspect during the implementation of new technology.

“The first rule of any technology used in a business is that automation applied to an efficient operation will magnify the efficiency. The second is that automation applied to an inefficient operation will magnify inefficiency.” – Bill Gates

Regular review of the input provided by internal (team members) and external (customers) stakeholders serve to measure how efficient the allocation of resources is, efficiency in the execution of tasks and outcomes.  Reducing waste and costs, improving productivity and customer services (doing what is right) are amongst the things that continuously drive improvements in operational efficiency.

Process Effectiveness

The relevance and applicability of a process, measures the effectiveness of it.  Is it fulfilling the needs and demands of internal and external stakeholders?  An effective process will provide the right outcomes (doing the right things) for its stakeholders, at the right cost, the right time, and the right place.

“Excellent firms don’t believe in excellence – only in constant improvement and constant change.” – Tom Peters

Constant innovation and change through stakeholder engagement and interaction, supports the notion that business excellence is achievable.  Regular reviews and assessments of process effectiveness is a business imperative and ensures that processes remain relevant and deliver on business objectives.

Consider process efficiency and effectiveness on a continuum where both process efficiency and effectiveness are required to ensure that strategic and operational business objectives are achieved.

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