12/02/2026
⚖️ LABOUR LAW DISCUSSION | SOUTH AFRICA
Operational Requirements vs Incapacity — Are Employers Still Getting This Wrong?
In recent matters before the Commission for Conciliation, Mediation and Arbitration and the Labour Courts, we continue to see dismissals being overturned — not because the employer lacked a substantive reason, but because the wrong legal route was followed.
A recurring issue:
➡️ Employers dismiss for operational requirements
➡️ When the facts point closer to incapacity (poor performance / ill health)
➡️ Or worse — a hybrid process with elements of both
This often leads to findings of procedural and substantive unfairness, despite genuine business pressure.
🔍 LEGAL QUESTION FOR PRACTITIONERS:
Under the Labour Relations Act, how far can an employer rely on commercial rationale before the dismissal shifts from operational requirements to incapacity?
Consider:
• Declining productivity linked to skills gaps
• Automation rendering certain competencies obsolete
• Ill-health affecting operational efficiency
• “Restructuring” used to address performance issues
At what point does the law require a performance-management or incapacity enquiry, rather than a section 189 process?
🧠 POINT FOR DEBATE:
Is the current jurisprudence placing too heavy a procedural burden on employers, or is it a necessary safeguard against disguised dismissals?
Should courts:
✔️ Allow more flexibility where economic pressure is proven?
❌ Or strictly separate incapacity from operational requirements to protect employees?
💬 Attorneys & practitioners:
How are you advising clients to structure these processes in 2026?
Have you seen recent awards or judgments shifting the approach?
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