LLW2601 ASSIGNMENT 02

LLW2601 ASSIGNMENT 02 QUESTION 1 The consultation process is an absolute must, there is no way for the employer to avoid consultation. Consultations must take place before the employer implements any proposal. Consultation must take place when dismissal is "contemplated." Should the employer not allow the union or employee representative or workplace forum or any other relevant party to make representations during consultation, the dismissal will be procedurally unfair. Dismissals for operational requirements are classed as "no fault" dismissals - meaning that the dismissal is not due to any fault of the employee. It is well known that employers utilise dismissals based on operational requirements is a disguise for what is in actual fact a dismissal based on misconduct or incapacity - the errant employee's job suddenly becomes redundant, or the poorly performing employee's job suddenly becomes redundant. Section 189(1) of the LRA provides that, when an employer contemplates dismissing one or more employees for reasons based on the employer’s operational requirements, the employer must consult  any person whom the employer is required to consult in terms of a collective agreement;  if there is no such collective agreement,  a workplace forum, if such exists; and  any registered trade union whose members are likely to be affected;  if there is no workplace forum, any registered trade union whose members are likely to be affected; or  if there is no such trade union, the employees likely to be affected by the proposed dismissals or their representatives nominated for that purpose.