The Concept of Managerial Prerogative in South African Labour Law

Abstract

Managerial prerogative has two components: the power to manage industrial capital and the power to command labour. An employer owns the capital and has the power to decide how to perform or control his or her affairs. An employee works in order to survive. The employer allocates tasks to the employees that must be done adequately. Since 1994, the managerial prerogative has been severely restricted by the legislature to protect both employers and employees. The employer has the right to appoint or recruit employees in the workplace. The Employment Equity Act compiles the designated employer to elaborate employment policy that implements affirmative action to benefit persons in previously disadvantaged groups. The right to dismiss employees has been severely affected. Every dismissal of an employee is subject to substantive and procedural fairness requirements. The commissioners and labour courts usually review the employer’s decision to dismiss employees. If they found the dismissal to be substantively unfair, they can award reinstatement, re-employment or compensation. Employers have the absolute right to organise their affairs and even dismiss employees for operational requirements. When implementing dismissal for operation requirements, the employers have to consult the employees. The employees can strike in order to dissuade the employers from implementing dismissal based on operational requirements. The employer has right to dismiss employees for poor work performance. However, they must be given a reasonable time to improve their performance standard. Collective bargaining has severely diminished the managerial prerogative. There is no duty to bargain. However, the Labour Relations Act creates a framework whereby all parties have to promote collective bargaining. Employees have organisational rights to form or join a trade union and office-bearers are entitled to take reasonable time off to perform their union activities. In the light of the above, the concept of managerial prerogative has been severely affected.

DOI: 10.5901/mjss.2014.v5n20p424