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BY Irvin Lawrence AND Kara Barnard
Hard lessons: Retrenched for not having a Master’s Degree
Typically, when an employer seeks to justify the fairness of a dismissal based on its operational requirements they are doing so in the context of a retrenchment or a restructuring exercise. However, there are a number of decisions where an employer has been able to justify a dismissal on this ground in other contexts, For example, in SA Transport and Allied Workers Union and others v Khulani Security Services (Pty) Ltd the employer was able to justify the dismissal of employees on the basis of its operational requirements where the employee failed a polygraph test. The recent decision of the Labour Court Fatima Begum Sayed Ally Khan v Durban University of Technology provides another example.
In 2021, the Durban University of Technology (“DUT”) took the bold step of retrenching some thirty-one lecturers after they had failed to obtain a master’s degree, as a minimum qualification. These employees had not committed any act of misconduct, and the employer did not argue that the dismissal could be justified on the basis of poor work performance; it argued that its operational requirements justified the dismissal.
The facts
The DUT was established following the merger of the Durban Technikon and ML Sultan Technikon. After this merger, the DUT adopted and implemented a Strategic Direction policy that required all lecturers to obtain a master’s degree as a minimum qualification.
The need to upskill all lecturers to a master’s degree was informed by a number of reasons, including the fact that this qualification had become a mandatory minimum requirement at most universities in South Africa as well as internationally. Having lecturers with this postgraduate qualification would enhance the DUT’s profile and reputation, enabling it to attract both local and international students. Additionally, it would serve to improve the University’s research capacity and academic competence. This elevated standing of DUTs academic staff would attract additional grant funding and research revenue, while also ensuring that the University was able to offer undergraduate programmes taught by highly qualified lecturers.
The DUT introduced various benefits to incentivise employees to achieve a master’s degree, including generous study leave as well as the subsidisation of study costs that could be undertaken at the DUT or at any other university in South Africa. From 2012 onwards, the DUT intermittently addressed correspondence to employees and convened meetings for the purpose of reminding lecturing staff of this additional educational requirement.
Ms Ally Khan registered for her master’s degree in 2011 and even applied for the financial study aid benefit from DUT but deregistered in the same year.
In August and October 2020, the DUT issued correspondence to Ms Ally Khan and several other lecturers, noting that they appeared to have not obtained the master’s qualification despite repeated reminders. The DUT also stated that if the lecturers in question could not provide proof of successfully completing the master’s degree by 31 December 2021, termination of their employment was likely. Ms Ally Khan responded in writing indicating that she was committed to completing her master’s degree and that she supported the initiative for lecturers to have the degree.
On 2 June 2021, the DUT commenced a large-scale consultation process in terms of section 189A of the Labour Relations Act (“LRA”) in respect of those lecturers - including Ms Ally Khan – who on the face of it would not be in a position to complete the post graduate degree by the 31 December 2021. This resulted in the termination of the employment of some 31 employees, including Ms Ally Khan.
The trade unions representing the retrenched employees initially launched an urgent application for an order that DUT reinstate the employees, pending compliance with a fair procedure and further consultations on alternatives to retrenchment. The urgent application was dismissed by the Labour Court which found that the consultation process was procedurally fair and sufficiently exhaustive.
Ms Ally Khan thereafter referred an unfair dismissal dispute to the Labour Court contending that her dismissal was substantively unfair.
A substantial part of Ms Ally Khan’s case revolved around her contention that when she was employed in 2009, it was not a condition of her employment that she had or obtain a master’s degree. The DUT’s approach was that while it may not have been an express requirement in her contract of employment, the operational landscape had changed to the extent that the University could no longer effectively and sustainably continue to employ lecturers who did not have a master’s degree. In other words, the reason for her dismissal was the DUT’s operational requirements. However, the question the Court had to consider was whether the reason for the dismissal proffered by the DUT falls within the definition of an operational requirement contained in the LRA. Section 213 defines operational requirements as “requirements based on economic, technological, structural or similar needs”. The Court found that it did on the basis that the dismissals related to the financial management and competitiveness of the DUT. It also noted that it was apparent from correspondence that she had addressed to the DUT that Ms Ally Khan had accepted the operational requirement that she needed to have the master’s degree. In addition, the trade unions representing lecturers did not, during the consultation process, challenge the fact that this postgraduate degree had become a minimum operational imperative within the university lecturing environment.
Comment
The judgment supports the view that employers can justify dismissals based on their operational requirements, in situations far removed from the typical retrenchment or restructuring context, provided this can be regarded as a “similar need”. However, it is likely that the Labour Court, when considering this type of dismissal, will interrogate its fairness carefully.
*ENS acted for the Durban University of Technology in this matter
Irvin Lawrence
Executive | Employment
Kara Barnard
Senior Associate | Employment
