By Graham Damant Friday, January 23, 2004

When a court is asked to adjudicate the substantive fairness of a dismissal for operational requirements, it is tasked with resolving a dispute that is essentially economic: a dispute about the distribution of cost and benefit between owners of the enterprise and workers employed in it. That dispute has more in common with a classic dispute of interest than one of right. There is seldom, if ever, a right or wrong answer to the question whether a particular dismissal is necessary or justified by the business imperative on which it is grounded. The enquiry is not a fact-finding one, but rather takes the form of a review of the norms that the employer is seeking to establish - norms that determine the distribution of cost and benefit. A 'business line call is at stake'. Because of this, the courts 'instinctively look for ways of avoiding being drawn into the economic merits of a decision, and the natural response has been to give employers a hefty margin of grace in this quarter'.

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