Fired for not getting a master’s degree – what the law says

In a key decision, the Labour Court has confirmed that employers can fire employees if it’s necessary for the company to operate effectively, even in situations that are not typical layoffs or reorganisations.

This means that companies can require certain qualifications or skills to keep their staff, as long as they can show it is important for the business.

This decision follows the case of Fatima Begum Sayed Ally Khan v. Durban University of Technology (DUT), where the dismissal of thirty-one lecturers, including Ally Khan, was contested after they failed to obtain a master’s degree—a newly mandated qualification.

ENS acted for the DUT in this matter, and legal experts Irvin Lawrence and Kara Barnard explained the outcome of the case.

The DUT, formed from the merger of Durban Technikon and ML Sultan Technikon, introduced a Strategic Direction policy requiring all lecturers to hold at least a master’s degree.

This requirement aimed to elevate the university’s profile, attract more students, enhance research capabilities, and secure additional funding.

To support lecturers in achieving this goal, DUT offered incentives such as study leave and subsidised costs for their studies.

Ally Khan registered for her master’s degree in 2011 but withdrew the same year. Despite ongoing reminders from the university about the new qualifications, she did not complete her degree by the end of 2021.

Lawrence and Barnard explained that in June 2021, DUT initiated a consultation process under section 189A of the Labour Relations Act, leading to the termination of her employment along with that of her colleagues.

Ally Khan and her trade union representatives sought reinstatement through an urgent application, which was ultimately dismissed by the Labour Court.

The court determined that DUT had conducted a fair consultation process.

Subsequently, Ally Khan brought forth an unfair dismissal claim, arguing that the master’s degree requirement was not part of her original employment contract.

However, DUT contended that the evolving operational landscape necessitated this change to maintain competitiveness and financial viability.

Then, the Labour Court found that the requirement for a master’s degree fell within the definition of operational requirements as outlined in the Labour Relations Act, citing the financial management and competitiveness of the university as justifications.

It was noted that Ally Khan had acknowledged the need for a master’s degree in her correspondence with the DUT, and that the unions had not disputed this requirement during consultations.

“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’,” said Lawrence and Barnard.

However this does not mean it is said and done; it is likely that the Labour Court, when considering this type of dismissal, will interrogate its fairness carefully.  

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