How Last In First Out Works
The seniority based selection method has a purpose, and also real exceptions.
How Does Last In First Out Actually Work?
The method is meant to be objective: within a defined group of similar roles, the most recently hired staff are selected first.
Last In First Out is the conventional principle for this kind of selection, and it exists to keep the process from becoming arbitrary or targeted 1.
The comparison only makes sense within what is often called the affected category, meaning roles genuinely similar to yours, not the whole company at once.
Comparing your length of service to someone in an entirely different role or department is not the relevant comparison to make.
When An Employer Can Depart From It
An employer is allowed to depart from Last In First Out, but only with sound, explainable reasons.
Specific skills genuinely needed for the business going forward are a commonly cited justification, provided they are applied consistently and documented.
A vague preference, or reasons that shift when questioned, are weaker justifications and worth challenging directly.
Whatever justification is given, the employer still carries the burden of proving the dismissal was for just cause if it is later challenged 2.
What To Do If You Think The Method Was Not Followed
Ask, in writing, what the affected category was and what criteria were used within it.
Compare your length of service against colleagues in genuinely similar roles who were not retrenched.
Read about what makes a retrenchment fair overall, since selection is only one part of the wider picture.
An employment lawyer can review the criteria used in your case and tell you whether the departure from the usual method looks justified.
It is also worth asking whether the same criteria were applied consistently to everyone in the affected category, not only to you.
If a colleague with less seniority than you was kept on without a clearly stated reason, that comparison is worth documenting alongside your own case.
Employers are generally expected to be able to explain their selection method if asked, so a request for that explanation in writing is a reasonable first step.
A reluctance to provide any explanation at all is itself a detail worth noting as you build your account of events.
Selection disputes often come down to documentation on both sides.
The more you can show, the stronger your position becomes.
Understanding exactly how the selection was applied in your case is something an employment lawyer can help you check carefully.
Common questions
What does affected category actually mean?
It refers to the specific group of similar roles being considered for retrenchment, not the whole company. Last In First Out is applied within that group, so comparing yourself to someone in a different role is not the right comparison.
What counts as a sound reason to depart from it?
Specific, documented skills or experience genuinely needed for the business going forward are commonly cited reasons. A vague preference for one person over another is weaker justification than a documented skills gap.
Can performance be used instead of seniority?
It can factor in, but it should be applied consistently and be genuinely tied to the business need, not used selectively to justify removing a particular person. Ask for the specific criteria used in your case.
What if I was more senior than colleagues who kept their jobs?
That is worth raising directly, since it goes to the heart of whether Last In First Out was actually followed or departed from without sound reason. Ask for the selection criteria in writing.
Sources
- Last In First Out is the conventional, objective principle for selecting who is retrenched, and an employer who departs from it must be able to show sound reasons for doing so. Richard Wee Chambers
- The burden falls on the employer, not the employee, to prove the dismissal was for just cause or excuse. Mah Weng Kwai & Associates
Keep reading
Understanding exactly how the selection was applied in your case is something an employment lawyer can help you check carefully.