Losing employment is one of the most devastating experiences any person could ever go through in life, more so if the person is the main or the only breadwinner in the household. It can be presumed that an employee who voluntarily resigns from their job would have put in place contingency measures to survive until they secure other employment, what of an employee who is summarily dismissed or retrenched? A lot of challenges are encountered in such a scenario. South African labour laws are some of the most stringent when it comes to employee rights. In this article we shall look at a general overview of the requirements for a fair retrenchment process.
For the benefit of those who might not be familiar with what retrenchment is, we will define it first. Retrenchment is a form of dismissal whereby employees are dismissed owing to no fault on their part. A retrenchment, so to speak, is a dismissal based on the operational requirements of the employer which can be;
Owing to the reasons above, it may then become necessary for the business to retrench some employees. However, the labour laws in South Africa place an obligation on employers to approach retrenchment processes with caution and to consider it only as a last resort. Section 189 of the Labour Relations Act 66 of 1995 (LRA) sets out a guideline of the retrenchment process which can be summarised as the following:
The first stage is whereby the employer conducts a consultation process with the employees who are likely to be affected by the retrenchment. Employee representatives (if any) should also be invited to this consultation process. The aim of this process is to seek consensus between the employer and the employees, so that if possible a retrenchment can be avoided. The employer will give reasons why it is contemplating on effecting retrenchments, and explain if other alternatives have been considered. The class of employees that will likely be affected will be disclosed and the criteria of how these employees will be selected. This criteria must be fair, objective and justifiable. A time frame as to when the retrenchments may likely be effected may also be disclosed. In turn, the employees must also be given an opportunity to air their views, ideas and suggestions, which the employer may accept, respond to or consider at a later stage. As alluded to above this is a consensus seeking process which must be approached in good faith in order to seek ways that will have the least negative impact on both sides e.g reducing the number of affected employees if retrenchment cannot be avoided, as well as the timing of the dismissals. The issue of severance pay will also be discussed during this consultation process. In the event that it is found that retrenchment is unavoidable, the next stage is the selection stage.
After the consultation process is complete and it is decided that retrenchment is unavoidable, then the employer will conduct the selection process using the criteria that was disclosed during the consultation process. Selection criterion differ depending on the reasons why the retrenchment is being effected, sometimes the criteria will be based on qualifications, experience, skills, or maybe a certain department has been affected by the introduction of new technology. The most common criteria used is the “last in first out” criteria, which seeks to reward loyalty and protect the interests of long serving employees.
This will be the last stage whereby the selected employees will be served with termination letters and their severance pay will be processed according to the Basic Conditions of Employment Act 75 of 1997.
In the event that the employer employs more than 50 employees, a slightly different procedure is provided for in section 189A of the LRA which we will touch on in another article in future. At Van Deventer and Van Deventer Incorporated we understand that losing employment is very daunting and employee rights must be protected at all cost. This is why our Labour Law litigation department stands ready to shield you from unfair dismissals and retrenchments. We assist both employers and employees through retrenchment processes amongst a wide array of other labour law litigation services. Contact us for further assistance.
The information contained in this site is for informational purposes only, and should not be construed as legal advice on any subject matter. One should not act nor refrain from acting on the basis of any content included in this site without seeking legal or other professional advice. The contents of this site contain general information which may not reflect current legal developments or address one’s situation. We disclaim all liability for actions one may take or fail to take based on any content on this site.
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