Legal Articles

It is widely accepted that the main objective of law is to ensure that justice prevails. In the administration of justice, there is a notion that requires that justice ought not only to be done, but it must be seen to be done. This means that to the man who is watching outside the ring, he must be satisfied that the deserving opponent won the bout. In turn, it is thought, this will inspire confidence and trust in our justice delivery system.

Our Labour laws demand nothing less, procedural and substantive fairness must be the order of the day. In this article, we shall discuss how the provisions of Section 189 of the LRA seek to ensure that fairness is done before a retrenchment is effected.

Can You be Retrenched Without Being Consulted?

Central to the requirements of dismissals based on operational requirements (retrenchment), our law particularly the Labour Relations Act 66 of 1995 (LRA), is an obligation to consult the affected employees and/or their representatives. This is true to the extent that if an employer fails to hold a consultation with the parties that it is obliged to consult before dismissing on operational requirements, such process will be deemed procedurally unfair as was held in the case of Aunde SA (Pty) Ltd v National Union of Metalworkers SA [2011] 32 ILJ 2617 (LAC). In fact the words used in Section 189 (1) of the LRA is “must consult” which indicates that the provision is peremptory and the employer is compelled to do so.

Regarding the parties, section 189 (1) is clear about which parties must be consulted when a dismissal on operational requirements is contemplated.

1. Parties that ought to be consulted as per the collective agreement; if none
2. Workplace forum; if none
3. Registered trade union; if none
4. Employees likely to be affected or their representatives seconded for that purpose.

What is the Consultation Process in Terms of Section 189?

The main purpose of the consultation process is so that the parties may come to the table and meaningfully engage in a joint consensus seeking process, so that the impact of the dismissals will be reduced to the least minimum if they cannot be avoided altogether. As such the requirement or obligation to consult lies at the heart of the retrenchment process as it is the first step that initiates the whole procedure. The retrenchment procedures prescribed in section 189 and in section 189A are both initiated by a section 189 (3) notice, which serves to invite parties to a consultation process and also discloses relevant information as to why retrenchments are contemplated as well as how the employer intends to do it.

The section 189 (3) notice must disclose information that includes but not limited to:

• The reasons for the proposed dismissals;
• The alternatives that the employer considered before proposing the dismissals, and the reasons for rejecting each of those alternatives;
• The number of employees likely to be affected and the job categories in which they are employed;
• The proposed method for selecting which employees to dismiss;
• The time when, or the period during which, the dismissals are likely to take effect;
• The severance pay proposed;
• Any assistance that the employer proposes to offer to the employees likely to be dismissed;
• The possibility of the future re-employment of the employees who are dismissed;
• The number of employees employed by the employer; and
• The number of employees that the employer has dismissed for reasons based on its operation requirements in the preceding 12 months.

The above clearly indicates that the consultation process is very critical in this procedure, one that may render the whole process unfair and invalid in the event that it is not conducted in a proper manner.

On the other side of the coin, where the employer initiated the consultation but a consulting party frustrated the process or deliberately failed to participate, such party may not later claim that the process was insufficient as was held in the case of Association of Mineworkers and Construction Union and Others v Tanker Services (JS148/16) [2018] ZALCJHB 226. Another case of note on this point is Tirisano Transport and Services Workers Union and Others v Putco (Pty) Ltd (J1879/18) [2018] ZALCJHB 207 where the Court declined to uphold the application of a Union which had frustrated the consultation process but then sought to have the employees reinstated who had been retrenched.

Van Deventer & Van Deventer Incorporated  - Employment and Labour Law Attorneys South Africa

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