Basic Guide to Retrenchment
Employers must consider alternatives to retrenchment. Employers must consult all the relevant parties when considering worker retrenchment. If retrenchment is unavoidable, fair procedures must be followed.
The Labour Relations Act applies to all employers, workers, trade unions and employers’ organisations, but does not apply to -
When an employer considers retrenching workers because of operational needs, he must, in writing, consult –
The employer and the consulting parties must agree on:
Employers must give the consulting party written notice and information on:
An employer must allow a consulting party to respond to a retrenchment notice. If the employer disagrees with the response, he must state why. If the consulting party responds in writing, the employer must respond in writing.
Organisations with More Than 50 Workers
When an organisation has more than 50 workers, the minimum number of workers that may be retrenched is –
If more than 50 workers are to be retrenched, then that number must be added to the number of workers retrenched in the previous 12 months. The total number must be equal to or more than the relevant number shown in the table above.
If a dispute arises as a result of retrenchments,
The Commission for Conciliation, Mediation and Arbitration (CCMA) must appoint a facilitator 15 days after a retrenchment notice if requested by –
If a facilitator is appointed, and 60 days have elapsed since the date of the retrenchment notice -
If an employer gives notice before the above periods have elapsed, workers may give notice to strike.
If a facilitator is not appointed –
If an employer gives notice of retrenchment before the above periods have elapsed, workers may give notice to strike.
Referral to Labour Court
If an employer’s retrenchment procedure is unfair, a consulting party may apply to the Labour Court, within 30 days after the employer’s notice, to order the employer to –
If a party has already referred a retrenchment dispute to the Labour Court, it may not give notice to strike.
If a party has already given notice to strike, that party may not refer the dispute to the Labour Court.
14 days’ written notice must be given for holding secondary strikes. During this period the dispute must be referred to the CCMA. After this period has elapsed, the workers have the right to strike.