BY lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za.
Go to: www.labourlawadvice.co.za
c) to first consult about this prospect before making any decision to retrench. Should the employer fail to engage in proper pre-retrenchment consultations and the employees are forcibly retrenched this will normally result in an unfair dismissal finding against the employer.
There are a number of reasons that retrenchment consultations may fail to take place or may fail to comply with the requirements of the LRA. These include:
The employer may have urgent reasons for needing to retrench such as:
a. Dire financial circumstances threatening the immediate survival of the business
b. A pressing need to get rid of employees pending a hastily arranged takeover by another entity. The prospective buyer may have set a very tight deadline for the date of the takeover and may have made it a condition of the deal that workforce numbers be reduced before the conclusion of the sale
c. The employer may have no money to pay salaries during a consultation exercise (which exercise may be very protracted especially where the employer has more than 50 employees). The employer may therefore need to curtail retrenchment consultations.
The employer was unaware of its legal obligation to consult with the employees/union. Some employers are aware of the requirement to consult but are not aware of the role of the union or of the extent of the consultation requirements. It is not likely that any of these reasons will suffice as an acceptable excuse for the employer’s failure to consult. This is because employers are required to find out about what they do not know.
In the case of Dr J Le Grange vs Dr GB Visser (Lex Info 18 November 2024. Labour Appeal Court case numberJA101/23) Dr Visser had employed Dr Le Grange but decided to terminate her employment when he lost the contract on which she was working. The Labour Court decided that Le Grange had referred her dispute prematurely during her notice period.
The Labour Appeal Court found that section 191(2)(a) permitted the employee to refer her dispute once receiving notice of termination and that her referral had therefore not been premature. The LAC further found that, while the employer had had a valid reason for retrenching the employee, he had not followed any retrenchment procedure at all. The LAC therefore ordered the employer to pay the employee compensation equal to six months’ remuneration.
This outcome highlights the need for employers to understand and implement statutory procedures, especially those pertaining to retrenchments. The Court’s heavy compensation order is a warning to employers that they must ensure that their decision makers must be trained in labour law procedure.
The innovative video series WALKING THE LABOUR LAW TIGHTROPE assists employers to provide their managers with very inexpensive training that allows the managers to achieve the necessary knowhow at times suitable to their very busy schedules. Its 48 chapters, averaging 10 minutes in length each, can easily be watched at junctures when the manager has time. This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through the use of a stimulating, animated case study that runs throughout the 48-chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.
A further advantage is that the manager can, for a full year, easily go back to any of the 48 videos for purposes of refresher training or in order to access information on how to deal with a current workplace issue. This solves the problem of managers forgetting what they have learned.
This video series helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss.
To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to www.labourlawvideos.co.za or contact Ivan on ivan@labourlawadvice.co.za
The opinions expressed in this article are the author’s own and do not necessarily reflect the view of Lexinfo CC.
Date Posted: 17 Dec 2024