Employers often confuse the rights to consult and to represent during retrenchments with the rights of representation during other internal matters, such as disciplinary hearings. However, retrenchments are often more complex, time-consuming, and require more than one sitting.
The Labour Relations Act 66 of 1995 (as amended) sets out the parties that need to be consulted in a hierarchical manner.
Sections 189 and 189A of the Labour Relations Act 66 of 1995 (as amended) set out the requirements for a retrenchment to take place within a workplace as well as who to consult with.
Section 189 of the Labour Relations Act states as follows:
- When an employer contemplates dismissing one or more employees for reasons based on the employer’s operational requirements, the employer must consult-
- any person whom the employer is required to consult in terms of a collective agreement;
- if there is no collective agreement that requires consultation –
- a workplace forum, if the employees likely to be affected by the proposed dismissals are employed in a workplace in respect of which there is a workplace forum; and
- any registered trade union whose members are likely to be affected by the proposed dismissals;
- if there is no workplace forum in the workplace in which the employees likely to be affected by the proposed dismissals are employed, any registered trade union whose members are likely to be affected by the proposed dismissals; or
- if there is no such trade union, the employees likely to be affected by the proposed dismissals or their representatives nominated.
The above principle was reaffirmed in the fairly recent case of AMCU and Others v Royal Bafokeng Platinum Limited and Others  ZACC 1, where the final judgment was handed down in the Constitutional Court on 23 January 2020. In short, AMCU was a minority union (11% representativeness) within the workplace. It was excluded from the consultation process as the employer had already entered into a collective agreement with the majority union setting out the decision on whom to consult whilst contemplating retrenchments. The court found the above exclusion to be fair.
The court thus confirmed that there is clear importance in entering into a collective agreement with a majority union. Further, such an agreement should regulate the retrenchment process and whom to consult during such process in order to avoid unnecessary time-wasting and/or further complications.
Lastly, it is clear from the above that the retrenchment process differs from any other internal procedure, e.g. a disciplinary hearing, where the parties each have the right to be heard and perhaps even represented by an outside party (where the necessary application is made and granted. There need not be one-on-one consultations with employees. Not all employees need to be consulted with. The consultations can thus be held with any of the above-listed parties, hierarchically, to the exclusion of others. However, employers must not misunderstand the above judgment to mean that any collective agreement will exclude other parties from the consultation process. The union with whom there is a collective agreement must be a majority union within the workplace for the exclusion to take place.
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About The Author:
Dyllan Jankielsohn is a Labour, Consumer Protection and POPIA legal advisor and an ad-hoc training facilitator at SEESA Bloemfontein. He obtained his LLB degree from the University of the Free State. He is an admitted attorney of the High Court of South Africa and has approximately six years of experience in the field of labour law.
Labour Relations Act No. 66 of 1995 (as amended)
AMCU and Others v Royal Bafokeng Platinum Limited and Others  ZACC 1