In a time when the South African economy is in a dire state, and load shedding is constant, many Employers are feeling the financial pressure.
Sections 189 and 189A of the Labour Relations Act permits an employer to dismiss employees for operational requirements or reasons.
Section 189(2)(a)(i) of the Labour Relations Act states that the Employer and other consulting parties must, during consultations, attempt to reach a consensus on appropriate measures to avoid dismissals.
The Labour Relations Act obligates the employer to consider alternatives to retrenchment.
These alternatives may include the following:
- The granting of either paid or unpaid leave;
- Implementation of short-time or layoff;
- The reduction or elimination of overtime;
- The reduction or elimination of work on Sundays;
- The transfer of employees to other positions in the same undertaking; and
- The spreading of the retrenchment over time allows time for a natural reduction in personnel numbers to occur.
In the case of Entertainment Catering Commercial & Allied Workers Union of SA and Others v Shoprite Checkers t/a OK Krugersdorp (2000) 21 ILJ 1347 (LC), the Labour Court found employers are entitled to change employees’ conditions of service to avoid retrenchment unilaterally.
This was confirmed later by the Court in Media Workers Association of SA and Others v Independent Newspapers (Pty) Ltd (2002) 23 ILJ 918 (LC).
If alternatives to avoid retrenchments are not considered, it can, in certain circumstances, result in the retrenchments being unfair.
The Courts have become more intolerant towards employers who refuse to consider alternatives to avoid retrenchments and save their employees’ jobs.
In Chemical Workers Industrial Union and Others v Algorax (Pty) Ltd (2003) 24 ILJ 1917 (LAC), the Court stated that the employer could have implemented alternatives to avoid retrenchments without having to resort to retrenching the employees who refused to accept the changes.
However, suppose the employees make a proposal that the employer does not accept. In that case, the employer must explain why the proposed alternative is not a viable option in the circumstances.
This could be, for example, when an employer lost the contract on the mine or the client has ended the contract and, therefore, there is no alternative that could be implemented to avoid the retrenchments.
Therefore, only if it can be proved by the employer that the alternative proposed is not viable in the circumstances, the alternative to avoid the retrenchments could, in certain circumstances, not be implemented.
Want to know more about retrenchments? Contact your nearest SEESA Labour Legal Advisor for expert advice. Alternatively, leave your contact details on our website, and a SEESA representative will contact you.
About The Author:
Azel Ferreira started her career at the SEESA Upington branch in March 2020. She is currently a BEE, Labour and CAT Legal Advisor. She obtained her LLB degree at the University of the Free State.
Resources:
- Labour Relations Act 66 of 1995;
- https://www.derebus.org.za/alternatives-retrenchment-employers-obliged-save-jobs/;
- Entertainment Catering Commercial & Allied Workers Union of SA and Others v Shoprite Checkers t/a OK Krugersdorp (2000) 21 ILJ 1347 (LC);
- Media Workers Association of SA and Others v Independent Newspapers (Pty) Ltd (2002) 23 ILJ 918 (LC);
- John Grogan (Workplace Law 11ed (Cape Town: Juta 2014) pg 214 – 215);
- https://ceosa.org.za/what-can-i-do-to-save-my-employees-possible-alternatives-to-retrenchment/;
- https://www.skillsportal.co.za/content/it-necessary-consider-alternatives-prior-retrenchment.