Home



 
Judging by the enquiries received, there are very few employers who are aware of correct retrenchment procedures, and if they are then they largely ignore the statutory requirements. This I deduce from the large number of enquiries I receive from employees  who are facing retrenchment and I shudder when they tell me what procedure the employer is following.

 
 

Myth : Management have the right to retrench for any operational requirement and there is nothing the employee can do about it.


 

Truth : Rubbish !! No right is absolute, and retrenchments may only be resorted to as a last resort for genuine reasons based on the genuine technological, structural or economic requirements of the employer.

Retrenchments may not be used as a disguise to effect dismissals based on misconduct or incapacity, although it is a fact that this practice is quite widespread.  



This conclusion I reach based on the number of enquiries I receive from employers who inform me that they have perhaps a hundred or more employees but "we need to retrench one employee" Nobody "needs to retrench one employee " and it is blatantly obvious that the employer is disguising a dismissal as a retrenchment. This is a despicable and disgusting practice – not to mention that it is totally unfair procedurally and substantively.

 
 

Myth : Management must first decide who is to be retrenched, and decide on date of termination for those selected. The only remaining requirement is then for management to inform employees accordingly.


 

Truth : As soon as management "contemplate" retrenchment, consultations with the employees likely to be affected must begin. Put differently, as soon as management decide "we may have to retrench" then consultations must begin. The Act (section 189 LRA) states that these consultations must be with the trade Union if there is one, or failing that the Workplace Forum if there is one or failing that with the employees "likely to be affected."
 

This not a choice that the employer must make : The Act states "the employer MUST consult" and therefore there is no option – the employer MUST do it. What is more, the requirements of section 189 apply even if only one employee is being retrenched.

 
 

For more information contact

Case Law Summaries and Articles

 

Can employees be dismissed for refusing to accept new terms and conditions of employment?

Can an employer dismiss employees because they refuse to agree to a change to their terms and conditions of employment? An initial answer may be, “yes”.

Read More >>>

 

Escape route: “Resignation with immediate effect”

The latest case in the ‘disciplining employees who have resigned with immediate effect’ saga has brought about more uncertainty as to whether an employee who resigns with immediate effect shortly before a disciplinary hearing can avoid disciplinary action and subsequent dismissal.

Read More >>>

 

Freedom of expression or incitement to commit an offence? A constitutional challenge

On 4 July 2019, the North Gauteng High Court handed down judgment in the case of The EFF and other v Minister of Justice and Constitutional Development and other (87638/2017 and 45666/2017) in which the EFF and Julius Malema (the applicants) sought to have s18(2)(b) of the Riotous Assemblies Act, No 17 of 1956 (Riotous Act) declared unconstitutional.

Read More >>>

 

Consolidated, comprehensive or general final written warnings

Regarding dismissal, according to the Code of Good Practice, “the courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them.

Read More >>>

 

 

 

 

 

 

Courses and Workshops

 

                   

 

COVID-19 Workplace Preparedness Health, Safety and Claims Management Course

04 & 05 June 2020 (2 x sessions 09:00 – 12:30) (Fully Booked)

Online Course

04 & 05 June 2020 (2 x sessions 13:00 – 16:30) (Fully Booked)

Online Course

08 & 09 June 2020 (2 x sessions 09:00 – 12:30) (Fully Booked)

Online Course

08 & 09 June 2020 (2 x sessions 13:00 – 16:30) (Fully Booked)

Online Course

11 & 12 June 2020 (2 x sessions 09:00 – 12:30) (Fully Booked)

Online Course

11 & 12 June 2020 (2 x sessions 13:00 – 16:30)

Online Course

Covid19: The Reality: Workplace Matters After Lockdown

10 June 2020 (09:00 - 12:30)

Interactive Online Course

Retrenchments

11 June 2020 (09:00 - 12:30)

Interactive Online Course

The OHS Act and the Responsibilities of Management

25 & 26 JUNE 2020 (2 x sessions 09:00 – 12:30)

Interactive Online Course

 

 Our Clients 

 

Android App On Google Play

Android App On Google Play