Retrenchments: Fair or Unfair...?

The golden rule..... Consult! Consult! Consult!

A retrenchment will immediately be deemed unfair, should it be found that the decision had been
made by the Employer prior to a consultation with the employees affected. Regardless of the reason
for operational requirement dismissals, be it for economic, structural or technical reasons, a failure
to consult and engage with the employees will put the Company at great risk.

Section 189 of the Labour Relations Act sets out the A-J rules to follow in the event of
retrenchments, but if the employees were not given an opportunity to give suggestions as
alternatives to retrenchment, the entire procedure including any substantively fair reasons for the
required dismissal, is null void .

Although one of the 7 habits of highly effective people is to start any project “with the end in
mind”.... applying this during a retrenchment procedure can be detrimental to any business. Often
what happens during retrenchments is Companies start the procedure, knowing exactly what will
result, the number of employees that will be affected, who they will be, when will be their last
working day and the amount of severance pay they will receive. Handling operational requirement
dismissals in this manner is a one way ticket to the CCMA.... and it won’t be a cheap ride!

The whole reason for holding the “meaningful consultation”with the affected staff is to gather their
input, ideas and alternatives and consider these in making the final decisions.

Ultimately, the employer has the final say, (after disclosure of all relevant information), regarding
the way forward of the affected departments or business units but only once they have consulted
with their people.

After all, nobody knows the ins and outs quite like the employees in those roles and they just might
have all the answers.....

Compiled by Nikki Emmenes