2020 has already been a very challenging year for the South African and global labour force. The coronavirus pandemic is not only a danger to our health, but our jobs and livelihoods as well.
Many companies had to slow down or stop operations altogether to comply with the various lockdown regulations. This led to a loss of revenue which is now resulting in retrenchments or closure of businesses.
Retrenchment is a traumatic and stressful experience for a worker, but as hard as it is, it is your responsibility to know what your rights are during the process as an individual or a member of a trade union.
Firstly, when an employer announces retrenchments, they are not allowed to dismiss any affected employees for a period of 60 days from the date on which the notice was served. You must also take note that before being retrenched, an employer must follow fair procedure and all the requirements as stated in Section 189 of the Labour Relations Act (LRA):
- There must be consultation before workers are retrenched. This can either be with the workers themselves or representatives from a trade union.
- Reasons for the proposed retrenchments must given
- The employer must provide alternatives that they have considered before proposing the dismissals, and the reasons for rejecting each of those alternatives
- There must be an attempt to reach a consensus, this means that all parties should reach a general agreement regarding how the retrenchment process will proceed.
- The employer must disclose information that is relevant to the proposed retrenchments. This includes but is not limited to a list of all the affected persons and their positions job roles, the company’s finances as proof of financial stress etc.
- The employer must allow trade unions or workers to make representations. They must be allowed to present alternatives to retrenchments such as introducing short times or moving workers to other branches if those options are available to them.
- The employer must elaborate on the proposed method that will be used to select the affect persons
- At timeline or period of when the proposed retrenchments are likely to come into effect must be provided by the employer
- Severance pay or retrenchment packages that are available to the dismissed workers must also be tabled during these discussions.
If you belong to a union and the union believes that an employer is not following the correct procedure then a written application may be brought to the Labour Court to make an order against the employer where the Labour Court has the power to compel the employer to:
- Comply with a fair procedure.
- Not dismiss an employee prior to complying with fair procedure.
- Reinstate any employees who have since been dismissed until the employer has complied with a fair procedure.
- Pay compensation if any of the above orders are not seen to be appropriate.
Understanding your rights in the workplace makes it easier to fight for better working conditions and any other issues that may arise such as retrenchments.
During these uncertain times, UASA encourages all workers to revisit the Labour Relations Act and the Basic Conditions of Employment Act and learn more about their rights in the workplace. Whether you are already retrenched or in the process of being retrenched, labour bodies such as the CCMA or the Labour Court exist to protect you as a worker as well as making sure that you are not unfairly dismissed from your job.