Retrenchments should be a “last restort” says a labour law expert.
Pretoria – While the country is reeling from the effects of Covid-19 on the workplace and many employers feel the pinch financially, they still have to follow the law to the letter if they want to retrench workers.
This is according to labour law expert Leon du Plooy of Pretoria law firm Hartzenberg Inc.
The lockdown announcement in March has had a severe negative affect on the economy, and on businesses and jobs in South Africa.
According to employment surveys, employment declined by three million in the early phases of lockdown, with the most disadvantages most seriously affected.
In a newsletter in June, President Ramaphosa said he was aware of companies indicating their intention to retrench staff “because of heavy losses incurred over the past three months”.
Du Plooy said due to the financial strain, employers may resort to letting staff go, among steps taken in order to survive.
He cautioned, however, that fair procedure as set out in section 189 of the Labour Relations Act should at all times be followed. Even though fair reasons for retrenchment may exist at such times, an employer cannot stray from legal requirements.
He said an employer should not summarily terminate contracts but should consult with its employees and participate in a consensus-seeking process as set out in the act.
“The purpose of the process is to attempt to retain jobs as far as possible and only, as a last resort, to retrench the employees.”
He said that in the event that the employer did not follow fair procedure, a dismissal would be procedurally unfair and accordingly, the employee would have the opportunity to refer a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) or Labour Court and claim compensation.
In explaining what an employee facing retrenchment could do, Du Plooy said that from the inception, the affected person should endeavour to take part in the process so that consensus could be reached.
This would ensure that the employee can ask questions, request information and provide alternatives to retrenchments, with the purpose of retaining his or her job.
“An employer may only as a last resort retrench an employee if no viable alternatives to retrenchment exist.
“If the employee is retrenched and the procedure was not in accordance with section 189 of the act, the employee can, within 30 days from the date of retrenchment, refer the dispute to the CCMA or bargaining council for conciliation.”
The CCMA is dealing with tens of thousands of cases, and queues continue to form outside its doors, even with further easing of lockdown and return to economic activity in almost all sectors.
It has expressed concern over numbers of large scale and individual retrenchments as a result of the Covid-19 crisis.