Many people receive the nasty surprise of a retrenchment slip just before their companies close for the festive season.
If you are one of the people to find yourself in this situation, it is important to understand your rights under South African labour law. The Labour Relations Act – which includes the laws governing retrenchments - applies to all employers, workers, trade unions and employers’ organisations, except the National Defence Force, National Intelligence and South African Secret Service.
Our labour law is progressive and affords you a great deal of protection against unfair treatment at work. Your employer cannot arbitrarily retrench you at any time of the year without following due process. Before a company retrenches workers, it must explore alternatives to retrenchment. These may include offering you a job in another part of the business, cutting your hours back or offering voluntary retrenchment packages to the workforce.
There is a strict consultation process that employers must follow when they want to retrench employees. They must involve the affected employees, the workplace forum, and if there is one, the trade union or worker representative in these consultations.
The employer and these consulting parties must agree on ways of avoiding or minimising retrenchments; changing the timing of retrenchment; and assisting workers to reduce the effects of retrenchment. They must also come to agreement about choosing which workers to retrench severance pay. The employer must confirm these details in writing. Should your employer break these rules, there are a number of ways that you can seek redress. If you’re a member of a trade union, your union leaders might give the employer notice of a strike action if union members are being treated unfairly or if the employer hasn’t followed the correct processes before issuing retrenchment notices.
Finally, if you believe your employer’s retrenchment procedure is unfair, you may apply to the Labour Court, within 30 days after the employer’s notice. If the Labour Court agrees, it will order the employer comply with a fair procedure, prevent it from retrenching workers, and order it to award compensation to a worker. Be warned that a party that has already given notice to strike may not refer the dispute to the Labour Court.
Economic conditions remain tight in South Africa, which means that many companies will be looking to reduce their workforces as they move into the next year. But there are rules that they need to follow when they do so. If they don’t, they are guilty of unfair dismissal and you are well within your rights to seek help from your union, the CCMA or the Labour Court to seek redress.