This unfortunate step is referred to as a ‘dismissal based on operational requirements’ in terms of section 189 of the Labour Relations Act (LRA) or, more commonly, a ‘retrenchment’. Our labour laws seek to achieve a speedy and effective resolution of all disputes. However, this is never as easy as it seems when a militant union is involved in the retrenchment consultation process.
The court, in the case of AMCU v Tanker Services (Pty) Ltd (LC) JS 148/16 (Unreported), on 7 June 2018 had to deal with a union that constantly delayed and made the retrenchment consultation process unbearable. The court relied on the following cases in order to rule on the matter before it:
The court in the Tanker Services case held decisively that ‘In so far as the procedure in a retrenchment is concerned, the LRA contemplates that the consultation process is one in which the parties jointly seek to avoid retrenchment and ameliorate its consequences’. It is not a process in which the employer party simply announces the decisions that it intends to implement – the employer must remain open to persuasion. Equally, union parties to the consultation are obliged to co-operate in achieving the objectives of the process. Of course, a union can and no doubt will bring whatever collective muscle it may have in order to influence the outcome of any consultation process, but the nature of the process is one in which active co-operation rather than obstruction is required. The court thereafter held that the retrenchment process adopted by the employer was procedurally fair.
SERR Synergy assists employers with regard to the preparation of the notice of invitation to consult in terms of the LRA to be served on a union or the employees. Our services include chairing the said consultation meetings between the employer, the union and the employees. We strive to ensure that the consultation meetings are dealt with in a fair, professional and prompt manner where no unnecessary or unreasonable delays by the union or the employees will be permissible.
About the Author: Jared Francis joined SERR Synergy in October 2016, and currently holds the title of KZN Labour Manager. He is an admitted attorney who has practised in KZN and Gauteng. He holds an LLB degree, a post-graduate Diploma in Industrial Relations and a post-graduate Certificate in Forensic Investigation from the University of KwaZulu-Natal. He also holds post-graduate Certificates in Advanced Labour Law, Corporate Law, Advanced Human Resource Management and Health and Safety from UNISA and has more than 10 years’ experience in the legal and industrial relations fields respectively.
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