If you must retrench staff, here’s how to do it

TIMES are tough. Factors such as the increasing fuel price, impending new minimum wage and the competitive business landscape have many companies feeling the pinch and exploring creative ways to minimise costs and maximise profits. Retrenchment is one unfortunate option under consideration when it comes to cutting costs. However, not all organisations are fully aware of the impact of retrenchment for staff and their business.

Retrenchment is a lengthy and arduous process, weighed with risks, and both moral and legal considerations that businesses need to examine before embarking on this decision. Although there are many instances where it is unavoidable, businesses should ensure retrenchment is their absolute last resort.

Reasons to retrench Workforce Staffing Solutions industrial relations director Tebogo Moalusi, says it’s vital for businesses to prove that their reasons for retrenchment are valid and legitimate.

“The Labour Relations Act dictates that retrenchments need to be shown as fair, objective and a business’s last resort. Legally, retrenchments may only be affected if a business is no longer economically sustainable, a restructure necessitates them or if technology – implemented for efficiency reasons – results in positions becoming redundant,” says Moalusi, adding that failure to meet any one of these reasons for retrenchment can land a business in hot water with the CCMA or Labour Court. Considering all options: Moalusi remarks that businesses need to engage with their staff in a collaborative and constructive manner to ensure a consensus is reached, deeming retrenchment to be unavoidable and the only viable option.

“Discussion is key. A staff member or group of employees may have feasible ideas worth exploring to avoid retrenchment. Where no alternatives can be realistically found, the business needs to communicate this along with all the relevant details such as severance package entailments, processes to be followed, and what manner of support the business is willing and able to provide following termination of employment.”

On a cautionary note, Moalusi advises that employers forced into a position where retrenchments are inevitable need to follow the proper procedures and engagement channels, as laid out by the LRA. “Failure to do so could lead to a termination being considered an unfair dismissal, which may result in significant penalties of up to 12 months’ salary per individual.” How to retrench:

Where an organisation has investigated alternatives to retrenchment through discourse with staff – and possibly even engagement with employment specialists and legal counsel, they then need to proceed according to LRA guidelines. This protects their own interests, while ensuring that retrenched staff are treated with dignity and respect.

Says Moalusi, “There are many ways that businesses can provide support and assistance to retrenched staff beyond the prescribed financial compensation. This could include providing references, offering supplementary training or making resources available for them to seek new employment, including time off for interviews.”

In the event that retrenchment is necessary, there are basic steps organisations can follow to adhere to legal requirements and maintain open, clear communication channels: Ensure the reasons for proposed retrenchments are clearly and concisely communicated. Provide details for alternatives considered by the organisation. State the number of employees likely to be affected.

List job categories.

Specify method for selecting which employees to retrench. Provide timeline.

Specify severance packages. Assistance for employees.

| WITH the advent of the recent Constitutional Court judgment and the increased use of cannabis, we are finding many employers being faced with employees who feel they may now partake in cannabis as it is “legal”.

It must be known that the Occupational Health and Safety Act specifically says no employer may allow any person to enter or remain in the workplace if they appear to be under the influence of liquor or drugs, or to be in possession of, partake in or offer others intoxicating liquor or drugs.

This injunction is far-reaching and is in no way negated or changed by the court ruling. Every employee must be made aware that being under the influence of marijuana at work could lead to accidents and if detected will lead to disciplinary inquiries which will probably lead to dismissal.

More often than not, the effects of dagga remain in the system longer than alcohol and do in fact impair the individual user.

Any danger that exists at the workplace is vastly exacerbated when someone has been using dagga. We also often see that dagga is smoked together with other drugs which makes it a lot more dangerous at the workplace. Cannabis is classified as a hallucinogen, which does often translate into a depressant for the central nervous system.

Dagga can affect performance and safety and is dangerous when a person has to use machinery or is expected to drive. Most results show us that dagga affects motor co-ordination and reaction time.

Just because the smoking and partaking in the ingestion of cannabis is now legal, it does not make it legal at the workplace. Depending on the amount of dagga taken, the effects could last anything up to 12 hours, especially if ingested and not smoked.

Employers need to ensure that they have policies in place carefully outlining the negativity of alcohol and drugs and these policies should outline the disciplinary action that will be taken if the presence of the drug is detected.

These workplace policies must be made known to every employee and it is recommended that these employees personally sign copies of the policies to indicate they know and understand the policy and that they will abide by the rules.

An employee will not be able to use the defence that the dagga is now legal.

Alcohol being legal does not excuse any employee arriving at work intoxicated. Even the possession of dagga at work should lead to a disciplinary inquiry. It is well known that after alcohol, dagga is probably the most abused substance in South Africa.

Now that dagga is legal it might be useful to inform the workforce that if any employee has a particular problem with dagga use, they can come forward and, as with alcohol abuse, ask for help from the company.

As the workplace becomes more and more stressful and pressure is put on employees daily, we find employees often turn to alcohol and drug abuse after work.

The effects of this abuse in the evening or after the work shift can still be seen the next day or on the next shift. These symptoms will lead to an investigation and often end up in the loss of employment.

It is useful to form a committee at the workplace in fashioning the intoxicating substances policy.

There are examples where employees have felt they are part of the solution and structure the committee to reach out to those who are using the substances. It is now vital for every employer to raise the topic at the workplace and to ensure every employee, from management down, is subject to the same rules and regulations. Every employee who is impaired or intoxicated will face the same risk of dismissal.

Employers also face prosecution if they don’t take action in order to avert accidents at work. It is common practice for certain categories of employees who celebrate big sales or entertain clients to partake in intoxicating substances. These employees should be encouraged not to drive and not to return to work after such events.

To sum up, the use of any intoxicating substance is not acceptable in any circumstances when it will lead to intoxication at work.

Recently our attorneys’ firm has received dozens of queries from employers about the recreational use of dagga during the lunch hour or even in between shifts. Employees argue that the minuscule amount of a few puffs does not in any way interfere with their working ability.

Our advice remains that even the smallest amount is not acceptable at the workplace and cannot be condoned in any form by the employer.