Industrial issues

JOB SHEDDING in presentday South Africa is continuing to be a frequent occurrence and, in some companies, even in large corporations, a few retrenchment exercises per year aren’t uncommon.

Retrenchments normally have saving costs as the objective, but mistakes by the employer often add dramatically and unnecessarily to the cost.

As a consultant also representing senior employees and being exposed to the type of mistakes so frequently made by employers when retrenching, one is continuously flabbergasted by the elementary nature of such mistakes. The question that begs an answer is how is it possible that, in the year 2015, an employer still believes that employees can be retrenched by merely giving them a retrenchment letter with the notice period starting immediately?

Or by thinking that the concept “prior consultation” means to notify an employee of his/her retrenchment as a fait accompli.

As per a recent retrenchment exercise at a financial institution, their human resources/industrial relations/legal functionaries prepared very thoroughly for the retrenchments, and the letters said all the right things – for example “envisaged” retrenchment, etc – but when the ill-informed very senior line managers conducted the consultation meetings, the employees were told of their retrenchments.

No wonder the employer was successfully interdicted. And the “well-prepared” exercise failed to realise that compliance with Section 189A was necessary, for example, and that a Section 189(3) letter – which they never issued – was of paramount importance.

By now employers should realise that their need to retrench is normally not questioned, but it is the procedure that they follow which is causing them to get costly awards to pay.

Surprising, though, is employers’ and their advisers’ defence of their unfair retrenchments, merely to feel aggrieved when Labour Court/arbitration awards become an expensive educational experience.

For example, in one case, the consult, the topics for consultations, the manner of consultation and, very importantly, the Section 189(3) written notification.

In substantiation and further explanation of typical employer mistakes, guidance can be taken from a Labour Court decision in the matter of Moodley and Fidelity Cleaning Services (Pty) Ltd.

With reference to Section 189’s provisions, the judge determined as follows: “The prescriptions of Section 189 were clear, notorious, well