Once your employer contemplates retrenchment, the provisions of Section 189 and 189A of The Labour Relations Act 66 of 1995 (LRA) must be adhered to
Consultation is vital to the procedures prescribed by the LRA, in that, the employer is required to engage in a meaningful joint consensus seeking processes to reach consensus prior dismissals based on operational requirements.
Section 189(1)(b)(ii) of the LRA provides that the employer must consult any registered trade union whose members are likely to be affected by the proposed dismissals.
The aforesaid consultation entails deliberating and reaching consensus on, amongst other things, the rationale behind the restructuring; the measures to avoid the dismissals, the selection criteria and lastly the severance pay outs. One of the criteria MISA always looks at, as a possibility is Bumping.(More about this next week)
Once called into a consultation and/or receiving a notice to attend a consultation, you must enquire whether your union has been notified and invited to the consultation. If NOT, insist on representation.
In a Nutshell: failure on the part of the employer to consult with your union may result in the retrenchment process being substantively unfair. You must insist on representation by your union