Joint Consensus Seeking Process!
Last week we looked at the why and the when MISA must preferably know before you that there might be a possibility of dismissals as a result of your Employer’s operational requirements. The answer lies in the Employer’s contemplation of possible dismissals when there are bona fide reasons for restructuring.
The Labour Relations Act 66 of 1995 (LRA) in section 189 (3) places a duty on the employer and MISA to “…engage in a meaningful joint-consensus seeking process and attempt to reach consensus…”.
Meaningful Joint Consensus Seeking Process
The operative words in this phrase is ‘consensus seeking’ with no pre requisite of ‘consensus-reaching’. There is a popular belief that when two consulting parties engage during a restructuring process that there should be consensus. Confirmation lies in the outcome of the Labour Court’s judgment in UPUSA v Grinaker Duraset  2 BLLR 190 (LC), where it was noted that the Act does not require parties to really reach consensus, in fact, the labour Court held that seeking consensus is satisfactory.
During the past conglomerate of restructurings and closures in, specifically the Retail Motor Industry, the question was raised numerous times whether MISA did everything possible to save jobs and secure employment when consulting on ways to prevent or limit dismissals. The answer is simple, we attempt to seek consensus and we were not always successful.
Legal Obligation to Reach Consensus
I can safely and confidently confirm that if there was a legal obligation to reach consensus, it would have been to the benefit of many employees who, for instance, have long years of service; are multi-skilled, but as result of the redundancy of their position, they are dismissed.
MISA, as a norm, during a restructuring process consult on aspects such as inter alia bumping, reduction in salary or short time, as an alternative to dismissal. We are not always successful and there is not always consensus.
The question is, does MISA have the power to force the other party to consent? The answer is no! The reality is that we do not have a legal standing to insist on the acceptance of our proposals during the meaningful consensus seeking process, the only pre-requisite is that the parties should have engaged in a proper joint consensus-seeking exercise.
I need to stress the fact that, when you are confronted with a notice of retrenchment, MISA will be able to objectively engage in a meaningful consensus-seeking process and we will attempt to reach consensus that will benefit you.
The buck doesn’t stop with the receiving of a notice! We need you to help us, to help you!
Engage with us, share your ideas and fears with us. It is our duty to stay objective and to engage throughout the process seeking consensus on limiting dismissals.
MISA – Just a phone call or an e-mail away!
Kindly utilise the following e-mail addresses and links for assistance during this time:
Employer UIF/TERS Submissions UIFClaim@ms.org.za
Legal/Labour-related enquirie Legal@ms.org.za
* Legal Reception 0114763920
MISA Benefit claim-related enquiries Claims@misa.org.za
Any other enquiries Info@ms.org.za
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