Re-employment after Retrenchment

Re-employment after Retrenchment

The past couple of months’ our days merged into Retrenchment consultations, enquiries, legal arguments and a number of issues all relating to retrenchments!

One aspect parties must consult on, in terms of the Labour Relations Act 66 of 1995 (LRA), specifically section 189(3)(h), is the possibility of future re-employment. One of the most obvious reasons is that a dismissal based on operational requirements (retrenchment) is a “no fault” dismissal. The dismissal is not as a result of conduct or incapacity, but the employers’ operational requirements.

Consultation – a Procedural Prerequisite!

The LRA does not by default give an employee the right to re-employment, but provides for consultations on the possibility. This issue is part and partial to the procedural process that must be fair and objective.

In SASBO v Standard Bank of SA [2011] JOL 26928 (LC) the court stated that: “should an Employer fail to disclose and consult on the possibility of re-employment, the retrenchment may be regarded as procedurally unfair”.

During the consultation process between the Employer and MISA (or even you as employee if not represented) an agreement may be reached regarding re-employment and the conditions under which it will be done, for instance, the time period of possible re-employment, as well as whether the employer will take the responsibility to contact you, as employee, or whether the responsibility is yours to stay in touch regarding positions that become available.

Agreement without Compliance

In Motor Industry Staff Association and Another v Stanmar Motors (Pty) Ltd and Others (JR 1326/2011) [2012] ZALCJHB 84, in the Labour Court, one such dispute was raised. In summary, the arbitrator found that Stanmar Motors did not commit an Unfair Labour Practice in terms of Section 186 (2) (C) of the LRA, when they did not re-employ one of our members in terms of an agreement of re-employment reached during retrenchment consultations. MISA took the matter on review.

MISA requested that the Labour Court find that the employer breached the terms of a written Collective Retrenchment Agreement, concluded between MISA on behalf of our member and Stanmar Motors, when they failed to offer and re-employ our member (one of the three sales manager positions that became available during the 12 month period), thereby resulting in an unfair labour practice as per the LRA.

The Court held in paragraph 32 that “It is clear that the arbitrator misunderstood the contractual obligation on the employer. It is trite law that failure to re-employ when there is a formal binding written agreement, amounts to an unfair labour practice, in terms of section 186 (2) (C) of the LRA. (See NAAWU v Borg-Warner SA (Pty) Ltd (1994) 15 ILJ 509 (A) at 519). The onus rests on the applicants to show that there is an obligation on the employer to re-employ him. It is common cause there was a written agreement in which the employer under-took to re-employ [name omitted] should a position become available for which he qualified. The action of the employer to consider other people to fill the three positions of sales manager, instead of [name omitted], amounted to a breach of the written agreement and was unfair. (See NAAWU v Borg-Warner SA (Pty) Ltd).”

Conclusion

Should there be an agreement between MISA and your employer that you should be re-employed, the employer is bound by the agreement, as well as the conditions of that agreement. Bear in mind that, as per the judgment, “the onus rests on the applicants to show that there is an obligation on the employer to re-employ him.” (Paragraph 32)

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 enquiries                    Legal@ms.org.za

*  Legal Reception                                           0114763920

MISA Benefit claim-related enquiries          Claims@misa.org.za

Any other enquiries                                        Info@ms.org.za

Website                                                             www.misa.org.za

Mobile App                                                      https://onelink.to/w9a7ku

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