The Labour Relations Act 66 of 1995 (LRA) in section 189 (1) is the genesis of dismissals based on operational requirements and begins with “When an employer contemplates dismissing one or more employees for reasons based on the employer’s operational requirements, the employer must consult…”
The Merriam-Webster dictionary defines contemplate “to view or consider with continued attention : meditate on…to view as likely or probable or as an end or intention…ponder, meditate…” This is a mouth full, but it is clear that the legislator intended that when an employer consider or ponder over the possibility of dismissing some of its employees as a result of the operational requirements of the business, there must be consultation.
The Labour Court in Nyanga & others v Accolade Trading Co Ltd (1999) 4 LLD 40 (LC) reiterated that “[I]t could not be said that when an employer has already dismissed or has already decided to dismiss specific employees, he is still contemplating dismissing them”.
Subsection 1 set out who the consulting parties should be. The Collective Agreements concluded in the Retail Motor Industry only set out the severance package and does not speak to retrenchments and consultations. Your employer must therefore consult with your union, in this instance MISA.
To consult means to deliberate together and not merely informing someone. It is for that reason that the method of consultation is referred to as a joint consensus seeking process. A process in which the consulting parties endeavour to reach consensus on suitable measures to avoid or minimise the dismissals; to change the timing of the dismissals; to mitigate the adverse effects of the dismissals; decide on a criterion that is fair and objective in selecting the employees to be dismissed, as well as the severance pay for dismissed employees.
Employers must give written notice to invite MISA to consult. The operative word is invite to consult, and again not merely informing MISA after the fact of what was already decided and actioned.
To enable MISA to engage in a joint consensus seeking process, the notice must be informative and must reveal all relevant information regarding the employer’s contemplation and envisaged restructuring. Information such as ‘the reasons for the proposed dismissals; alternatives considered and why these alternatives were rejected; the number of employees likely to be affected and the job categories in which they are employed; the proposed method for selecting which employees to dismiss; the time when, or the period during which, the dismissals are likely to take effect; the severance pay proposed; any assistance that the employer proposes to offer to the employees likely to be dismissed; the possibility of the future re-employment of the employees who are dismissed; the number of employees employed by the employer; and the number of employees that the employer has dismissed for reasons based on its operational requirements in the preceding 12 months.’
MISA should know before you!
MISA members perceived MISA with scepticism and suspicion when they realised that MISA knew before them that there is a possibility of retrenchments.
Knowledge is power and you must know your rights. One of the rights envisaged in the LRA regarding dismissals, as a result of operational requirements, is that MISA must know before you! MISA must consult and engage in a joint consensus seeking process to avoid or minimise dismissals once the rationale of the envisaged dismissals have been investigated and found to be beyond reproach and bona fide.
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
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