RETRENCHMENT – Is “bumping” a recognised criteria?

Last week we reiterated the necessity and importance of consultation prior retrenchment. Especially the obligation that is placed on your employer to consult with MISA prior embarking on retrenchments. One of the aspects highlighted that should form part of any consultation is the selection criteria.

The Labour Relations Act 66 of 1995 provides in section 189(7) two “types” of criteria namely an “agreed criteria” or a “fair and objective” criteria. One such criteria that should be considered, as held by the Courts, is bumping.

The term in relation to possible retrenchments refers to a process whereby you as employee may be “bumped” from your current position to that of another worker. Bumping is however not stand-alone criteria but is integrated in the LIFO principle, namely Last In First Out.

Horizontal bumping is self-explaining and occurs when you are bumped into another position within the same grade, position and/or same salary as a result of longer years of service, skills and/or education. Vertical bumping on the other hand is when your position became redundant and you are offered an opportunity to be bumped into a lower grade position with a lower salary.

Another bumping process, termed as “triangular bumping”, was introduced in a Labour Court dispute in Karachi v Porter Motor Group (C635/99) [2000] ZALC 64 (19 July 2000). Interesting enough MISA was in a limited capacity involved in the retrenchment process whereby we opposed the dismissal of one of our members who would have been bumped into a lower position without consulting MISA.

Triangular bumping in essence is the process whereby an employee in a higher grade bumped an employee in a lower grade (vertical bumping) out of her position. The latter then bumped an employee with less years of service employed in a similar grade (horizontal bumping).

In a Nutshell – Bumping should be considered as an alternative to retrenchment and failing to consider such, may lead to an unfair dismissal during a retrenchment process.

Remember MISA is just a phone call away!