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Employers are reminded by the Labour Law of the factors that render dismissals for operational requirements (retrenchments) fair and unfair. Despite this, employers continue to get it wrong and, in many cases, they end up paying a very high price for it. In order to win a retrenchment case at the CCMA or Labour Court, the employer must fulfil its onus of proving that the retrenchment was fair in all respects.

It is the employer who has the duty of proving that there was a genuine and valid reason for retrenching staff in the first place.

Furthermore, they must prove that the decision between which employees will be retrenched and which will not was arrived at fairly. The retrenchment procedure, as laid down in the Labour Relations Act (LRA), must be followed properly and in good faith by the employer.

The employer must also prove that he/she has shared with the targeted employees (or their representatives) all documentation and other information pertinent to the retrenchment.

Despite the fact that the retrenchment procedure is clearly spelt out, employers are still being caught out at the CCMA and in the Labour Court for failing to follow procedure.

A good-faith consultation is thus a core requirement of the retrenchment procedure.

There are a number of possible reasons for the fact that employers are still not complying with dismissal law, including:

• Employers hear about the law but do not believe it;
• They know the law well enough but do not believe it will be applied to them;
• The operational circumstances of the employer are so dire that the pressure distracts the employer from the legal aspects of the retrenchment;
• There is also a mistaken belief that, if there is a good reason for retrenchment, the court will be lenient on the procedural side of the case;
• Employers misuse so-called retrenchments to get rid of undesirable employees. As their priority is getting rid of such employees, the legal requirements are given little consideration;
• Employers are given poor legal advice regarding retrenchment law and implementation strategy.

Although the courts have become stricter over time in applying retrenchment law, employers still implement retrenchments without giving thought to labour law compliance. The courts see retrenchments as no-fault terminations. This means that the employee is losing his/her job through no fault of his/her own. In addition, the unemployment rate in South Africa is extremely high and it is very difficult for retrenchees to find new jobs.

For these reasons the courts have no hesitation in protecting the rights of retrenchees and making employers pay heavily where they deviate from the law.

Before you embark on any retrenchments, contact us to handle your retrenchments in a professional legal manner.

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