I was recently approached by a man who has been working at a local factory, with a staff complement of more than a hundred, for almost twenty years.

Due to a change in operational requirements, management recently informed our reader and several of his co-workers that they were no longer able to employ them. He says some of his colleagues are now talking about going on strike.

He wants to know what his rights are and if striking is legal.

Dismissals due to operational requirements are categorised as “no fault” dismissals. In other words, the employee is not responsible for the termination of employment.

Due to the fact that retrenchment is a “no fault” dismissal, the Labour Relations Act (LRA) places particular obligations on the employer – most of which are directed at ensuring that all alternatives are explored and that the employee to be dismissed is treated fairly.

A consultation process must be followed, during which both the employer and the relevant employee are present. The purpose is to permit the parties – by way of a joint problem-solving exercise – to strive for consensus.

Any of the parties may request the Commission for Conciliation, Mediation and Arbitration (CCMA) to appoint a facilitator to assist during the consultation process. The latter is appointed in terms of regulations issued by the minister and will conduct the facilitation according to these regulations.

If one or more employees are selected for dismissal from a larger number of employees, the LRA requires that the criteria for their selection must be either agreed with the consulting party or, in the absence thereof, the selection of employees to be retrenched must be fair and objective.

Selection criteria that are generally accepted to be fair include length of service, skills and qualifications. The test for “fair and objective” will usually be satisfied by the “last in, first out” principle.

Persons dismissed for reasons relating to the employer’s operational requirements are generally entitled to severance pay of at least one week’s remuneration for each completed year of continuous service.

This minimum requirement does however not stop an employer from attempting to reach consensus on severance pay during the consultation period. The right of the trade union, through collective bargaining, to seek an improvement on the statutory minimum is also unlimited.

If an employee either accepts or unreasonably refuses to accept an offer of alternative employment, the employee’s statutory right to severance pay is forfeited.

Employees dismissed due to an employer’s operational requirements, should be given preference if the employer again hires employees with comparable qualifications.

The 2002 amendments to the LRA brought about significant changes to retrenchment laws. A new section has been inserted, which applies to employers with more than fifty employees.

The new section gives trade unions the choice of going on strike or referring disputes to the Labour Court for adjudication in respect of certain retrenchments. They cannot pursue both routes.

The right to strike in this context is limited to substantive issues and does not apply to the employer’s failure to comply with a fair procedure.

The right to strike does not apply where the employer employs fewer than fifty people or where the employer employs more than fifty, but intends dismissing less than the prescribed twelve-month threshold.

Send your labour and other workplace related questions to coetzee@fullstopcom.com.

Booysen & Rossouw Attorneys in Port Elizabeth specialises in labour related legislation. The firm also covers injury on duty cases as well as all other aspects of the law.

Issued by:

Full Stop Communications

Coetzee Gouws
041 368 4992
082 575 7991

On behalf of:

Booysen & Rossouw Attorneys