For a dismissal – be it for misconduct, incapacity or operational reasons – to be fair, it has to be substantively as well as procedurally fair. In other words, there has to be a fair reason for the dismissal (substantive fairness) and how the dismissal takes place needs to be fair as well (in other words, it needs to be procedurally fair).
There is a distinction drawn between large-scale and small-scale retrenchments. A large-scale retrenchment is a dismissal of a specified minimum number of employees in relation to the size of the employer. If the employer retrenches:
• 10 employees, and they employ between 50 and 200, this is a large-scale retrenchment
• 20 employees, and they employ between 200 and 300, this is a large-scale retrenchment
• 30 employees, and they employ between 300 and 400, this is a large-scale retrenchment
• 40 employees, and they employ between 400 and 500, this is a large-scale retrenchment
• 50 employees, and they employ over 500, this is a large-scale retrenchment
Even if one were not to retrench the numbers above, s189A could still apply if the number of retrenchments anticipated at the time in addition to the number of retrenchments in the past twelve months is equal to the numbers listed above.
• Procedural fairness starts with the issuing of a notice of invitation to consult in line with s 189(3). This must be issued to parties who may be affected by the retrenchments :
• Any party required to be consulted with in terms of a collective agreement
• A workplace forum or registered trade union
• The employees themselves
The consultation is a consensus-seeking process and to finalise, the employer would need to show that there has been sufficient meaningful consultation on the items listed in s189(3) and in terms of s189A at least four consultations should be held and 60 days should pass before a dismissal being effected. Employers need to make sure that any retrenchment proceedings which they undertake in their company are both procedurally and substantively fair as – if they are not – they risk a negative outcome at the CCMA or Labour Court.
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