LABOUR LAW ARR 214 Theme 13
THEME 13 D I S M I S S A L : O P E R A T I O N A L R E Q U I R E M E N T S � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � S E E A D D I T I O N A L M A T E R I A L F O R R E L E V A N T C A S E L A W .
THEME 13 (LEARNING OUTCOMES) • Know and comprehend the meaning and extent of the concept of operational requirements. • Know and comprehend the meaning and extent of the prescribed process and consultation between the affected parties. • Be acquainted with matters pertaining to disputes about the fairness of dismissal based on operational requirements • Be acquainted with matters relating to possible penalties/remedies penalties/remedies • Discuss the application of operational requirements through case law • Distinguish between a section 189 and 189A process.
THEME 13 (INTRODUCTION) • Commonly referred to as retrenchments. • Operational requirements refer to circumstances such as technological changes in company which result in posts becoming redundant, downturn in economy necessitating retrenchments and closure, necessitating retrenchments and closure, relocation/sale and transfer of business. • Sect 189 governs minor and major retrenchments and sect 189A also governs major retrenchments. (LRA)
THEME 13 (SECT 189 I) • If employer contemplates dismissing one/more employees for reasons based on its operational requirements, consultation must take place. • Hierarchy of consulting parties with whom employer must consult is as follows: (See Aunde -case) o Any person who has been identified as consulting party in collective agreement/workplace forum. o Any registered trade union whose members are likely to be affected by proposed dismissals or any registered union whose members are likely to be affected by proposed dismissals as well as a workplace likely to be affected by proposed dismissals as well as a workplace forum, or only a registered union if no workplace forum exists. o If no such trade union, employees likely to be affected or their representatives. • Employer must issue written notice to other consulting party, inviting it to consultation.
THEME 13 (SECT 189 II) Notice must disclose all relevant info, including: • Reason for proposed dismissals. • Alternatives considered before proposing dismissals and reasons for rejecting alternatives. • Number of employees likely to be affected and job categories in which they are employed. • Proposed method for selecting which employees to dismiss. • Time when, or period during which, dismissals will take effect. • Severance pay proposed. (Sect 41 of the BCEA deals with this aspect. If employee unreasonably refuses offer of employer i.r.o. Alternative employment in company or with other employer, employee forfeits right to severance pay. Severance pay is usually one week’s salary for every year of continuous service.) • • Any assistance the employer proposes to offer. Any assistance the employer proposes to offer. • Possibility of future re-employment • Number of employees employed by employer. • Number of employees dismissed for operational requirements during preceding 12 months.
THEME 13 (SECT 189 III) • Consulting parties must try to reach consensus on the following aspects: o Appropriate measures to: � Avoid dismissals. � Minimise the number of retrenchments. � Change the time of the retrenchments. � To mitigate adverse effects of retrenchments. o The method of selection of employees to be retrenched. o Severance pay for employees. • Employer must allow other consulting party to make representations about issues under consultation. Employer must consider representation and must react upon it, and if employer is not in agreement with representation, he must provide reasons for disagreement. If representation was made in writing, it must be responded to in writing. • After consultation, employer must select employees to be dismissed in accordance with agreed selection criteria or fair and objective criteria.
THEME 13 (SECT 189A) • Applicable to employers employing more than 50 employees and who contemplate dismissing number of employees for operational reasons. • Applies if employer contemplates dismissing: o 10 employees where employer employs 50-200 employees o 20 employees where employer employs 201-300 employees o 30 employees where employer employs 301-400 employees o 40 employees where employer employs 401-500 employees o 50 employees where employer employs more than 500 employees o 50 employees where employer employs more than 500 employees • Sect 189A applies either if employer dismisses abovementioned numbers at same time or at different times during 12-month period. • Consulting parties may request CCMA to appoint facilitator to assist parties in consultation. • If consulting party does not follow fair procedure, Labour Court may be approached for an order. • Dismissed employee must be paid a severance package (at least one week’s remuneration for each completed year of continuous service) additional to salary.
THEME 13 • CCMA has jurisdiction to concilliate dispute. • Labour Court has jurisdiction to adjudicate matter. • Normally only the Labour Court will have jurisdiction to arbitrate matter (after concilliation has failed) except if it was only concilliation has failed) except if it was only 1 employee who was retrenched or if parties have consented to jurisdiction of CCMA. In the 2 lastmentioned cases the CCMA will therefore be able to arbitrate matter.
NEXT LECTURE • Transfer of business
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