An employer intending to implement redundancies (or “retrenchments”) for reasons based on the employer’s operational requirements must engage in a meaningful consultation process to seek consensus with employee representatives or employee nominated bodies in respect of ways to avoid the retrenchments, minimise the number of employees affected, change the timing and generally mitigate the effects of the dismissals (section 189 of the Labour Relations Act No 66 of 1995). Recently additional obligations have been introduced in respect of employers who have 50 or more employees (large employers), which allow either the employer or the consulting parties representing the majority of the employees to request the appointment of a facilitator. If a facilitator is appointed the employer may only give notice to terminate the contracts of employment after a period of 60 days, otherwise a 30-day period will apply. Additionally, the employees of large employers may now give notice of a strike to attempt to influence the employer, or they may approach the Labour Court if they feel that the retrenchment process has been procedurally and/or substantively unfair.

Source: Priyesh Modi, KLegal South Africa email: [email protected]