This is a collection of notes on labour law topics: retrenchment and transfers. These were prepared in anticipation of the final exam with the help of an exam scope.
Revise the definitions of dismissals, unfair labour practices, and automatically unfair dismissals as
well as dispute resolution processes based on these issues.
Retrenchments
Recognise the operational requirements that could necessitate retrenchment.
Distinguish between procedural and substantive unfairness.
Steps an employer needs to take to ensure procedural and substantive fairness.
What must happen in large-scale retrenchments (circumstances where s189A applies as it
determines the dispute resolution pathways and remedies).
Interface between majoritarianism and retrenchment - discuss and apply the relevant case law.
Restructuring as an alternative (Aveng case - new - not examinable).
Be familiar with the four Constitutional Court judgments discussed in the lectures.
Know the facts and ratios of each of these cases.
Be in good standing with the example of the printing business.
Collective Labour Law
Do everything that is required, but pay special attention to:
Matters of Mutual Interest
Rights and Interests Disputes
The legal effect of collective agreements and majoritarianism
Definitions of industrial action
The distinction between protected and unprotected strikes
The consequences of participating in protected and unprotected strikes.
Section 188(1) of the LRA provides the employer’s operational requirements is a fair
reasons for an ordinary unfair dismissal.
Retrenchments are regulated by sections 189 and 189A of the LRA.
Section 189 - general provisions (dismissal based on operational requirements) -
applies small-scale retrenchment.
Section 189A - regulates retrenchment by employers with more than 50
employees - applies to large-scale retrenchments in addition to s189.
The 1999 Code is also our source of law.
Section 41 of the Basic Conditions of Employment Act (BCEA) - regulates severance
pay.
Introduction
A dismissal based on an employer’s operational requirements is a no-fault dismissal.
Item 2 of the 1999 Code provides that the employee is not responsible for the
termination of the employment hence no-fault dismissal.
According to section 213 of the LRA, ‘operational requirements’ -
Means requirements based on the economic, technological, structural or similar
need of an employer. Item 1 of 1999 Code provides more guidance -
Economic reasons - reasons that relate to the financial management of the
enterprise.
Technological reasons - refer to the introduction of new technology which
affects work relationships either by making existing jobs redundant or y requiring
employees to adapt to the new technology or a consequential restructuring of the
workplace.
Structural reasons - relate to the redundancy of posts consequent to a
restructuring of the employer’s enterprise.
And similar reasons - is used by the courts to either extend the meaning of
economic, technological and structural needs or to incorporate needs or reasons
that do not fit comfortably into one of these categories (the Constitutional Court
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