The current Covid-19 pandemic and the inevitable country lockdown introduced many hardships for all- businesses and employees alike.
Recently whilst conversing about current affairs, my friend quoted to me the President when he stated that: 'The burden of the lockdown has been most severe for those least able to bear it' and I could not agree more.
During these unprecedented times, many businesses found themselves struggling to maintain economic operations, as a result, a number of employers are legitimately left with no other viable option but to "retrench" some of their stuff. This is already taking place and is evidenced by a number of people who have been "cut-off" or let go from their employ. The recent rise in the number of people currently visiting the CCMA as widely reported may be directly or indirectly linked to these "retrenchments". Just to enhance the effects of this pandemic and the lockdown on peoples job security, I lately often encounter statements and opinions Across social media platforms along these lines: 'You're lucky if you still have your job'. How unfortunate.
It is a good thing that people do go to the CCMA after being "retrenched" if they have queries- it is within their rights, the very same way that businesses can retrench, actually, this legal entitlement is endorsed by section 189 of the Labour Relations Act 66/1995- however, proper fair and lawful procedure for retrenchment must be followed, as a result, your employer cannot just "arbitrarily" dismiss you and then claim "retrenchment".
Retrenchment is a consultative process whereby the employer reviews its business needs, operational requirements and as a last resort, it may lead to the reduction of employees. Few steps need to be followed:
Consultation- This must take place when the employer contemplates retrenchment
Notification- The law also requires that the employer disclose all relevant information to the employees or their representative unions.
Feedback- The employer must give all the affected employees and opportunity to make representations and the employer must then respond to them.
Selection Criteria- After consultation, the employer may then select who to retrench based on the criteria agreed upon, if there was no such criteria agreement, the selection to be used must be fair and objective one- normally, employers tend to use the Last In First Out principle.
Notice of termination- During this step, the employer must send out notices to selected employees.
Payments- All the retrenched employees are entitled to a severance pay if they are retrenched for operational requirements, also outstanding leave due and the notice pay.
We hate to say it, but due to the sharp economic effect of this pandemic, a number of employers may happen to avoid the somewhat lengthy legal retrenchment process. So if you as an employer are perhaps contemplating retrenchment, or you are an employee who has been "arbitrarily" retrenched, perhaps you notice that some of the steps mentioned above were not followed, I suggest that you speak to a labour law expert. Feel free to approach us for practical help during this unprecedented times- you have rights.