Podcast
Questions and Answers
An employer can retrench employees solely to increase profits.
An employer can retrench employees solely to increase profits.
True
Substantive fairness in retrenchment does not require a valid operational requirement for dismissal.
Substantive fairness in retrenchment does not require a valid operational requirement for dismissal.
False
Technological reasons for retrenchment may include the introduction of new technologies that make some jobs redundant.
Technological reasons for retrenchment may include the introduction of new technologies that make some jobs redundant.
True
Procedural fairness in retrenchment is not concerned with notifying employees about potential job losses.
Procedural fairness in retrenchment is not concerned with notifying employees about potential job losses.
Signup and view all the answers
Structural reasons for retrenchment are related to changes in labor laws that affect hiring practices.
Structural reasons for retrenchment are related to changes in labor laws that affect hiring practices.
Signup and view all the answers
Employers must explore all reasonable alternatives before resorting to retrenchment for cost-saving purposes.
Employers must explore all reasonable alternatives before resorting to retrenchment for cost-saving purposes.
Signup and view all the answers
Retrenchment can be executed without any form of consultation with employees.
Retrenchment can be executed without any form of consultation with employees.
Signup and view all the answers
The court has indicated that there is no distinction between operational requirements during a business crisis and a successful business wanting more profit.
The court has indicated that there is no distinction between operational requirements during a business crisis and a successful business wanting more profit.
Signup and view all the answers
An employer must provide a notice to consult when contemplating retrenchment.
An employer must provide a notice to consult when contemplating retrenchment.
Signup and view all the answers
The notice to employees must include only the number of employees likely to be affected.
The notice to employees must include only the number of employees likely to be affected.
Signup and view all the answers
Contemplation by an employer means they are actively planning to implement retrenchments.
Contemplation by an employer means they are actively planning to implement retrenchments.
Signup and view all the answers
An employer is obligated to explore solutions before considering retrenchment.
An employer is obligated to explore solutions before considering retrenchment.
Signup and view all the answers
Severance pay is not a requirement to include in the notice to employees.
Severance pay is not a requirement to include in the notice to employees.
Signup and view all the answers
Alternatives to retrenchment do not need to be mentioned in the notice.
Alternatives to retrenchment do not need to be mentioned in the notice.
Signup and view all the answers
If an employer considers retrenchment, they must send the notice before consulting with the employees.
If an employer considers retrenchment, they must send the notice before consulting with the employees.
Signup and view all the answers
The possibility of future re-employment must be included in the consultation notice to employees.
The possibility of future re-employment must be included in the consultation notice to employees.
Signup and view all the answers
Section 188(1) of the LRA states that operational requirements of the employer can be a reason for fair dismissal related to retrenchment.
Section 188(1) of the LRA states that operational requirements of the employer can be a reason for fair dismissal related to retrenchment.
Signup and view all the answers
Consultation is required only when there is a collective agreement in place.
Consultation is required only when there is a collective agreement in place.
Signup and view all the answers
Section 189A of the LRA applies only to employers who employ fewer than 50 employees during retrenchment processes.
Section 189A of the LRA applies only to employers who employ fewer than 50 employees during retrenchment processes.
Signup and view all the answers
The hierarchy of consulting parties during dismissals is universally accepted without controversy.
The hierarchy of consulting parties during dismissals is universally accepted without controversy.
Signup and view all the answers
The Code of Good Practice published in 1999 applies to misconduct and incapacity dismissals.
The Code of Good Practice published in 1999 applies to misconduct and incapacity dismissals.
Signup and view all the answers
According to the 1999 Code, retrenchments are considered no-fault dismissals.
According to the 1999 Code, retrenchments are considered no-fault dismissals.
Signup and view all the answers
Employers must consult about alternatives to dismissal according to Section 189(2).
Employers must consult about alternatives to dismissal according to Section 189(2).
Signup and view all the answers
The LRA does not impose any procedural obligations on employers during retrenchments.
The LRA does not impose any procedural obligations on employers during retrenchments.
Signup and view all the answers
Severance pay must be included in the consultation agenda regardless of the circumstances.
Severance pay must be included in the consultation agenda regardless of the circumstances.
Signup and view all the answers
Consultation must always result in a consensus between the employer and employees.
Consultation must always result in a consensus between the employer and employees.
Signup and view all the answers
Severance pay is regulated under Section 41 of the BCEA.
Severance pay is regulated under Section 41 of the BCEA.
Signup and view all the answers
Obstructive behavior by employees may assist in reaching a fair consultation outcome.
Obstructive behavior by employees may assist in reaching a fair consultation outcome.
Signup and view all the answers
Economic, technological, structural, or similar needs of an employer are defined as operational requirements under Section 213 of the LRA.
Economic, technological, structural, or similar needs of an employer are defined as operational requirements under Section 213 of the LRA.
Signup and view all the answers
The Code of Good Practice on Dismissal Based on Operational Requirements was published after the year 2000.
The Code of Good Practice on Dismissal Based on Operational Requirements was published after the year 2000.
Signup and view all the answers
Workplace forums are the first parties to consult if present in the organization.
Workplace forums are the first parties to consult if present in the organization.
Signup and view all the answers
The parties involved in consultation are required to engage in a consensus-seeking process.
The parties involved in consultation are required to engage in a consensus-seeking process.
Signup and view all the answers
Consultation about severance pay is optional and can be overlooked without consequences.
Consultation about severance pay is optional and can be overlooked without consequences.
Signup and view all the answers
Employees may forfeit their severance pay if they unreasonably refuse alternative employment with the same employer.
Employees may forfeit their severance pay if they unreasonably refuse alternative employment with the same employer.
Signup and view all the answers
The Labour Court can determine the amount of severance pay during adjudication of retrenchment fairness.
The Labour Court can determine the amount of severance pay during adjudication of retrenchment fairness.
Signup and view all the answers
Section 189A applies when an employer employs fewer than 50 employees.
Section 189A applies when an employer employs fewer than 50 employees.
Signup and view all the answers
In a large-scale retrenchment, both parties can request the appointment of a CCMA facilitator for consultation.
In a large-scale retrenchment, both parties can request the appointment of a CCMA facilitator for consultation.
Signup and view all the answers
Strike action is permitted for resolving disputes about procedural unfairness.
Strike action is permitted for resolving disputes about procedural unfairness.
Signup and view all the answers
Disputes regarding severance pay should be referred to the Labour Court directly.
Disputes regarding severance pay should be referred to the Labour Court directly.
Signup and view all the answers
The distinction between small-scale and large-scale retrenchments primarily involves the number of employees affected.
The distinction between small-scale and large-scale retrenchments primarily involves the number of employees affected.
Signup and view all the answers
Study Notes
Self-Study Notes: Retrenchment
- Section 188(1) of the Labour Relations Act (LRA) allows operational requirements as a valid reason for 'ordinary' dismissals, including retrenchment.
- Misconduct and incapacity dismissals are not specifically regulated under LRA, with guidance provided by Schedule 8 (Code of Good Practice) instead.
- Sections 189 and 189A of the LRA specifically govern operational requirement dismissals, with 189A applying to large-scale retrenchments affecting employers with more than 50 employees.
- The Code of Good Practice on Dismissals Based on Operational Requirements, published in 1999, is applicable to retrenchments.
- Retrenchments are defined as no-fault dismissals, meaning employees are not responsible for job losses linked to operational needs.
- Operational requirements encompass economic, technological, or structural needs of an employer as per Section 213 of the LRA.
- Employers may retrench to increase profitability, as affirmed in Fry's Metals (Pty) Ltd v NUMSA (2003), yet must consult more extensively under such circumstances.
- Fair dismissals require both substantive fairness (genuine operational need) and procedural fairness (adhering to legal requirements).
- Substantive fairness necessitates exploring all reasonable alternatives before retrenching employees.
- Procedural fairness involves clear communication and consultation with affected employees, including:
- Issuing a notice about potential retrenchment
- Providing relevant information and conducting consultations
- Informing employees once retrenchment decisions are made
- Notice provisions under Section 189(1) demand that employers communicate intentions to consult with affected employees when considering operational requirements.
- The notification must include details on reasons for retrenchment, possible alternatives, number of employees affected, selection criteria, and severance pay.
- Consultation parties may include collective agreements, workplace forums, registered trade unions, or affected employees themselves, as outlined in Section 189(1).
- The consultation agenda must cover measures to avoid dismissals, selection criteria, and severance pay considerations as stated in Section 189(2).
- Consultation must aim for joint consensus but does not require unanimity; all parties must engage constructively.
- Failure to consult properly can lead to accusations of procedural unfairness in the retrenchment process.
- Severance payments, as per Section 41 of the BCEA, are handled separately, and disputes regarding them are resolved through the CCMA or bargaining councils.
- Section 189A specifies additional rules for large-scale retrenchments, establishing clear conditions for consultation and potential dispute resolution mechanisms.
- A CCMA facilitator can be appointed for large-scale retrenchments to assist in reaching consensus during consultations.
- Strike action regarding substantive unfairness is permissible in situations involving large-scale retrenchments, highlighting differences in treatment compared to small-scale retrenchments.
Studying That Suits You
Use AI to generate personalized quizzes and flashcards to suit your learning preferences.
Related Documents
Description
Explore the provisions regarding retrenchment as outlined in the Labour Relations Act, particularly focusing on operational requirements and the Code of Good Practice. This quiz covers the sections relevant to dismissals and their implications for both employers and employees. Test your understanding of retrenchment processes and their legal foundations.
