A large number of retrenchments take place despite the extreme amount of retrenchment during the past 10 years; and employers need to be more cautious than ever before implementing these. This is due to reports that the authorities want to reduce job losses more than ever. Labour law management consultants report.
Where conciliation has failed to resolve a retrenchment dispute, the Labour Relations Act (LRA) allows the CCMA and bargaining councils to arbitrate the dispute. This has made it easier for employees to oppose retrenchments. That is, due to the quicker and simpler processes at the CCMA.
Despite the strict retrenchment legislation employers are still having to pay large sums of money to employees who have been retrenched incorrectly.
- Failing to follow the retrenchment procedures.
- Retrenching for the wrong reasons.
- Using unacceptable criteria for deciding on which employees to retrench.
An exception is where the employer can show that the work performance of all employees has been:
- Precisely, accurately and fairly measured
- Recorded in writing
- Used fairly in deciding on which employees should be retrenched.
That is, the employer must:
- Implement proper performance appraisal exercises
- Arrive at accurate measurements of performance of all employees whose jobs might become redundant
- Be able to show that the appraisal ratings were arrived at objectively rather than resulting merely from the manager’s feelings towards the employee
- Have made it clear at the outset of the retrenchment procedure that work performance was going to be the criteria for selecting retrenchees.
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