Employers: Be wary of retrenching employees without experienced specialist employment advice and assistance
By Fadia Arnold
We have officially reached the one-year anniversary of South Africa’s first hard lockdown in respect of Covid-19. 2020 was without a doubt a difficult year for all South Africans or foreigners working in South Africa, whether it be Employers and Employees.
Hardest hit, as we know was the travel and tourism industry and the food, restaurant and liquor industries. Not to say the rest of the nation survived unscathed, retrenchments were implemented en masse in all sectors due to Covid-19.
What I have personally noticed as a labour lawyer, are that certain Employers have been trying to cut corners by not following employment legislation as set out in the Labour Relations Act 66 of 1995 (hereinafter referred to as “the LRA”) when retrenching staff.
Why should an Employer financially invest in ensuring the retrenchment process is followed correctly? Certain Employers, small, medium and large, in my experience, do not want to invest in hiring an outside employment law specialist who is experienced in implementing and overseeing section 189 and 189A of the LRA and the process of retrenchment from start to finish.
Yes, it is costly to outsource, however the Employer can then be rest assured the retrenchment process was done correctly and any unfair retrenchment disputes to the Commission for Conciliation and Mediation and Arbitration (hereinafter referred to as “the CCMA”) or the relevant Bargaining Council (hereinafter referred to as “the BC”) or the Labour Court may have very little or no merit at all because procedure was followed as per the LRA.
Frequent consequences of Employers not investing in legal assistance from day One Frequently in my experience, what happens when Employers attempt to implement the retrenchment themselves to save costs, almost all of them, in my experience fail in proper procedure particular and then revert to me for assistance when the Employee or Employees have referred an unfair retrenchment dispute to the CCMA, the BC or the Labour court putting the Employer at risk for a possibility of the unfairly retrenched Employee or Employees being awarded 12 months’ salary as compensation.
The costs of a labour specialist attorney assisting at this stage is extremely costly, when all the Employer had to do to avoid costly litigation after the fact is invest in the process being done correctly from commencement.
I would implore all Employers to reconsider the manner in which they deal with retrenchments which are still occurring en masse in 2021 with a rumored Covid-19 3rd wave to hit in coming months. Get your ducks in a row and contact a labour specialist attorney with experience and invest in the process to avoid costly financial implications if the dispute proceeds to litigation, particular in the Labour Court.
Fadia Arnold is a Labour Law Attorney at Arnold Law Legal Consultancy