3.1 Notice of proposed retrenchment
| 3.1.1 | An employer must notify all relevant consulting parties when that employer contemplates terminating the employment of one or more employees for reasons related to its operational requirements. |
| 3.1.2 | Consulting parties include any registered trade union of which any of the employees potentially affected by the proposed retrenchment are members, and the nominated representatives of any potentially affected employees who are not members of a registered trade union. |
| 3.1.3 | The notice referred to in 3.1.1 must be given in writing, as soon as possible after retrenchment is contemplated. |
| 3.1.4 | In the written notice, the employer must invite the consulting parties to commence consultations over the proposed retrenchment. At the same time, the employer must disclose all relevant information to the consulting parties. This information must include, but is not limited to the following: |
| 3.1.4.1 | The reasons for the proposed retrenchment; |
| 3.1.4.2 | The alternatives that the employer considered before proposing the retrenchment, and the reasons for rejecting these alternatives; |
| 3.1.4.3 | The number of employees likely to be affected and the job categories in which they are employed; |
| 3.1.4.4 | The proposed selection criteria to be used to determine which employees to retrench; |
| 3.1.4.5 | The proposed date of retrenchment; |
| 3.1.4.6 | The proposed severance pay; |
| 3.1.4.7 | Any assistance which the employer proposes to offer to the employees who are likely to be retrenched; |
| 3.1.4.8 | The possibility of the future re-employment of the retrenched employees; |
| 3.1.4.9 | The number of employees employed by the employer; and |
| 3.1.4.10 | The number of employees that the employer has dismissed for reasons based on its operational requirements in the proceeding twelve-month period. |
3.2 Appointment of a CCMA facilitator
| 3.2.1 | The employer, or the consulting parties representing the majority of the employees that the employer proposes to retrench may, within 15 days of the date of the employer’s notice of invitation to consult, request the CCMA to appoint a facilitator to facilitate the retrenchment process in terms of section 189A of the Labour Relations Act. |
| 3.2.2 | If a facilitator is appointed, the facilitator will assist the parties to the consultation process and will act in terms of the Regulations made by the Minister. |
| 3.2.3 | If a CCMA facilitator has been appointed and 60 days have elapsed from the date of the employer’s notice of invitation to consult: |
| 3.2.3.1 | The employer may give notice of termination to those employees selected for retrenchment on the following basis: |
| ▪ | One week, if the employee has been employed for six months or less; or |
| ▪ | Two weeks, if the employee has been employed for more than six months but less than twelve months. |
| ▪ | Four weeks, if the employee has been employed for twelve months and more. |
| 3.2.3.2 | A registered trade union or the employees who have received notice of termination may, in accordance with the provisions of section 189A of the Act, may either: |
| ▪ | Give notice of a strike in terms of the applicable provisions of the Act; or |
| ▪ | Refer a dispute concerning whether there is a fair reason for the dismissal to the Labour Court in terms of the applicable provisions of the Act. |
3.3 Procedure when a CCMA facilitator is not appointed
| 3.3.1 | The employer must engage in a meaningful joint consensus-seeking process with the appropriate consulting party, and attempt to reach consensus on: |
| 3.3.1.1 | Appropriate measures to: |
| ▪ | Minimise the number of retrenchments; |
| ▪ | Change the timing of the retrenchment; and |
| ▪ | Mitigate the adverse effects of the retrenchment; |
| 3.3.1.2 | The method for selecting the employees to be retrenched; and |
3.3.1.3 The severance pay for retrenched employees.
| 3.3.2 | The employer must allow the consulting parties an opportunity to make representations about any of the above matters, and any other issues relevant to the proposed retrenchment. |
| 3.3.3 | The employer must consider and respond to any representations made and, if the employer does not agree with them, it must state the reasons for disagreeing. If the consulting party’s representations are made in writing, then the employer must respond in writing. |
| 3.3.4 | In any dispute in which an arbitrator is required to decide whether or not any information sought by the consulting parties is relevant, the onus is on the employer to prove that the information which it has refused to disclose is not relevant for the purposes for which it is sought. |
3.4 Selection criteria
| 3.4.1 | The employer must select the employees to be dismissed according to selection criteria: |
| ▪ | That have been agreed by the consulting parties; or |
| ▪ | If no criteria have been agreed, criteria that are fair and objective. |
| 3.4.2 | A party may not refer a dispute over the retrenchment to the bargaining council unless a period of 30 days has elapsed from the date on which the employer’s notice of invitation to consult was given. |
| 3.4.3 | After a dispute has been referred to the bargaining council, and after the relevant period referred to in section 64(1)(a) of the Act has elapsed: |
| 3.4.3.1 | The employer must give notice of termination to those employees selected for retrenchment on the following basis: |
| ▪ | One week, if the employee has been employed for six months or less; or |
| ▪ | Two weeks, if the employee has been employed for more than six months. |
| ▪ | Two weeks, if the employee has been employed for more than six months but less than twelve months. |
| ▪ | Four weeks, if the employee has been employed for twelve months and more. |
| 3.4.3.2 | A registered trade union or the employees who have received notice of termination may, in accordance with the provisions of section 189A of the Act, either: |
| ▪ | Give notice of a strike; or |
| ▪ | Refer a dispute concerning whether there is a fair reason for the dismissal to the Labour Court in terms of the applicable provisions of the Act. |
3.5 Severance pay
The formula contained in clause 35 of this Agreement must be used to determine the amount of severance pay to be paid to a retrenched employee.
3.6 Notification to the Bargaining Council
| 3.6.1 | Once the affected employees have been given notice of the termination of their employment, the employer must inform the Bargaining Council’s regional office, in writing, of the number and occupational categories of the employees that have been retrenched. |
3.7 Re-employment of retrenched employees
| 1.7.1 | If an employer who has previously retrenched employees engages new employees, that employer must, as far as is practicable, give preference to the re-engagement of those persons who were retrenched from the establishment and who are qualified and available to undertake the categories of work required by the employer. |
