A facilitation process is a process that can be referred either by an employer or representative trade union of employees who are likely to be affected by a large scale retrenchment process under section 189A of the Labour Relations Act.
The party referring the matter to the CCMA should use a CCMA 7.20 Form and refer the matter within fifteen days of the notice of anticipated retrenchment being issued to the employees who are likely to be affected by the large scale retrenchment. The CCMA will send a notice of set down to parties with the date, time and venue of where the facilitation meeting will take place.
The process of a facilitation meeting is almost similar to that of a conciliation meeting, the difference being that the process is recorded and with prejudice to parties. The CCMA rules (Rule 25) regarding representation are also applicable in terms of facilitations in that legal representation is not automatic as a commissioner will facilitate the proceedings between the parties. The commissioner sets out the process to be followed regarding the first meeting and the date and time of follow up meetings. The standard practice is that parties should conduct four facilitation meetings prior to sixty days lapsing.
The primary objective of facilitation meetings is to ensure transparency between the parties, and that the employer has a genuine reason to terminate services of employees based on operational requirements. Alternatives to the proposed retrenchment must be proposed and considered by both parties, and if an alternative is rejected, then the party rejecting such proposal made should show valid reason as to the reason such proposal is rejected. The commissioner may even make an order for the employer to disclose information which may be deemed as relevant to ensure transparency and that there is a valid reason to retrench on part of the employer.
Should parties reach an agreement in one of the facilitation meetings, then such is reduced to a settlement agreement between parties as to exactly what the retrenchment process will be, which employees are to be affected and what packages will be paid out and the time periods of the retrenchments. However, should no agreement be reached after meaningful consultations in the form of facilitations between the parties, then an employer may terminate services of employees after sixty days has lapsed from the date employees were issued with notices of possible retrenchment as per section 189A, or the representative trade union may embark on a strike or refer a dispute to the Labour Court.
The CCMA has a great interest in ensuring employees are kept in employment, and thus an employer who employees more than fifty employees and anticipates terminating services based on operational requirements will have to make sure that there is a valid reason to retrench employees and that necessary evidence is available as proof should a facilitator be appointed as per the provisions of section 189A of the Labour Relations Act.
Article by: Lesego Mlandeni
CEO Dispute Resolution Official – Pretoria