It is public knowledge that the COVID-19 pandemic has affected numerous businesses across South Africa, which has led to most companies embarking on retrenchment processes. Even though some businesses have tried to recuperate financially from the pandemic, many have struggled and continue with the retrenchment processes.
Section 189(A) makes provision for trade unions and the employer party to request the CCMA to appoint a facilitator for employees who are likely to be affected by a large-scale retrenchment process. It must be emphasised that upon receipt or issuing of the notices of anticipated retrenchment and invitation to consult with the affected employees, the party that would like to refer the matter for facilitation with the CCMA should complete the CCMA 7.20 form and file it with the CCMA within 15 (fifteen) days.
Following that, the CCMA will issue the notice of set-down to the parties, reflecting the date, time, and venue where the facilitation will occur. The parties need to note that the facilitation meeting is like that of a conciliation hearing, the difference being that the process is recorded and with prejudice to parties. Like any other disputes and/or matters referred to the CCMA, the rules of the CCMA are applicable, where Rule 25, to be specific, will also be applied in a large-scale retrenchment facilitation process when it comes to representation, in that legal representation is not automatically granted, as the presiding Commissioner will facilitate the proceedings between the parties.
The appointed facilitator will have to set out the process to be followed by the parties regarding the first meeting and the date and time of follow-up meetings. The standard practice is that parties should at least conduct four (4) facilitation meetings prior to sixty (60) days lapsing. One of the main objectives of the facilitation process is to ensure transparency between the parties and that the employer provides genuine and justifiable reasons to terminate the services of employees based on operational requirements.
During the facilitation process, any alternatives proposed to avoid retrenchments must be considered by both parties. If such an alternative is rejected, the party rejecting such a proposal should present valid reasons. It needs to be noted that the Commissioner may even make an order requesting the employer to disclose information deemed as relevant to ensure transparency and that there is a valid reason to conduct large-scale retrenchment on the employer’s part.
The Commissioner will, within his/her powers, assist the parties to make sure that the process is conducted fairly, and should parties reach a consensus during one of the facilitation meetings, then a settlement agreement will be reduced to writing between parties stating precisely what the retrenchment process will be, which employees are to be affected and what packages will be paid out and the timeframe of the retrenchments.
However, should no agreement be reached between the parties after meaningful consultations, the employer party may proceed in terminating the services of the affected employees after the sixty (60) day period has lapsed from the date employees were issued with the notice of possible retrenchment together with the invitation to consult as per section 189A of the LRA. Thereafter, the trade union representative may either embark on strike action or refer a dispute to the Labour Court. It is important to note that the affected employees may not embark on a strike until picketing rules have been established.
The CCMA has, on many occasions through media platforms, indicated to employers and employees that the CCMA has a great interest in ensuring that employees are kept in employment and that all possible alternatives should be considered to avoid retrenchment, especially due to the high rate of unemployment in our country. Therefore, an employer who employs more than fifty (50) employees and anticipates terminating services based on operational requirements will have to make sure that valid and justifiable reasons to retrench employees, together with the necessary evidence, are presented to the appointed facilitator as per the provisions of section 189A of the Labour Relations Act.
Article by: Ernest Masupye
Collective Bargaining Co-Ordinator – CEO Pretoria