Employers have still not universally grasped the meaning of a bona fide consultation process when undertaking a consultation process pursuant to a proposed retrenchment. I still, in my own firm, still come across employers who are of the understanding that a retrenchment consultation process can be completed in a single sitting. This amounts to an employee going to work on any given day full of the joys of Spring, and going home retrenched.
The applicable retrenchment law, principally section 189 of the Labour Relations Act and the Code of Good Practice” Operational Requirements , places a much more procedural burdensome process on employers contemplating retrenchment. It is a process which requires thoughtful contemplation and consultation, in a manner which, on subsequent scrutiny, will show that the consultation process was a genuine consensus seeking process. Seeking consensus on what?
Well, to begin with, consensus on ways of avoiding or delaying the proposed retrenchment, and if this is not possible, ways of mitigating the adverse effects of any pending retrenchment. Furthermore, the minutes of consultation meetings must show that a wide range of issues were consulted over, including selection criteria and the severance pay to be paid.
It is typically, but not only, the retrenchment consultation meeting minutes which are relied upon to determine the true nature of a consultation process. Put differently, do the consultation minutes reflect a robust consultation process, or do they show that minimal time was spent consulting with little if any give and take on the part of the employer?
The Labour Court judgment in Jenkin v Khumbula Media Connexion (Pty) Ltd (Case No. D914/08) addressed the question of what may be referred to as ‘microwave retrenchment’.
The applicant had been retrenched after one consultation meeting which, the Court held, left much to be desired. The Court criticised the respondent employer for having retrenched the applicant “after only one meeting had taken place”. The Court quoted the Labour Appeal court which had, in Johnson & Johnson (Pty) Ltd v CWU (1999) held that “… a mechanical check list kind of approach to determine whether s189 has been complied with is inappropriate”.
Returning to the Khumbula Media Connexion case, the Labour Court added that “the meeting held with the applicant was not sufficient to constitute consultations as required by section 189”.
Employers, in the main, lose retrenchment cases due to either inadequate consultation and/or the adoption of subjective (rather than objective) selection criteria. The procedural requirements to ensure a procedurally fair retrenchment are not overly burdensome. There is very little reason why a retrenchment process cannot, with careful consideration of the retrenchment provisions of the Labour Relations Act, be implemented in both a substantively and procedurally fair manner.
In short, a process which seeks to give a veneer of legal compliance will be viewed as precisely that, a hurried, and ultimately procedurally unfair, hit and run rush job
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