The employee works for - … Section 189 and Section 189 A of the LRA, should however be read together. Date of dismissal 191. Errors and omissions excepted (E&OE). In terms of section 188 of the Labour Relations Act, dismissal can be fairly justified on three general ground: the conduct of the employee, the capacity of the employee and the operational requirements of the employer. Section 189(1) of the LRA provides that, before retrenching, employers must consult any person whom the employer is required to consult in terms of any collective agreement that may be in force. If the employee makes representations in writing, the employer must respond in writing. 6 of 2014 Inserts s. 198 (4F) in Act No. These are defined as requirements based on economic, technological, structural or similar needs of the employer. The requirements regarding severance pay are set out in section 41 of the Basic Conditions of Employment Act (“BCEA”). CONTENTS: Chapter VIII . Amendment of section 23 of Act 66 of 1995 1. Section 189(1) of the LRA provides for a hierarchy in relation to consultation for purposes of restructuring exercises, known as the cascade principle. 6 of 2014 (provisions mentioned below not yet proclaimed) Proposed amendments by Sections to be amended S. 37 (c) of Act No. Automatically unfair dismissals 188. The employee themselves or their representatives. An employer who employs 50 or less employees are subject to the process set out in section 189 of the LRA, which sets out the procedural and substantive obligations placed on the employer to maintain a fair retrenchment process. Sections 189 and 189A of the Labour Relations Act 66 of 1995 deal with dismissals based on operational requirements – retrenchments being one of them. Section 189 of the Labour Relations Act (“LRA”) permits employers to dismiss employees for operational requirements. (1) When an employer contemplates dismissing one or more employees for reasons based on the employer’s operational requirements, the employer must consult-. Why you’ve decided to follow a specific retrenchment method. Date of dismissal 191. Changes that have been made appear in the content and are referenced with annotations. This article is a general information sheet and should not be used or relied on as legal or other professional advice. As is widely known, during March 2020, the president declared a state of disaster arising from the COVID-19 pandemic. Trade Union and Labour Relations (Consolidation) Act 1992, Section 189 is up to date with all changes known to be in force on or before 01 January 2021. Section 189(7) of the LRA provides that employers may select employees to be retrenched according to the criteria they have agreed upon by the consulting parties. Although the matters, in respect of which information for the purposes of consultation is required, are specified in section 189(3) of the LRA, the list in that section is not a closed one. The amendment of section 1(a) by section 1 of Act 6 of 2014 did not indicate the removal of this footnote.] Why you are intending to proceed with retrenchments. Section 189(a) of the Labour Relations Act - Celebrity gossip and the latest news , South Africas top best scandals here on Sa411 from Mzansi actors , Political figures , Celebs , Radio presenter and Sport Stars. The notice will also serve as an invitation to consult between the parties. On 3 March 2015, the Labour Appeal Court (LAC) ruled that the Court's prior interpretation of the validity of termination notices that are issued in violation of s189A (8) of the Labour Relations Act, No 66 of 1995 (LRA) was incorrect. Dismissal related to operational requirements – Section 189 of the Labour Relation Act View Larger Image In the past years we have seen employees embarking on nationwide strikes, which meant that there was no operation taking place in most companies due to the nationwide strikes during that period. NOTICE OF PROPOSED RETRENCHMENT IN TERMS OF SCTION 189(3) OF THE LABOUR RELATIONS ACT OF 1995 This letter serves to give you notice in terms of section 189(3) of the Labour Relations Act (LRA) of 1995 of a proposal to retrench you and, in this connection to invite you to engage with us in consultation with a view to reaching consensus on: 2, - a) the employer contemplates dismissing by reason of the employer’s operational Trade Union and Labour Relations (Consolidation) Act 1992, Section 188 is up to date with all changes known to be in force on or before 19 January 2021. Other unfair dismissals 189. SECTION 198A: LABOUR BROKER EMPLOYEES The section contains a new definition of “temporary service”. Section 189: Dismissals based on operational requirements. alternatives to dismissal; Appropriate measures to minimize the dismissals; Measures to change the timing of the dismissals; Appropriate measures to mitigate the effects of retrenchment; The method for selecting the employees to be dismissed; and, Alternatives to dismissal that were considered and the reasons why they were rejected, The number of employees likely to be affected, Assistance that the employer will be offering, Any outstanding leave due (up to date of dismissal); and. Section 189 of the Labour Relations Act (hereinafter called “the Act”) relates to the dismissal of employees based on operational reasons and prescribes a very clear procedure to be followed in the event of such retrenchments. 66 of 1995 ACT To change the law governing labour relations and, for that purpose- to give effect to section 23 of the Constitution; How many employees you’ve retrenched in the last 12 months, What assistance you intend to give the employees you retrench, as well as. If no criteria have been agreed upon, that the selection must be fair and objective, the LIFO (“last in, first out”) principal is often applied but is not the only principal. Differences in pay do not always amount to unfair discrimination, Suspension prior to a disciplinary enquiry is not always punitive, Dress code is a potential contentious issue, When a dismissal related to unprotected strikes is fair, Fixed-term contract renewals for managers. Changing the timing of retrenchments, and. Applicability: This section applies to every company including banking and insurance company This morning, it was reported in the media that ProductivitySA has called for Section 189 of the Labour Relations Act (LRA) to be amended. There are changes that may be brought into force at a future date. Global Business Solutions is a leading Labour Law, Human Resources and Industrial Relations consultancy offering a diverse range of services aimed at empowering businesses to achieve their objectives. Section 189 of the Labour Relations Act is applicable and prescribes a joint consensus seeking process in an attempt to reach consensus on appropriate measures (section 189 (2))- … Section 189A of the LRA stipulates the procedure for large scale retrenchments. Section 189 A applies to all employers with more than 50 employees if. Dismissals based on operational requirements 189A.Dismissals based on operational requirements by employers with more than 50 employees 190. Remedies for unfair dismissal and unfair labour practice 194. The goal here is to let as many employees, as possible, keep their jobs. APPLICATION OF SECTION 189 AND SECTION 189A OF THE LABOUR RELATIONS ACT 66 OF 1995 AS AMENDED by MAWETHU SIYABULELA RUNE Submitted in partial fulfilment of the requirements for the degree of MAGISTER LEGUM in the Faculty of Law at the Nelson Mandela Metropolitan University Supervisor: Doctor Pieter C Wagener March 2010 The employer must consult with the above-mentioned individuals in writing. Follow this link to register. As they had contemplated large-scale retrenchments in terms of section 189A of the LRA, a Commission for Conciliation, Mediation and Arbitration (" CCMA ") facilitator was appointed to facilitate the consultations. 185. - Amended by Labour Relations Amendment Act 6 fo 2014 from 1 Jan 2015 - Amended by General Intelligence Laws Amendment Act 11 of 2013 from 29 Jul 2013: S 2 - Amended by Superior Courts Act 10 of 2013 from 23 Aug 2013: S 151, 154, 170 The employer must issue notices to the employees, who have been selected to be retrenched, after the consultation process has been completed. The LRA provides for the disclosure of certain information by the employer on matters relevant to the consultation. Section 189 of the LRA requires all consulting parties to reach consensus on the various matters (specified below). These sections are taken from the Trade Union and Labour Relations (Consolidation) Act 1992 and relate to disclosure of information. The consultation is a process and not a once-off meeting. 17, G. 25003]), ... To change the law governing labour relations and, for that purpose— to give effect to section 23 of the Constitution; [Long title am by s 43 of Act 6 of 2014.] However, if this is not possible, see how you can minimise retrenchments. Disputes about unfair dismissals 192. LABOUR RELATIONS ACT [Updated to 27 November 2018] Act 66 of 1995 (GoN 1877, G. 16861), ... Act 68 of 2002 (GoN 189, G. 24356, c.i.o 28 February 2003 [Proc. The Constitution of the Republic of South Africa requires fairness to be the compass of these processes. Meaning of dismissal 187. View on Westlaw or start a FREE TRIAL today, Section 188, Trade Union and Labour Relations (Consolidation) Act 1992, PrimarySources Dismissals based on operational requirements 190. Section 41 of the BCEA provides that an employer must pay an employee who has been dismissed for operational requirements “severance pay equal to at least one week’s remuneration for each completed year of service with that employer”. Section 189 of Companies Act 2013 read with section 184, section 188 of the Companies Act 2013 and Rule 16 of the Companies(Meeting of Board and its power) Rules 2014. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Employees are entitled to receive severance pay only if they are retrenched for operational requirements. This morning, it was reported in the media that ProductivitySA has called for Section 189 of the Labour Relations Act (LRA) to be amended. Read with section 189 which governs operational requirements dismissals in general, an employer is obliged to consult with appropriate bargaining agents and to engage in a meaningful joint consensus-seeking process aimed to reach consensus on appropriate measures to avoid, minimise, change the timing and mitigate the adverse effects of the dismissal as well as the … Retrenchments in terms of Sections 189 of the Labour Relations Act 06 February 2019 Often employers find themselves in difficult financial positions. Legal reference Labour Relations Act, 1995: Code of Good Practice on Dismissal 2 (4) In cases where the dismissal is not automatically unfair, the employer must show that the reason for dismissal is a reason related to the employee's conduct or capacity, or is based on the operational requirements of the business. The Labour Relations Act (LRA) places additional obligations on employers involved in large scale retrenchments. 1.2) WHO MUST YOU CONSULT WITH Section 189(A) of the Labour Relations Act Wednesday | 09 January | 2019 Due to the SABC’s and certain mining companies’ announcements in 2018 that extensive retrenchment processes would be rolled out, this article aims at discussing retrenchments on a major scale. The LRA requires that consultation must take place when the employer contemplates retrenchment. As a point of departure, the LRA requires that employers must consult with any person with whom it is required to consult in terms of a collective agreement (section 189(1)(a)). threshold as prescribed by the Minister in terms of section 6(3) of the Basic Conditions of Employment Act, and the majority of protections only apply after an employment period of 3 months. Act 68 of 2002 (GoN 189, G. 24356, c.i.o 28 February 2003 [Proc. Copyright 2020 - Global Business Solutions |Powered by Elula Online. 189. This section – which sets out the guidelines for retrenchment procedures – currently limits the parties who must be consulted to: People who must be consulted with in terms of a collective agreement, These are defined as requirements based on economic, technological, structural or similar needs of the employer. 1.1) WHEN MUST CONSULTATION COMMENCE The Labour Relations Act requires that consultation must take place when the employer contemplates retrenchment. How many people you employ and how many you are intending to retrench. If considerations, other than those that are listed, are relevant to the proposed dismissal or the development of alternative proposals, they should be disclosed to the consulting party. The possibility of avoiding the dismissal i.e. Disputes about unfair dismissals and unfair labour practices 192. Section 183 - … Onus in dismissal disputes 193. The current retrenchment procedure, as outlined by the Department of Labour, starts off with a consultation process. Cod of Conduct on Operational Requirements zukisangetu@gmail.com March 9, 2020 (1) This Labour Relations Act defines a dismissal based on the operational requirements of an employer as one that is… Read More »Retrenchment S189 OF THE LABOUR RELATIONS ACT Section 189 of the Labour Relations Act requires all consulting parties to reach consensus on the various matters specified. People who must be consulted with in terms of a collective agreement. (a) any person whom the employer is required to consult in terms of a collective agreement; Unfair Dismissal. The employer must allow the affected employee the opportunity to make representations in relation to the proposed retrenchment, oral or written. Contact Us | (+27 (0)21 801 5240 | solutions@adriaansattorneys.com. EXTRACTS FROM THE LABOUR RELATIONS ACT - Unfair Dismissals. The first thing that must be discussed is how to avoid a retrenchment. Other items that you need to discuss during the preliminary consultation process are, for example, the possibility of: It is extremely important that you, as the employer, give your employees written notice about the following if you are intending to carry out retrenchments: If you want to keep up to date with the latest HR, IR and labour law news, be sure to subscribe to the Global Business Newsletter. Like all dismissals, retrenchments must be both procedurally and substantively fair. Always contact your legal adviser for specific and detailed advice. In National Union of Mineworkers v Anglo American Platinum Ltd and Others 12 BLLR 1253 (LC) the applicant, NUM, brought an urgent application seeking the reinstatement of its members who were dismissed by the respondent, Amplats, for operational requirements pending Amplats’ compliance with ss 189 and 189A of the Labour Relations Act 66 of 1995 (LRA) or an … This section – which sets out the guidelines for retrenchment procedures – currently limits the parties who must be consulted to: Productivity SA’s CEO, Mothunye Mothiba, has called for the LRA to be amended to insert a clause requiring all businesses to report their retrenchment plans to the Department of Labour before any action is taken. Labour Relations Amendment Act, No. Right not to be unfairly dismissed 186. Notice pay (either in terms of the BCEA or as per employment contract). If there is no collective agreement, meetings should be held with all employees that could be affected by the retrenchment. to establish the Labour Court and Labour Appeal Court as superior courts, with exclusive jurisdiction to decide matters arising from the Act; to provide for a simplified procedure for the registration of trade unions and employers' organisations, and to provide for their regulation to ensure democratic practices and proper financial control; Section 23 of the Labour Relations Act, 1995 (hereinafter referred to as the principal Act), is amended by the substitution for subsection (4) of the following subsection: ‘‘(4) Unless the collective agreement provides otherwise, any party to a The employer sometimes has no choice but to retrench some of its employees in order for its business to continue. Section 189 of the Labour Relations Act (“LRA”) permits employers to dismiss employees for operational requirements. 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