Retrenchment, as a form of dismissal, is regulated by section 189 and 189A of the Labour Relations Act 1995. In order for a retrenchment to be fair, it must comply with both the substantive and procedural requirements stipulated in the Act. After an employee has proved the dismissal, the onus rests on the employer to comply with these two requirements by providing proof thereof. One of the most important procedural requirements that must be complied with by the employer is that the employer cannot merely make a decision to retrench. This decision may only be made once the employer, when contemplating a retrenchment, followed the lengthy consultation process as required in section 189. Recent amendments to section 189 introduced a distinction between a small and big employer and further between a large-scale and small-scale dismissal. If the employee is of the opinion that the employer did not comply with either the procedural or substantive requirements or both, he/she may refer such a dispute for conciliation and thereafter for arbitration or adjudication, according to a dispute resolution process contained in the Act, during which process certain remedies are available to the dismissed employee. The Labour Relations Act 1995 also introduced important amendments which have the effect that employees are allowed to, in certain circumstances, to strike over collective retrenchment disputes.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:nmmu/vital:11055 |
| Date | January 2003 |
| Creators | Van Staden, Leon |
| Publisher | University of Port Elizabeth, Faculty of Law |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis, Masters, LLM |
| Format | 103 pages, pdf |
| Rights | Nelson Mandela Metropolitan University |
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