The regulation of large-scale retrenchments in South African labour law

Abstract

The Labour Relations Act 66 of 1995 recognizes three broad categories of dimisssals namely misconduct, incapacity and operational requirements of the employer, this study draws its focus on the former requirement within the context of large scale-retrenchments which triggered when an employer who employs more than 50 employees contemplates dismissing a number of employees based on operational reasons in terms of the sliding scale. This study seeks to analyze the concept operational requirements within the context of large-scale retrenchments through tracing the historical, Constitutional and legislative framework pertaining to this form of dismissal. Through this study, the ambiguities and deficiencies pertaining to some of the provisions of the Labour Relations Act within the contect of large-scale retrenchments will be investigated. This will be achieved by interrogating some of the challenges in effecting dismissals for operational requirements in large-scale retrenchments through investigating the problems and difficulties associated with the interpretation and application of section 189A owing to conflicting case law on the consequences of non-compliance with the procedure prescribed in that section. This study, inter a!ia/ seeks to ascertain whether section 189A of the Labour Relations Act introduced by the 2002 and 2015 amendments of the Labour Relations Act relating to large-scale retrenchments has achieved its objectives of promoting job security. the study has found that the provisions of the LRA should be interpreted in a manner which gives effect and content to the constitutional right to fair labour practice and in essence to the right not to be unfairly dismissed and in particular to fulfil the objects of the LRA in promoting job security. Having regard to the social effect which retrenchments have on the retrenched employees and their dependants, it is worth noting that the dismissals should be carried out with caution and that courts should be stringent when dealing with mass dismissals while at the same time maintaining a delicate balance between the employer's needs and the employee's right to not to be unfairly dismissed