by Jacques Botha Adv. Dipl. Labour Law
© 2000 Henk
Botha & Associates cc
You may not
reproduce this Report without the express written permission of Henk
Botha & Associates cc, P.O. Box 72954, Lynnwood Ridge 0040, South Africa
This Report describes South African law.
There is an obligation on an employer to consult on possible retrenchments. How far does this obligation stretch? A union, for example, may frustrate the consultation process by refusing to attend consultation meetings or by taking an unreasonable length of time to respond to proposals.
Francis, AJ considered this issue in NEHAWU & others v The Agricultural Research Council & others(Case number: J3970/98) Labour Court, Johannesburg. He ruled that one could not blame the employer for not consulting where the union used delaying tactics. Here, the employer several times invited the union to consult. They refused, alleging that the employer did not comply with the provisions of section 189 of the Labour Relations Act. In this instance, the Judge ruled that the employer had complied.
What does this mean in practice for the practitioner?
If a union resorts to delaying tactics, one cannot blame the employer for failing to consult, or for failing to exhaust the consultation process. The employer must prove that it invited the union for consultation, and that the union declined to participate.
Note: It was not the purpose of this report to go into the substantive fairness or other procedural aspects of a retrenchment. There must always be a fair and justifiable reason for retrenchment. Also, the employer should always adhere to the procedural aspects of a retrenchment.