Simone Olivier Attorneys Inc.

Retrenchments: Transformation, a selection criterion?

Key information

When an employer contemplates dismissals based on operational requirements, section 189(1) of the Labour Relations Act 66 of 1995 (LRA) requires the employer to consult any person impacted by the decision, including trade unions whose members may be affected by the proposed retrenchments. The employer and other consulting parties must engage in a meaningful joint consensus-seeking process and attempt to reach consensus on, amongst other things, the method for selecting employees to be dismissed. Where an employer does not comply with a fair procedure, section 189A(13) provides a consulting party with recourse to approach the Labour Court.

2022/05

By Phetheni Nkuna, Director and Mbulelo Mango, Associate Designate, Employment Law, Cliffe Dekker Hofmeyr

Where the consulting parties have agreed on the selection criteria to be used, the employer is obliged to implement the criteria. However, where no agreement can be reached between the consulting parties, the employer is obliged to use criteria that is fair and objective. This legal position has been crystallised by the Constitutional Court (CC) in its recent judgment of Solidarity obo Members v Barloworld Equipment Southern Africa and Others [2022] ZACC 15I.

Evaluating substance vs procedure

On 27 April 2020, Barloworld notified its employees, including Solidarity’s members, of its intention to restructure its operations resulting from the impact of COVID-19. Shortly thereafter, Barloworld lodged a request with the Commission for Conciliation, Mediation and Arbitration (CCMA) for it to facilitate a joint consensus-seeking process between the affected parties and Barloworld. During the consultative process that ensued. Solidarity took issue with the proposed selection criteria – specifically, the inclusion of transformation as part of the selection criteria.

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https://www.labourguide.co.za/recent-articles/2881-retrenchments-transformation-a-selection-criterion

MEDIA RELEASE

17 August 2022

Department of Employment and Labour tells employers to act decisively on harassment or accept liability

The Department of Employment and Labour told employers attending the Employment Equity roadshow that failure to take adequate steps to eliminate harassment will render the employer vicariously liable for the conduct of its employees who harass others.

The Director: Employment Equity, Ntsoaki Mamashela, told the workshop today, August 17, 2022. She said: “Failure to take adequate steps to eliminate harassment once an allegation of harassment by an employee has been submitted within a reasonable time, will render the employer vicariously liable for the conduct of the employee in terms of section 60 of the EEA. This is the case even if the harassment consists of a single incident".

She told the gathering that any allegation of harassment by an employee brought to the attention of the employer requires of the employer to consult all relevant parties; take the necessary steps to address the complaint in accordance with this Code; the employer’s policy and where applicable, the collective bargaining agreement; and take the necessary steps to eliminate the harassment.

This is according to the new Code of Good Practice on the prevention and elimination of harassment in the workplace that was published on 18 March 2022. The Code covers owners; employers; managers; supervisors; employees; job seekers and job applicants; persons in training including interns, apprentices and persons on learnerships; volunteers; clients; suppliers; contractors; and others having dealings with an organisation.

Mamashela said: “The protection extends to both public and private spaces; where the worker is paid, during rest or meal breaks or using sanitary facilities, washing and changing facilities; work-related trips, travel, training, events, or social activities; related communications including those enabled by information and communication technologies; employer-provided accommodation; and when commuting to and from work in transport provided or controlled by the employer.”

On the issue of EE reporting in the province, the numbers are dismally inequitable with 40 percent of senior management positions occupied by white males with an economically active population of 2.9 percent, black males with an economically active population of 28.8 percent sharing the spoils of senior management positions of just above 16 percent with white females with an economically active population of 3.7 percent.

African females with an economically active population of 22.3 percent occupy a slight percentage above coloured females who have an economically active population of 18.2 percent. The tail end is occupied by Indian men and women as well as foreign nationals in both sexes, all with an economically active population of less than one percent.

For the previous three years, more Africans were more qualified and skilled, followed by coloureds and whites occupying third position.

Deputy Director: Employment Equity, Masilo Lefika told the gathering that the Employment Equity Amendment Bill currently being in Parliament awaiting ascension to and signing by the President will address the imbalances that are experienced in the province.

In sharing their experiences, Commissioner Pietersen from the Commission for Conciliation, Mediation and Arbitration highlighted the fact that the CCMA has jurisdiction in hearing disputes on harassment provided the complainant earns R224 080.08 as per the Basic Conditions of Employment Act provision and those above the threshold are covered only if there is consent or agreement.

“Harassment is in the eyes of the recipient and even a single incident can lead to harassment. Sexual harassment specifically is a good reason for a dismissal” he said.

The next EE Roadshows will take place in the North West and Mpumalanga Provinces on 18 August 2022 in Mahikeng at Seasons Conference and Weddings, Lichtenburg Road, Dihatswane Village and Nelspruit (Mbombela) at Khayalami Hotels, 29 van Wijk Street followed by Rustenburg on 19 August 2022 at Bogosi Lifestyle Farm, Dinie Estate Road, Kroondal.

The national workshops will be held from 10:00 to 13:00 and members of the media are invited.

More information on EE is obtainable from the Department website www.labour.gov.za including updates on the schedule for venues.

For more information, contact,

Teboho Thejane
Departmental Spokesperson
082 697 00694/ [email protected]
-ENDS-

Issued by: Department of Employment and Labour