Reply To: IS THE SIX-MONTH POST RETRENCHMENT PRINCIPLE IMMOVABLE?

[Ingrid Lewin]

As far as I know, there is no legal obligation on an employer to re-employ a retrenched employee. If the consultation process ends in an agreement in terms of which the employee agrees to the six-month re-employment clause, he/she would be bound by that and would have no claim to re-employment after the six months expires. However, should the employer employ someone else into the position of the employee during or after the expiry of the six months, and the employee can prove, because of that, that there was no fair reason for the employer to retrench him/her, then the employee could refer an unfair dismissal claim in the ordinary course and the arbitrator / judge would determine whether the dismissal was fair or not and whether re-employment was the appropriate remedy in the circumstances.