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AUTOMATICALLY UNFAIR DISMISSAL? RETRENCHMENT FOR REFUSING SHORT TIME
Company ABC, without invoking section 189 of the LRA, reaches agreement with the union that its members in the workshop will move to a 3-day week due to a low order book. On implementing this short time for the workshop staff the company approaches the workshop management to consult on a 3-day week for the workshop management, again without invoking section 189 of the LRA. Some of the managers agree to the short time and those who reject this proposal are issued with section 189 notifications of possible retrenchment. No alternatives to retrenchment are agreed and these managers are then retrenched and some are replaced by managers then newly hired. The retrenchees then refer to CCMA and later Labour Court a case of automatically unfair dismissal under section 187 (1)(c) of the LRA stating that they had been dismissed because they refused the employer’s demand on a matter of mutual interest (change of working hours). They also refer a dispute to the Labour Court in terms of section 77 of the BCEA for breach of and unilateral change of the terms of their employment contracts. Will they succeed with these claims?AUTOMATICALLY UNFIAR DISMISSAL? – RETRENCHMENT FOR REFUSING SHORT TIME
This particular outline doesn’t appear to be short time as we know it from the bargaining councils. In essence, the full time position has become redundant and is alternative to the redundancy, people are being offered a different position consisting of a three day week.
The Company needs to follow a true section 189 process as it doesn’t appear to be a situation where the low order book was only for a short period of time.
If that is the case I don’t believe that would be an automatically unfair dismissal.
I agree with Michael’s analysis that the jobs became redundant because the managers refused to accept the 3 day week. This made the retrenchments necessary for operational reasons.
The Labour Court recently considered a similar issue in Numsa vs Trident Steel . The Court said it first had to decide what the real reason for the dismissal was. The purpose was to determine whether the dismissals were for operational requirements or if they qualified as an automatically unfair dismissal in terms of s187 (1) (c).
It said three elements must exist for the dismissals to qualify as an automatically unfair dismissal. –
1. There must be clear evidence of a demand,
2. There must be a refusal to agree to that demand, and
3. The dismissal, objectively viewed, must be as a result of that refusal.The Labour Court found in the Trident Steel case that these elements did not exist. The real reason for the dismissals was for operational reasons which made the dismissals substantively fair.
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