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Section 189 of the LRA effectively allows potential retrenchees to use external representation from registered trade unions to represent them during retrenchment consultations. Sub-section 189(1)(d) allows employees who belong neither to a registered union nor to an established workplace forum to nominate representatives for the purpose of representing them during retrenchment consultations. In the absence of a trade union or workplace forum at the workplace, does subsection 189(1)(d) allow potential retrenchees to nominate representatives from outside of the employer’s business, or is the intention of this sub-section to limit such representation to internal employees?
It is clear that Section 189 of the LRA is geared towards optimal protection of the rights of potential retrenchees. Section 189(2) requires the employer to engage in meaningful consultations. And item 2 of the Code of Good Practice on Dismissal Based on Operational Requirements provides that, “Because retrenchment is a no fault dismissal and because of its human cost, the Act places particular obligations on the employer, most of which are directed towards ensuring that all possible alternatives to dismissal are explored and that the employees to be dismissed are to be treated fairly.” Section 189 (1) requires the employer to consult with external representatives of trade union members. While section 189(1)(d) does not explicitly allow non-unionised employees to nominate external representatives I believe that this is implied. Item (4) of the Code of Good Practice Dismissal dealing with misconduct dismissals specifically provides for representation by a fellow employee. This suggests that, if the legislators intended the representation of potential retrenchees to be confined to fellow employees they would have specifically provided for that in section 189(1)(d). Therefore, employers who refuse employees external representation do so at their peril.
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