WHAT IS THE EFFECT OF A REPLACEMENT OF A SEC 189 NOTICE ON SEC 189A(1)(a)?

[Ivan Israelstam]

WHAT IS THE EFFECT OF A REPLACEMENT OF A SECTION 189(3) NOTIFICATION ON SECTION 189A(1)(a)?
Section 189A(1) provides a sliding scale to direct employers as to whether the provisions of section 189A apply. 189(1)(a) provides that the section applies if an employer with more than 50 employees “contemplates dismissing by reason of the employer’s operational requirements, at least X employees.”. Then follows the sliding scale featuring a range of contemplated retrenchment numbers and a range of total employees employed. For example, the first level of the scale provides for at least 10 retrenchments contemplated by an employer that has a total of between 50 and 200 employees. A literal interpretation of this provides that section 189A will apply to an employer with these numbers merely because the employer originally contemplated [as communicated in its section 189(3) notification] retrenching 10 or more employees. On this interpretation, even if retrenchment consultations succeed in reducing the actual number of retrenchees to 1, section 189A still applies because 10 retrenchments were originally contemplated.
Is this literal interpretation the correct one or would section 189A cease to apply if, for example, the employer later withdraws its initial section 189(3) notification and replaces it with one that contemplates just one retrenchment?

[Patrick Deale]

In my opinion, the literal interpretation is correct: ie if the retrenchment qualified and started as a “large scale” retrenchment in terms of 189A, it should end as a 189A -even if only one or less than 10 employees are retrenched at the end of it. This outcome would mean that the 189A facilitation succeeded in reducing the anticipated “large scale” retrenchment down to a “small scale” retrenchment of only one employee. There would be no need to replace the initial 189(3) with a new one to cite one employee. The process would already have been followed and finalised.

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