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Retrenchment Law in South Africa

Retrenchment Law in South Africa provides a detailed and comprehensive analysis of retrenchment law in South Africa. The author provides new, critical insight into the interplay between case law and legislative

Publication Language: English
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ISBN/ISSN: 9780409124163

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Retrenchment Law in South Africa provides a detailed and comprehensive analysis of retrenchment law in South Africa. The author provides new, critical insight into the interplay between case law and legislative developments

The 2014 amendments to the Labour Relations Act are considered as well as the potential unintended consequences of these amendments (such as the impact of ss 198 A (b) (ii) and s 198 B (5) on an employer's ability to retrench). The book examines the meaning of the term operational requirements with extensive reference to case law and use of creative examples and hypotheticals.

Retrenchment Law in South Africa covers complex issues such as bumping and timing periods in the case of large-scale retrenchments. The author provides useful international comparisons in particular the ILO convention and the EUs Directive on Collective Redundancies. Practitioners and academics will benefit from this useful examination of retrenchment law. Who is the book aimed at? Labour law practitioners, post graduate students, union officials, commissioners arbitrators, HR Directors and judges.

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Table of contents

Retrenchment law in context

Introduction

Retrenchment and redundancy explained

Historical overview and national and international legislative framework

Overview Processing of, and remedies for, a claim of unfair retrenchment

Operational requirements

Introduction

Distinguishing between operational requirements dismissals and dismissals for misconduct or incapacity

Distinguishing between an operational requirement dismissals and a dismissal because of a strike action (or other reasons listed in section 187)

The relationship between sections 187(1)(c), 188 and 189

Defining operational requirements

Retrenchment an employee on a fixed-term contract

Consulting for a fair retrenchment

Introduction — understanding the relationship between substance and procedure

The implications of non-compliance with procedural requirements

Consulting in terms of section 189

The notice in terms of section 189(3)

The consulting parties

Consulting in the case of insolvency and business rescue

The nature of the consultation process

Disclosure of information

The consultation agenda — key procedural and substance fairness

Introduction

Avoiding or minimising retrenchments

Timing and mitigation adverse effects of the retrenchment

Selecting employees for retrenchment

Severance pay

Large-scale retrenchments

Introduction

The formula for application

Facilitation or not

Procedural unfairness

Giving Notice

Industrial Action

Substantive Fairness

A Fair reason for retrench

Introduction

General

The Jurisprudential evolution of the test for substantive fairness

Establishment fairness

The rise and fall of section 189A(19)

Selection criteria