Lexis Nexis Retrenchment Law in South Africa
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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.
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
