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Retrenchments

Employers still bungling retrenchments

We've regularly reminded employers of the factors that render dismissals for operational requirements (retrenchments) fair and unfair. Despite this, employers continue to get it wrong and end up paying a very heavy price. To win a retrenchment case at the CCMA or Labour Court, the employer needs to prove the retrenchment was fair in all respects. It's the employer who has the duty to prove there was a valid reason for the retrenchment, among others. Why are employer's failing to follow the correct retrenchment procedure?

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Retrenching employees on fixed-term contracts is now a minefield

During retrenchment exercises it has become a fairly common practice - among employers - to terminate temporary, fixed-term contracts to reduce the number of permanent employees to be retrenched. The work of those employees on fixed-term contracts is then reallocated to permanent employees. However, to ensure that your retrenchments are fair, there are a number of factors you need to take into account.

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Retrenchments: Downturn in business or poor performance?

South Africa is reeling from the consequences of the prolonged platinum strike and the current strikes in the metal and engineering industry. There is no doubt that one of the very real consequences of strike action will be retrenchments as investors and employers take a stand against labour for holding them to ransom. It's likely that we'll see large scale mechanisation in those industries that are able to, which in turn, will result in many positions becoming redundant.

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Can you use affirmative action as a legitimate selection measurement during retrenchment?

Using affirmative action as a criterion, for selecting employees for retrenchment, in the employment industry is the subject of intense debate. Hugo Pienaar (director in the employment practice at Cliffe Dekker Hofmeyr) and Antonia Pereira (candidate attorney in the employment practice at Cliffe Dekker Hofmeyr) clarify this area for employers.

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Labour Court applies stricter tests for retrenchment fairness

In the past, the Labour Court has been fairly flexible in assessing if the reasons for a retrenchment are fair or not. Traditionally, where the employer could show a genuine operational requirement, the court was reluctant to second guess the employer's reason for retrenchment. However, it appears that the Labour Court is fast moving towards a position where it's prepared to look much deeper into the circumstances of each retrenchment case.

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