Ivan Israelstam | Chief Executive | Labour Law Management Consulting | mail me |
The law makes it compulsory for employers to consult with the potential retrenchees or with their representatives before deciding to retrench. Despite this, employers often refuse to allow the employees to bring external representatives to the consultation meetings.
This can happen for a variety of reasons including the fact that the employer may be aware that its reason for wanting to retrench is not legally acceptable. The employer is therefore nervous that the representative will be able to detect its impure motives. However, whatever the employer’s motive for trying to prevent employee representation, this tactic is likely to result in the employer being punished by the courts or the Commission for Conciliation, Mediation and Arbitration (CCMA).
Section 189(1) of the Labour Relations Act (LRA) provides that potential retrenchees are entitled to be represented by their workplace forum or trade union. Where the affected employees are not members of such organisations, they are entitled to be represented by representatives nominated by the employees for purposes of retrenchment consultations.
Many employers do allow trade union representation at retrenchment consultations, but few allow non-unionised employees to bring lawyers, consultants or other external representatives.
The most common reason given for this is that the matter is an internal and private one and that therefore only internal representatives should be allowed. However, section 189(1) of the LRA does not confine such representation to internal parties. On the contrary, the section allows external representation in the form of trade union officials. So why should non-unionised employees be barred from bringing external representatives? This issue is a contentious one with many employers still intent on barring external representation. In the light of the above this is a risky approach.
In the case of Workers Labour Consultants obo Petros Khoza & others vs Zero Appliances cc (1999, 11 BLLR 1225), the retrenched employees took the employer to Labour Court on a number of grounds. Included in their grounds was the employer’s refusal to allow their external labour consultant to represent them at retrenchment consultations. The court found this to be unfair and ordered the employer to pay each employee the equivalent of 12 months remuneration in compensation.
As the law appears to be clear in allowing employees external representation employers should comply with the law. They should then deal with their concerns of being outmanoeuvred by such employee representatives by hiring their own labour law expert to represent the employer.
