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South Africa - Procedural requirements for collective dismissals for economic reasons (redundancy, retrenchment)
+ show references
- Labour Relations Act [LRA], No. 66 of 1995, as last amended by the Labour Relations Amendment Act, No. 12 of 2002
Date: 26 Jun 2002; view website »
- Basic Conditions of Employment Act [BCEA], No. 75 of 1997 as last amended by Basic Conditions of Employment Amendment Act, No. 11 of 2002
Date: 18 Jun 2002; view website »
- Code of good practice on dismissal (Schedule 8 to the Labour Relations Act 66 of 1995)
[Please note that, although this Code is not binding, it should be used by employers as a guideline when exercising their powers of discipline and dismissal. In addition, it must be considered by any competent authority assessing whether or not the dismissal is fair]
Date: 13 Dec 1995; view website »
Definition of collective dismissal (number of employees concerned):
1) The LRA contains a provision on the procedure applicable to dismissals based on operational requirements (those based on the economic, technological, structural or similar needs of an employer) of one or more employees.
2) In addition, there are specific additional procedural requirements applicable to any employer with more than 50 employees who contemplates to dismiss at least:
- 10 employees out of up to 200 employees;
- 20 employees out of 201 to 300 employees;
- 30 employees out of 301 to 400 employees;
- 40 employees out of 401 to 500;
- 50 employees out of more than 500 employees.
Remarks: - On the definition of operational requirements, see sec. 213 LRA.
Sec 189 LRA applies to dismissals based on operational requirements of one or more employees.
Sec. 189 LRA applies to dismissals based on operational requirements if the employers has more than 50 employees.
Prior consultations with trade unions (workers' representatives): Yes
Remarks: - Prior to any dismissal based on operational requirements no matter the number of employees concerned, consultation with
trade unions and/or the workplace forum is mandatory. If there is no workplace forum or trade union, consultation shall take place with employees' representatives nominated for that purpose.
The employer and the consulting party must engage in a meaningful joint consensus-seeking process and try to reach consensus on appropriate measures to avoid/minimise dismissals, change the timing of dismissals or mitigate their adverse effects, the method for selecting employees to be dismissed and severance pay for dismissed employees. The employer must consider and respond to the representations made by other consulting parties and, if the employer does not agree with them, the employer must state the reasons for disagreeing (see sec. 189(1), (5) and (6) LRA).
Notification to the public administration: No
Remarks: - The employer is not requested to notify the labour administration when contemplating dismissals based on operational requirements.
However, there is a specific procedure foreseen for collective dismissals applicable to employers with more than 50 employees, according to which the Commission for Conciliation, Mediation and Arbitration which is an independent tripartite body shall appoint a facilitator if requested by the employer or employee's representatives (sec. 189A LRA).
Notification to workers' representatives: Yes
Remarks: - Prior to any dismissal based on operational requirements no matter the number of employees concerned, consultation with
trade unions and/or the workplace forum mandatory. If there is no workplace forum or trade union, consultation shall take place with employee's representatives nominated for that purpose (see sec. 189(1) LRA).
The employer is obliged to disclose in writing all relevant information for the purpose of consultation (e.g. reasons for dismissal, alternatives to dismissals, number of employees affected, period during which the proposed dismissals are to occur, proposed method of selecting employees, assistance which may be rendered by the employer to the employees, possibilities of future employment). The employer must also allow employees to respond, and in turn reply to the response of the workers' representatives to these issues (see sec. 189(1) LRA) (sec. 189 (3),(5), (6) LRA)
Approval by public administration or judicial bodies: No
Approval by workers' representatives: No
Priority rules for collective dismissals (social considerations, age, job tenure): No
Remarks: - No list of selection criteria in the LRA.
Selection criteria are mentioned in sec. 189 LRA as one of the elements on which the parties must attempt to reach consensus during the consultation process. If they have not been agreed to by the parties, the employer must follow fair and objective criteria.
Employer's obligation to consider alternatives to dismissal (transfers, retraining...): Yes
Remarks: - See sec. 189(2)a), (3)b) LRA: The employer and the consulting party must engage in a meaningful joint consensus-seeking process and try to reach consensus on appropriate measures to avoid/minimise dismissals, change the timing of dismissals or mitigate their adverse affects.
The employer must provide information to the consulting party on the alternatives the employer considered before proposing the dismissals and the reasons for rejecting each of those alternatives.
Priority rules for re-employment: No
+ show references
- Labour Relations Act [LRA], No. 66 of 1995, as last amended by the Labour Relations Amendment Act, No. 12 of 2002
Date: 26 Jun 2002; view website »
- Basic Conditions of Employment Act [BCEA], No. 75 of 1997 as last amended by Basic Conditions of Employment Amendment Act, No. 11 of 2002
Date: 18 Jun 2002; view website »
- Code of good practice on dismissal (Schedule 8 to the Labour Relations Act 66 of 1995)
[Please note that, although this Code is not binding, it should be used by employers as a guideline when exercising their powers of discipline and dismissal. In addition, it must be considered by any competent authority assessing whether or not the dismissal is fair]
Date: 13 Dec 1995; view website »
Definition of collective dismissal (number of employees concerned):
1) The LRA contains a provision on the procedure applicable to dismissals based on operational requirements (those based on the economic, technological, structural or similar needs of an employer) of one or more employees.
2) In addition, there are specific additional procedural requirements applicable to any employer with more than 50 employees who contemplates to dismiss at least:
- 10 employees out of up to 200 employees;
- 20 employees out of 201 to 300 employees;
- 30 employees out of 301 to 400 employees;
- 40 employees out of 401 to 500;
- 50 employees out of more than 500 employees.
Remarks: - On the definition of operational requirements, see sec. 213 LRA.
Sec 189 LRA applies to dismissals based on operational requirements of one or more employees.
Sec. 189 LRA applies to dismissals based on operational requirements if the employers has more than 50 employees.
Prior consultations with trade unions (workers' representatives): Yes
Remarks: - Prior to any dismissal based on operational requirements no matter the number of employees concerned, consultation with
trade unions and/or the workplace forum is mandatory. If there is no workplace forum or trade union, consultation shall take place with employees' representatives nominated for that purpose.
The employer and the consulting party must engage in a meaningful joint consensus-seeking process and try to reach consensus on appropriate measures to avoid/minimise dismissals, change the timing of dismissals or mitigate their adverse effects, the method for selecting employees to be dismissed and severance pay for dismissed employees. The employer must consider and respond to the representations made by other consulting parties and, if the employer does not agree with them, the employer must state the reasons for disagreeing (see sec. 189(1), (5) and (6) LRA).
Notification to the public administration: No
Remarks: - The employer is not requested to notify the labour administration when contemplating dismissals based on operational requirements.
However, there is a specific procedure foreseen for collective dismissals applicable to employers with more than 50 employees, according to which the Commission for Conciliation, Mediation and Arbitration which is an independent tripartite body shall appoint a facilitator if requested by the employer or employee's representatives (sec. 189A LRA).
Notification to workers' representatives: Yes
Remarks: - Prior to any dismissal based on operational requirements no matter the number of employees concerned, consultation with
trade unions and/or the workplace forum mandatory. If there is no workplace forum or trade union, consultation shall take place with employee's representatives nominated for that purpose (see sec. 189(1) LRA).
The employer is obliged to disclose in writing all relevant information for the purpose of consultation (e.g. reasons for dismissal, alternatives to dismissals, number of employees affected, period during which the proposed dismissals are to occur, proposed method of selecting employees, assistance which may be rendered by the employer to the employees, possibilities of future employment). The employer must also allow employees to respond, and in turn reply to the response of the workers¿ representatives to these issues (see sec. 189(1) LRA) (sec. 189 (3),(5), (6) LRA)
Approval by public administration or judicial bodies: No
Approval by workers' representatives: No
Priority rules for collective dismissals (social considerations, age, job tenure): No
Remarks: - No list of selection criteria in the LRA.
Selection criteria are mentioned in sec. 189 LRA as one of the elements on which the parties must attempt to reach consensus during the consultation process. If they have not been agreed to by the parties, the employer must follow fair and objective criteria.
Employer's obligation to consider alternatives to dismissal (transfers, retraining...): Yes
Remarks: - See sec. 189(2)a), (3)b) LRA: The employer and the consulting party must engage in a meaningful joint consensus-seeking process and try to reach consensus on appropriate measures to avoid/minimise dismissals, change the timing of dismissals or mitigate their adverse affects.
The employer must provide information to the consulting party on the alternatives the employer considered before proposing the dismissals and the reasons for rejecting each of those alternatives.
Priority rules for re-employment: No
+ show references
- Labour Relations Act [LRA], No. 66 of 1995, as last amended by the Labour Relations Amendment Act, No. 12 of 2002
Date: 26 Jun 2002; view website »
- Basic Conditions of Employment Act [BCEA], No. 75 of 1997 as last amended by Basic Conditions of Employment Amendment Act, No. 11 of 2002
Date: 18 Jun 2002; view website »
- Code of good practice on dismissal (Schedule 8 to the Labour Relations Act 66 of 1995)
[Please note that, although this Code is not binding, it should be used by employers as a guideline when exercising their powers of discipline and dismissal. In addition, it must be considered by any competent authority assessing whether or not the dismissal is fair]
Date: 13 Dec 1995; view website »
Definition of collective dismissal (number of employees concerned):
1) The LRA contains a provision on the procedure applicable to dismissals based on operational requirements (those based on the economic, technological, structural or similar needs of an employer) of one or more employees.
2) In addition, there are specific additional procedural requirements applicable to any employer with more than 50 employees who contemplates to dismiss at least:
- 10 employees out of up to 200 employees;
- 20 employees out of 201 to 300 employees;
- 30 employees out of 301 to 400 employees;
- 40 employees out of 401 to 500;
- 50 employees out of more than 500 employees.
Remarks: - On the definition of operational requirements, see sec. 213 LRA.
Sec 189 LRA applies to dismissals based on operational requirements of one or more employees.
Sec. 189 LRA applies to dismissals based on operational requirements if the employers has more than 50 employees.
Prior consultations with trade unions (workers' representatives): Yes
Remarks: - Prior to any dismissal based on operational requirements no matter the number of employees concerned, consultation with
trade unions and/or the workplace forum is mandatory. If there is no workplace forum or trade union, consultation shall take place with employees' representatives nominated for that purpose.
The employer and the consulting party must engage in a meaningful joint consensus-seeking process and try to reach consensus on appropriate measures to avoid/minimise dismissals, change the timing of dismissals or mitigate their adverse effects, the method for selecting employees to be dismissed and severance pay for dismissed employees. The employer must consider and respond to the representations made by other consulting parties and, if the employer does not agree with them, the employer must state the reasons for disagreeing (see sec. 189(1), (5) and (6) LRA).
Notification to the public administration: No
Remarks: - The employer is not requested to notify the labour administration when contemplating dismissals based on operational requirements.
However, there is a specific procedure foreseen for collective dismissals applicable to employers with more than 50 employees, according to which the Commission for Conciliation, Mediation and Arbitration which is an independent tripartite body shall appoint a facilitator if requested by the employer or employee's representatives (sec. 189A LRA).
Notification to workers' representatives: Yes
Remarks: - Prior to any dismissal based on operational requirements no matter the number of employees concerned, consultation with
trade unions and/or the workplace forum mandatory. If there is no workplace forum or trade union, consultation shall take place with employee's representatives nominated for that purpose (see sec. 189(1) LRA).
The employer is obliged to disclose in writing all relevant information for the purpose of consultation (e.g. reasons for dismissal, alternatives to dismissals, number of employees affected, period during which the proposed dismissals are to occur, proposed method of selecting employees, assistance which may be rendered by the employer to the employees, possibilities of future employment). The employer must also allow employees to respond, and in turn reply to the response of the workers¿ representatives to these issues (see sec. 189(1) LRA) (sec. 189 (3),(5), (6) LRA)
Approval by public administration or judicial bodies: No
Approval by workers' representatives: No
Priority rules for collective dismissals (social considerations, age, job tenure): No
Remarks: - No list of selection criteria in the LRA.
Selection criteria are mentioned in sec. 189 LRA as one of the elements on which the parties must attempt to reach consensus during the consultation process. If they have not been agreed to by the parties, the employer must follow fair and objective criteria.
Employer's obligation to consider alternatives to dismissal (transfers, retraining...): Yes
Remarks: - See sec. 189(2)a), (3)b) LRA: The employer and the consulting party must engage in a meaningful joint consensus-seeking process and try to reach consensus on appropriate measures to avoid/minimise dismissals, change the timing of dismissals or mitigate their adverse affects.
The employer must provide information to the consulting party on the alternatives the employer considered before proposing the dismissals and the reasons for rejecting each of those alternatives.
Priority rules for re-employment: No
+ show references
- Labour Relations Act [LRA], No. 66 of 1995, as last amended by the Labour Relations Amendment Act, No. 12 of 2002
Date: 26 Jun 2002; view website »
- Basic Conditions of Employment Act [BCEA], No. 75 of 1997 as last amended by Basic Conditions of Employment Amendment Act, No. 11 of 2002
Date: 18 Jun 2002; view website »
- Code of good practice on dismissal (Schedule 8 to the Labour Relations Act 66 of 1995)
[Please note that, although this Code is not binding, it should be used by employers as a guideline when exercising their powers of discipline and dismissal. In addition, it must be considered by any competent authority assessing whether or not the dismissal is fair]
Date: 13 Dec 1995; view website »
Definition of collective dismissal (number of employees concerned):
1) The LRA contains a provision on the procedure applicable to dismissals based on operational requirements (those based on the economic, technological, structural or similar needs of an employer) of one or more employees.
2) In addition, there are specific additional procedural requirements applicable to any employer with more than 50 employees who contemplates to dismiss at least:
- 10 employees out of up to 200 employees;
- 20 employees out of 201 to 300 employees;
- 30 employees out of 301 to 400 employees;
- 40 employees out of 401 to 500;
- 50 employees out of more than 500 employees.
Remarks: - On the definition of operational requirements, see sec. 213 LRA.
Sec 189 LRA applies to dismissals based on operational requirements of one or more employees.
Sec. 189 LRA applies to dismissals based on operational requirements if the employers has more than 50 employees.
Prior consultations with trade unions (workers' representatives): Yes
Remarks: - Prior to any dismissal based on operational requirements no matter the number of employees concerned, consultation with
trade unions and/or the workplace forum is mandatory. If there is no workplace forum or trade union, consultation shall take place with employees' representatives nominated for that purpose.
The employer and the consulting party must engage in a meaningful joint consensus-seeking process and try to reach consensus on appropriate measures to avoid/minimise dismissals, change the timing of dismissals or mitigate their adverse effects, the method for selecting employees to be dismissed and severance pay for dismissed employees. The employer must consider and respond to the representations made by other consulting parties and, if the employer does not agree with them, the employer must state the reasons for disagreeing (see sec. 189(1), (5) and (6) LRA).
Notification to the public administration: No
Remarks: - The employer is not requested to notify the labour administration when contemplating dismissals based on operational requirements.
However, there is a specific procedure foreseen for collective dismissals applicable to employers with more than 50 employees, according to which the Commission for Conciliation, Mediation and Arbitration which is an independent tripartite body shall appoint a facilitator if requested by the employer or employee's representatives (sec. 189A LRA).
Notification to workers' representatives: Yes
Remarks: - Prior to any dismissal based on operational requirements no matter the number of employees concerned, consultation with
trade unions and/or the workplace forum mandatory. If there is no workplace forum or trade union, consultation shall take place with employee's representatives nominated for that purpose (see sec. 189(1) LRA).
The employer is obliged to disclose in writing all relevant information for the purpose of consultation (e.g. reasons for dismissal, alternatives to dismissals, number of employees affected, period during which the proposed dismissals are to occur, proposed method of selecting employees, assistance which may be rendered by the employer to the employees, possibilities of future employment). The employer must also allow employees to respond, and in turn reply to the response of the workers¿ representatives to these issues (see sec. 189(1) LRA) (sec. 189 (3),(5), (6) LRA)
Approval by public administration or judicial bodies: No
Approval by workers' representatives: No
Priority rules for collective dismissals (social considerations, age, job tenure): No
Remarks: - No list of selection criteria in the LRA.
Selection criteria are mentioned in sec. 189 LRA as one of the elements on which the parties must attempt to reach consensus during the consultation process. If they have not been agreed to by the parties, the employer must follow fair and objective criteria.
Employer's obligation to consider alternatives to dismissal (transfers, retraining...): Yes
Remarks: - See sec. 189(2)a), (3)b) LRA: The employer and the consulting party must engage in a meaningful joint consensus-seeking process and try to reach consensus on appropriate measures to avoid/minimise dismissals, change the timing of dismissals or mitigate their adverse affects.
The employer must provide information to the consulting party on the alternatives the employer considered before proposing the dismissals and the reasons for rejecting each of those alternatives.
Priority rules for re-employment: No
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