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Tanzania, República Unida de - Requisitos formales / procedimientos de despido colectivos por razones económicas


+ show references

Definición de despido colectivo (número de empleados afectados):
No statutory definition of collective dismissal. However, the ELRA provides for specific requirements applicable to "termination based on operational requirements (retrenchment)".

Remarks:
  • Art. 38 ELRA.
    An operational requirement is defined in the ELRA as a requirement based on the economic, technological, structural or similar needs of the employer (art. 4).

Consultación previa con los sindicatos (representantes de los trabajadores):

Remarks:
  • Art. 38(1) ELRA:
    The employer is required to give notice, disclose all relevant information and consult any trade union recognized by the ELRA, any registered trade union with members in the workplace not represented by a recognized trade union, or any employees not represented by a recognised or registered trade union. Consultation shall cover the following issues:
    - the reasons for the intended retrenchment;
    - any measures to avoid or minimise the intended
    retrenchment;
    - the method of selection of the employees to be
    retrenched;
    - the timing of the retrenchments; and
    - severance pay in respect of the retrenchments.

Notificación a la administración: No

Remarks:
  • No mandatory notification to the administration.
    However, if the parties fail to reach an agreement during the consultation process, the matter shall be referred to the Commission for Mediation and Arbitration. This Commission which is an independent department of government composed of government representatives, and representatives of both employees and employers shall appoint a mediator to mediate the dispute (see: art. 38(2) ELRA, 86-87 ELRA and arts. 13 and 16 of the Labour Institutions Act of 2004).
    If an agreement is reached, it will be enforceable.
    However, according to rule 23(9) of the Code of Good Practice, the employer may not implement the retrenchment within 30 days of the referral to mediation, unless otherwise agreed between the parties. Once this period has elapsed, the employer may proceed with the retrenchment unilaterally. The fairness of the employer's action may be challenged and referred to arbitration, once mediation fails.

Notificación a los representantes de los trabajadores:

Remarks:
  • Art. 38(1)(d)(i) ELRA establishes a requirement for employers to give notice to any recognized trade union in the workplace.

Aprobación de la administración publica o de organismos judiciales: No

Acuerdo de los representantes de los trabajadores: No

Remarks:
  • No mandatory approval by the worker's representatives.
    However, if an agreement is reached during the consultation process it will be enforceable. If the parties fail to reach an agreement during the consultation process, the matter shall be referred to Commission for Mediation and Arbitration.
    The Commission for Mediation and Arbitration which is an independent department of government composed of government representatives, and representatives of both employees and employers shall appoint a mediator to mediate the dispute. (art. 38(2) ELRA, 86-87 ELRA and arts. 13 and 16 of the Labour Institutions Act of 2004).
    According to rule 23(9) of the Code of Good Practice, the employer may not implement the retrenchment within 30 days of the referral to mediation, unless otherwise agreed between the parties. Once this period has elapsed, the employer may proceed with the retrenchment unilaterally. The fairness of the employer's action may be challenged and referred to arbitration, once mediation fails.

Reglas de prioridad para los despidos colectivos (consideraciones sociales, edad, años de servicio): No

Remarks:
  • The ELRA does not provide for selection criteria. The ELRA only states that "the method of selection of the employees to be retrenched" is one of the elements to be discussed during the consultation process (art. 38(1)(c)(iii) ELRA).
    Nonetheless, the Code of Good Practices (2007) provides that when one or more employees are to be selected for termination from a number of employees, the criteria for their selection shall be agreed with the trade union. If criteria are not agreed, they shall be fair and objective. Selection criteria that are generally accepted as fair include: the employee's length of service, the need to retain key jobs, experience or skills, affirmative action and qualifications (Rule 24 CGP)

Obligación del empleador de considerar solucionés alternativas al despido (transferencia, formación...):

Remarks:
  • Art. 38(1)(c)(ii) ELRA: the employer has to consult with workers' representatives "on any measures to avoid or minimize the intended retrenchments".
    According to the Code of Good Practice (2007), when assessing the fairness of a termination based on operational requirements, "the court shall scrutinize [such termination] carefully in order to ensure that the employer has considered all possible alternatives to termination before the termination is effected" (Rule 23(1) CGP).

    [See also art. 42(3)(b) ELRA: the severance pay is not paid "to an employee who is terminated on grounds of capacity, compatibility or operational requirements of the employer, but who unreasonably refuses to accept alternative employment with that employer or any other employer".]

Reglas de prioridad para la re-contratación: No

Remarks:
  • No statutory provision on preference in re-hiring in the ELRA.
    However, such preference is provided in the Code of Good Practice (rule 25 CGP) which reads as follows:
    - "(1) Retrenched employees shall be given preference if the employer re-hires employees with comparable qualifications, subject to the following:
    (a) the employee having expressed within a reasonable time form the date of termination, a desire to be re-hired; and
    (b) a time limit on preferential re-hiring shall also ideally form the subject of agreement between the employer and the union.
    (2) Where the above conditions are met, the employer shall take reasonable steps to inform the employee, including notification to the representative trade union, of the offer of re-employment."

+ show references

Definición de despido colectivo (número de empleados afectados):
No statutory definition of collective dismissal. However, the ELRA provides for specific requirements applicable to "termination based on operational requirements (retrenchment)".

Remarks:
  • Art. 38 ELRA.
    An operational requirement is defined in the ELRA as a requirement based on the economic, technological, structural or similar needs of the employer (art. 4).

Consultación previa con los sindicatos (representantes de los trabajadores):

Remarks:
  • Art. 38(1) ELRA:
    The employer is required to give notice, disclose all relevant information and consult any trade union recognized by the ELRA, any registered trade union with members in the workplace not represented by a recognized trade union, or any employees not represented by a recognised or registered trade union. Consultation shall cover the following issues:
    - the reasons for the intended retrenchment;
    - any measures to avoid or minimise the intended
    retrenchment;
    - the method of selection of the employees to be
    retrenched;
    - the timing of the retrenchments; and
    - severance pay in respect of the retrenchments.

Notificación a la administración: No

Remarks:
  • No mandatory notification to the administration.
    However, if the parties fail to reach an agreement during the consultation process, the matter shall be referred to the Commission for Mediation and Arbitration. This Commission which is an independent department of government composed of government representatives, and representatives of both employees and employers shall appoint a mediator to mediate the dispute (see: art. 38(2) ELRA, 86-87 ELRA and arts. 13 and 16 of the Labour Institutions Act of 2004).
    If an agreement is reached, it will be enforceable.
    However, according to rule 23(9) of the Code of Good Practice, the employer may not implement the retrenchment within 30 days of the referral to mediation, unless otherwise agreed between the parties. Once this period has elapsed, the employer may proceed with the retrenchment unilaterally. The fairness of the employer's action may be challenged and referred to arbitration, once mediation fails.

Notificación a los representantes de los trabajadores:

Remarks:
  • Art. 38(1)(d)(i) ELRA establishes a requirement for employers to give notice to any recognized trade union in the workplace.

Aprobación de la administración publica o de organismos judiciales: No

Acuerdo de los representantes de los trabajadores: No

Remarks:
  • No mandatory approval by the worker's representatives.
    However, if an agreement is reached during the consultation process it will be enforceable. If the parties fail to reach an agreement during the consultation process, the matter shall be referred to Commission for Mediation and Arbitration.
    The Commission for Mediation and Arbitration which is an independent department of government composed of government representatives, and representatives of both employees and employers shall appoint a mediator to mediate the dispute. (art. 38(2) ELRA, 86-87 ELRA and arts. 13 and 16 of the Labour Institutions Act of 2004).
    According to rule 23(9) of the Code of Good Practice, the employer may not implement the retrenchment within 30 days of the referral to mediation, unless otherwise agreed between the parties. Once this period has elapsed, the employer may proceed with the retrenchment unilaterally. The fairness of the employer's action may be challenged and referred to arbitration, once mediation fails.

Reglas de prioridad para los despidos colectivos (consideraciones sociales, edad, años de servicio): No

Remarks:
  • The ELRA does not provide for selection criteria. The ELRA only states that "the method of selection of the employees to be retrenched" is one of the elements to be discussed during the consultation process (art. 38(1)(c)(iii) ELRA).
    Nonetheless, the Code of Good Practices (2007) provides that when one or more employees are to be selected for termination from a number of employees, the criteria for their selection shall be agreed with the trade union. If criteria are not agreed, they shall be fair and objective. Selection criteria that are generally accepted as fair include: the employee's length of service, the need to retain key jobs, experience or skills, affirmative action and qualifications (Rule 24 CGP)

Obligación del empleador de considerar solucionés alternativas al despido (transferencia, formación...):

Remarks:
  • Art. 38(1)(c)(ii) ELRA: the employer has to consult with workers' representatives "on any measures to avoid or minimize the intended retrenchments".
    According to the Code of Good Practice (2007), when assessing the fairness of a termination based on operational requirements, "the court shall scrutinize [such termination] carefully in order to ensure that the employer has considered all possible alternatives to termination before the termination is effected" (Rule 23(1) CGP).

    [See also art. 42(3)(b) ELRA: the severance pay is not paid "to an employee who is terminated on grounds of capacity, compatibility or operational requirements of the employer, but who unreasonably refuses to accept alternative employment with that employer or any other employer".]

Reglas de prioridad para la re-contratación: No

Remarks:
  • No statutory provision on preference in re-hiring in the ELRA.
    However, such preference is provided in the Code of Good Practice (rule 25 CGP) which reads as follows:
    - "(1) Retrenched employees shall be given preference if the employer re-hires employees with comparable qualifications, subject to the following:
    (a) the employee having expressed within a reasonable time form the date of termination, a desire to be re-hired; and
    (b) a time limit on preferential re-hiring shall also ideally form the subject of agreement between the employer and the union.
    (2) Where the above conditions are met, the employer shall take reasonable steps to inform the employee, including notification to the representative trade union, of the offer of re-employment."

+ show references

Definición de despido colectivo (número de empleados afectados):
No statutory definition of collective dismissal. However, the ELRA provides for specific requirements applicable to "termination based on operational requirements (retrenchment)".

Remarks:
  • Art. 38 ELRA.
    An operational requirement is defined in the ELRA as a requirement based on the economic, technological, structural or similar needs of the employer (art. 4).

Consultación previa con los sindicatos (representantes de los trabajadores):

Remarks:
  • Art. 38(1) ELRA:
    The employer is required to give notice, disclose all relevant information and consult any trade union recognized by the ELRA, any registered trade union with members in the workplace not represented by a recognized trade union, or any employees not represented by a recognised or registered trade union. Consultation shall cover the following issues:
    - the reasons for the intended retrenchment;
    - any measures to avoid or minimise the intended
    retrenchment;
    - the method of selection of the employees to be
    retrenched;
    - the timing of the retrenchments; and
    - severance pay in respect of the retrenchments.

Notificación a la administración: No

Remarks:
  • No mandatory notification to the administration.
    However, if the parties fail to reach an agreement during the consultation process, the matter shall be referred to the Commission for Mediation and Arbitration. This Commission which is an independent department of government composed of government representatives, and representatives of both employees and employers shall appoint a mediator to mediate the dispute (see: art. 38(2) ELRA, 86-87 ELRA and arts. 13 and 16 of the Labour Institutions Act of 2004).
    If an agreement is reached, it will be enforceable.
    However, according to rule 23(9) of the Code of Good Practice, the employer may not implement the retrenchment within 30 days of the referral to mediation, unless otherwise agreed between the parties. Once this period has elapsed, the employer may proceed with the retrenchment unilaterally. The fairness of the employer's action may be challenged and referred to arbitration, once mediation fails.

Notificación a los representantes de los trabajadores:

Remarks:
  • Art. 38(1)(d)(i) ELRA establishes a requirement for employers to give notice to any recognized trade union in the workplace.

Aprobación de la administración publica o de organismos judiciales: No

Acuerdo de los representantes de los trabajadores: No

Remarks:
  • No mandatory approval by the worker's representatives.
    However, if an agreement is reached during the consultation process it will be enforceable. If the parties fail to reach an agreement during the consultation process, the matter shall be referred to Commission for Mediation and Arbitration.
    The Commission for Mediation and Arbitration which is an independent department of government composed of government representatives, and representatives of both employees and employers shall appoint a mediator to mediate the dispute. (art. 38(2) ELRA, 86-87 ELRA and arts. 13 and 16 of the Labour Institutions Act of 2004).
    According to rule 23(9) of the Code of Good Practice, the employer may not implement the retrenchment within 30 days of the referral to mediation, unless otherwise agreed between the parties. Once this period has elapsed, the employer may proceed with the retrenchment unilaterally. The fairness of the employer's action may be challenged and referred to arbitration, once mediation fails.

Reglas de prioridad para los despidos colectivos (consideraciones sociales, edad, años de servicio): No

Remarks:
  • The ELRA does not provide for selection criteria. The ELRA only states that "the method of selection of the employees to be retrenched" is one of the elements to be discussed during the consultation process (art. 38(1)(c)(iii) ELRA).
    Nonetheless, the Code of Good Practices (2007) provides that when one or more employees are to be selected for termination from a number of employees, the criteria for their selection shall be agreed with the trade union. If criteria are not agreed, they shall be fair and objective. Selection criteria that are generally accepted as fair include: the employee's length of service, the need to retain key jobs, experience or skills, affirmative action and qualifications (Rule 24 CGP)

Obligación del empleador de considerar solucionés alternativas al despido (transferencia, formación...):

Remarks:
  • Art. 38(1)(c)(ii) ELRA: the employer has to consult with workers' representatives "on any measures to avoid or minimize the intended retrenchments".
    According to the Code of Good Practice (2007), when assessing the fairness of a termination based on operational requirements, "the court shall scrutinize [such termination] carefully in order to ensure that the employer has considered all possible alternatives to termination before the termination is effected" (Rule 23(1) CGP).

    [See also art. 42(3)(b) ELRA: the severance pay is not paid "to an employee who is terminated on grounds of capacity, compatibility or operational requirements of the employer, but who unreasonably refuses to accept alternative employment with that employer or any other employer".]

Reglas de prioridad para la re-contratación: No

Remarks:
  • No statutory provision on preference in re-hiring in the ELRA.
    However, such preference is provided in the Code of Good Practice (rule 25 CGP) which reads as follows:
    - "(1) Retrenched employees shall be given preference if the employer re-hires employees with comparable qualifications, subject to the following:
    (a) the employee having expressed within a reasonable time form the date of termination, a desire to be re-hired; and
    (b) a time limit on preferential re-hiring shall also ideally form the subject of agreement between the employer and the union.
    (2) Where the above conditions are met, the employer shall take reasonable steps to inform the employee, including notification to the representative trade union, of the offer of re-employment."

+ show references

Definición de despido colectivo (número de empleados afectados):
No statutory definition of collective dismissal. However, the ELRA provides for specific requirements applicable to "termination based on operational requirements (retrenchment)".

Remarks:
  • Art. 38 ELRA.
    An operational requirement is defined in the ELRA as a requirement based on the economic, technological, structural or similar needs of the employer (art. 4).

Consultación previa con los sindicatos (representantes de los trabajadores):

Remarks:
  • Art. 38(1) ELRA:
    The employer is required to give notice, disclose all relevant information and consult any trade union recognized by the ELRA, any registered trade union with members in the workplace not represented by a recognized trade union, or any employees not represented by a recognised or registered trade union. Consultation shall cover the following issues:
    - the reasons for the intended retrenchment;
    - any measures to avoid or minimise the intended
    retrenchment;
    - the method of selection of the employees to be
    retrenched;
    - the timing of the retrenchments; and
    - severance pay in respect of the retrenchments.

Notificación a la administración: No

Remarks:
  • No mandatory notification to the administration.
    However, if the parties fail to reach an agreement during the consultation process, the matter shall be referred to the Commission for Mediation and Arbitration. This Commission which is an independent department of government composed of government representatives, and representatives of both employees and employers shall appoint a mediator to mediate the dispute (see: art. 38(2) ELRA, 86-87 ELRA and arts. 13 and 16 of the Labour Institutions Act of 2004).
    If an agreement is reached, it will be enforceable.
    However, according to rule 23(9) of the Code of Good Practice, the employer may not implement the retrenchment within 30 days of the referral to mediation, unless otherwise agreed between the parties. Once this period has elapsed, the employer may proceed with the retrenchment unilaterally. The fairness of the employer's action may be challenged and referred to arbitration, once mediation fails.

Notificación a los representantes de los trabajadores:

Remarks:
  • Art. 38(1)(d)(i) ELRA establishes a requirement for employers to give notice to any recognized trade union in the workplace.

Aprobación de la administración publica o de organismos judiciales: No

Acuerdo de los representantes de los trabajadores: No

Remarks:
  • No mandatory approval by the worker's representatives.
    However, if an agreement is reached during the consultation process it will be enforceable. If the parties fail to reach an agreement during the consultation process, the matter shall be referred to Commission for Mediation and Arbitration.
    The Commission for Mediation and Arbitration which is an independent department of government composed of government representatives, and representatives of both employees and employers shall appoint a mediator to mediate the dispute. (art. 38(2) ELRA, 86-87 ELRA and arts. 13 and 16 of the Labour Institutions Act of 2004).
    According to rule 23(9) of the Code of Good Practice, the employer may not implement the retrenchment within 30 days of the referral to mediation, unless otherwise agreed between the parties. Once this period has elapsed, the employer may proceed with the retrenchment unilaterally. The fairness of the employer's action may be challenged and referred to arbitration, once mediation fails.

Reglas de prioridad para los despidos colectivos (consideraciones sociales, edad, años de servicio): No

Remarks:
  • The ELRA does not provide for selection criteria. The ELRA only states that "the method of selection of the employees to be retrenched" is one of the elements to be discussed during the consultation process (art. 38(1)(c)(iii) ELRA).
    Nonetheless, the Code of Good Practices (2007) provides that when one or more employees are to be selected for termination from a number of employees, the criteria for their selection shall be agreed with the trade union. If criteria are not agreed, they shall be fair and objective. Selection criteria that are generally accepted as fair include: the employee's length of service, the need to retain key jobs, experience or skills, affirmative action and qualifications (Rule 24 CGP)

Obligación del empleador de considerar solucionés alternativas al despido (transferencia, formación...):

Remarks:
  • Art. 38(1)(c)(ii) ELRA: the employer has to consult with workers' representatives "on any measures to avoid or minimize the intended retrenchments".
    According to the Code of Good Practice (2007), when assessing the fairness of a termination based on operational requirements, "the court shall scrutinize [such termination] carefully in order to ensure that the employer has considered all possible alternatives to termination before the termination is effected" (Rule 23(1) CGP).

    [See also art. 42(3)(b) ELRA: the severance pay is not paid "to an employee who is terminated on grounds of capacity, compatibility or operational requirements of the employer, but who unreasonably refuses to accept alternative employment with that employer or any other employer".]

Reglas de prioridad para la re-contratación: No

Remarks:
  • No statutory provision on preference in re-hiring in the ELRA.
    However, such preference is provided in the Code of Good Practice (rule 25 CGP) which reads as follows:
    - "(1) Retrenched employees shall be given preference if the employer re-hires employees with comparable qualifications, subject to the following:
    (a) the employee having expressed within a reasonable time form the date of termination, a desire to be re-hired; and
    (b) a time limit on preferential re-hiring shall also ideally form the subject of agreement between the employer and the union.
    (2) Where the above conditions are met, the employer shall take reasonable steps to inform the employee, including notification to the representative trade union, of the offer of re-employment."

+ show references

Definición de despido colectivo (número de empleados afectados):
No statutory definition of collective dismissal. However, the ELRA provides for specific requirements applicable to "termination based on operational requirements (retrenchment)".

Remarks:
  • Art. 38 ELRA.
    An operational requirement is defined in the ELRA as a requirement based on the economic, technological, structural or similar needs of the employer (art. 4).

Consultación previa con los sindicatos (representantes de los trabajadores):

Remarks:
  • Art. 38(1) ELRA:
    The employer is required to give notice, disclose all relevant information and consult any trade union recognized by the ELRA, any registered trade union with members in the workplace not represented by a recognized trade union, or any employees not represented by a recognised or registered trade union. Consultation shall cover the following issues:
    - the reasons for the intended retrenchment;
    - any measures to avoid or minimise the intended
    retrenchment;
    - the method of selection of the employees to be
    retrenched;
    - the timing of the retrenchments; and
    - severance pay in respect of the retrenchments.

Notificación a la administración: No

Remarks:
  • No mandatory notification to the administration.
    However, if the parties fail to reach an agreement during the consultation process, the matter shall be referred to the Commission for Mediation and Arbitration. This Commission which is an independent department of government composed of government representatives, and representatives of both employees and employers shall appoint a mediator to mediate the dispute (see: art. 38(2) ELRA, 86-87 ELRA and arts. 13 and 16 of the Labour Institutions Act of 2004).
    If an agreement is reached, it will be enforceable.
    However, according to rule 23(9) of the Code of Good Practice, the employer may not implement the retrenchment within 30 days of the referral to mediation, unless otherwise agreed between the parties. Once this period has elapsed, the employer may proceed with the retrenchment unilaterally. The fairness of the employer's action may be challenged and referred to arbitration, once mediation fails.

Notificación a los representantes de los trabajadores:

Remarks:
  • Art. 38(1)(d)(i) ELRA establishes a requirement for employers to give notice to any recognized trade union in the workplace.

Aprobación de la administración publica o de organismos judiciales: No

Acuerdo de los representantes de los trabajadores: No

Remarks:
  • No mandatory approval by the worker's representatives.
    However, if an agreement is reached during the consultation process it will be enforceable. If the parties fail to reach an agreement during the consultation process, the matter shall be referred to Commission for Mediation and Arbitration.
    The Commission for Mediation and Arbitration which is an independent department of government composed of government representatives, and representatives of both employees and employers shall appoint a mediator to mediate the dispute. (art. 38(2) ELRA, 86-87 ELRA and arts. 13 and 16 of the Labour Institutions Act of 2004).
    According to rule 23(9) of the Code of Good Practice, the employer may not implement the retrenchment within 30 days of the referral to mediation, unless otherwise agreed between the parties. Once this period has elapsed, the employer may proceed with the retrenchment unilaterally. The fairness of the employer's action may be challenged and referred to arbitration, once mediation fails.

Reglas de prioridad para los despidos colectivos (consideraciones sociales, edad, años de servicio): No

Remarks:
  • The ELRA does not provide for selection criteria. The ELRA only states that "the method of selection of the employees to be retrenched" is one of the elements to be discussed during the consultation process (art. 38(1)(c)(iii) ELRA).
    Nonetheless, the Code of Good Practices (2007) provides that when one or more employees are to be selected for termination from a number of employees, the criteria for their selection shall be agreed with the trade union. If criteria are not agreed, they shall be fair and objective. Selection criteria that are generally accepted as fair include: the employee's length of service, the need to retain key jobs, experience or skills, affirmative action and qualifications (Rule 24 CGP)

Obligación del empleador de considerar solucionés alternativas al despido (transferencia, formación...):

Remarks:
  • Art. 38(1)(c)(ii) ELRA: the employer has to consult with workers' representatives "on any measures to avoid or minimize the intended retrenchments".
    According to the Code of Good Practice (2007), when assessing the fairness of a termination based on operational requirements, "the court shall scrutinize [such termination] carefully in order to ensure that the employer has considered all possible alternatives to termination before the termination is effected" (Rule 23(1) CGP).

    [See also art. 42(3)(b) ELRA: the severance pay is not paid "to an employee who is terminated on grounds of capacity, compatibility or operational requirements of the employer, but who unreasonably refuses to accept alternative employment with that employer or any other employer".]

Reglas de prioridad para la re-contratación: No

Remarks:
  • No statutory provision on preference in re-hiring in the ELRA.
    However, such preference is provided in the Code of Good Practice (rule 25 CGP) which reads as follows:
    - "(1) Retrenched employees shall be given preference if the employer re-hires employees with comparable qualifications, subject to the following:
    (a) the employee having expressed within a reasonable time form the date of termination, a desire to be re-hired; and
    (b) a time limit on preferential re-hiring shall also ideally form the subject of agreement between the employer and the union.
    (2) Where the above conditions are met, the employer shall take reasonable steps to inform the employee, including notification to the representative trade union, of the offer of re-employment."

+ show references

Definición de despido colectivo (número de empleados afectados):
No statutory definition of collective dismissal. However, the ELRA provides for specific requirements applicable to "termination based on operational requirements (retrenchment)".

Remarks:
  • Art. 38 ELRA.
    An operational requirement is defined in the ELRA as a requirement based on the economic, technological, structural or similar needs of the employer (art. 4).

Consultación previa con los sindicatos (representantes de los trabajadores):

Remarks:
  • Art. 38(1) ELRA:
    The employer is required to give notice, disclose all relevant information and consult any trade union recognized by the ELRA, any registered trade union with members in the workplace not represented by a recognized trade union, or any employees not represented by a recognised or registered trade union. Consultation shall cover the following issues:
    - the reasons for the intended retrenchment;
    - any measures to avoid or minimise the intended
    retrenchment;
    - the method of selection of the employees to be
    retrenched;
    - the timing of the retrenchments; and
    - severance pay in respect of the retrenchments.

Notificación a la administración: No

Remarks:
  • No mandatory notification to the administration.
    However, if the parties fail to reach an agreement during the consultation process, the matter shall be referred to the Commission for Mediation and Arbitration. This Commission which is an independent department of government composed of government representatives, and representatives of both employees and employers shall appoint a mediator to mediate the dispute (see: art. 38(2) ELRA, 86-87 ELRA and arts. 13 and 16 of the Labour Institutions Act of 2004).
    If an agreement is reached, it will be enforceable.
    However, according to rule 23(9) of the Code of Good Practice, the employer may not implement the retrenchment within 30 days of the referral to mediation, unless otherwise agreed between the parties. Once this period has elapsed, the employer may proceed with the retrenchment unilaterally. The fairness of the employer's action may be challenged and referred to arbitration, once mediation fails.

Notificación a los representantes de los trabajadores:

Remarks:
  • Art. 38(1)(d)(i) ELRA establishes a requirement for employers to give notice to any recognized trade union in the workplace.

Aprobación de la administración publica o de organismos judiciales: No

Acuerdo de los representantes de los trabajadores: No

Remarks:
  • No mandatory approval by the worker's representatives.
    However, if an agreement is reached during the consultation process it will be enforceable. If the parties fail to reach an agreement during the consultation process, the matter shall be referred to Commission for Mediation and Arbitration.
    The Commission for Mediation and Arbitration which is an independent department of government composed of government representatives, and representatives of both employees and employers shall appoint a mediator to mediate the dispute. (art. 38(2) ELRA, 86-87 ELRA and arts. 13 and 16 of the Labour Institutions Act of 2004).
    According to rule 23(9) of the Code of Good Practice, the employer may not implement the retrenchment within 30 days of the referral to mediation, unless otherwise agreed between the parties. Once this period has elapsed, the employer may proceed with the retrenchment unilaterally. The fairness of the employer's action may be challenged and referred to arbitration, once mediation fails.

Reglas de prioridad para los despidos colectivos (consideraciones sociales, edad, años de servicio): No

Remarks:
  • The ELRA does not provide for selection criteria. The ELRA only states that "the method of selection of the employees to be retrenched" is one of the elements to be discussed during the consultation process (art. 38(1)(c)(iii) ELRA).
    Nonetheless, the Code of Good Practices (2007) provides that when one or more employees are to be selected for termination from a number of employees, the criteria for their selection shall be agreed with the trade union. If criteria are not agreed, they shall be fair and objective. Selection criteria that are generally accepted as fair include: the employee's length of service, the need to retain key jobs, experience or skills, affirmative action and qualifications (Rule 24 CGP)

Obligación del empleador de considerar solucionés alternativas al despido (transferencia, formación...):

Remarks:
  • Art. 38(1)(c)(ii) ELRA: the employer has to consult with workers' representatives "on any measures to avoid or minimize the intended retrenchments".
    According to the Code of Good Practice (2007), when assessing the fairness of a termination based on operational requirements, "the court shall scrutinize [such termination] carefully in order to ensure that the employer has considered all possible alternatives to termination before the termination is effected" (Rule 23(1) CGP).

    [See also art. 42(3)(b) ELRA: the severance pay is not paid "to an employee who is terminated on grounds of capacity, compatibility or operational requirements of the employer, but who unreasonably refuses to accept alternative employment with that employer or any other employer".]

Reglas de prioridad para la re-contratación: No

Remarks:
  • No statutory provision on preference in re-hiring in the ELRA.
    However, such preference is provided in the Code of Good Practice (rule 25 CGP) which reads as follows:
    - "(1) Retrenched employees shall be given preference if the employer re-hires employees with comparable qualifications, subject to the following:
    (a) the employee having expressed within a reasonable time form the date of termination, a desire to be re-hired; and
    (b) a time limit on preferential re-hiring shall also ideally form the subject of agreement between the employer and the union.
    (2) Where the above conditions are met, the employer shall take reasonable steps to inform the employee, including notification to the representative trade union, of the offer of re-employment."

+ show references

Definición de despido colectivo (número de empleados afectados):
No statutory definition of collective dismissal. However, the ELRA provides for specific requirements applicable to "termination based on operational requirements (retrenchment)".

Remarks:
  • Art. 38 ELRA.
    An operational requirement is defined in the ELRA as a requirement based on the economic, technological, structural or similar needs of the employer (art. 4).

Consultación previa con los sindicatos (representantes de los trabajadores):

Remarks:
  • Art. 38(1) ELRA:
    The employer is required to give notice, disclose all relevant information and consult any trade union recognized by the ELRA, any registered trade union with members in the workplace not represented by a recognized trade union, or any employees not represented by a recognised or registered trade union. Consultation shall cover the following issues:
    - the reasons for the intended retrenchment;
    - any measures to avoid or minimise the intended
    retrenchment;
    - the method of selection of the employees to be
    retrenched;
    - the timing of the retrenchments; and
    - severance pay in respect of the retrenchments.

Notificación a la administración: No

Remarks:
  • No mandatory notification to the administration.
    However, if the parties fail to reach an agreement during the consultation process, the matter shall be referred to the Commission for Mediation and Arbitration. This Commission which is an independent department of government composed of government representatives, and representatives of both employees and employers shall appoint a mediator to mediate the dispute (see: art. 38(2) ELRA, 86-87 ELRA and arts. 13 and 16 of the Labour Institutions Act of 2004).
    If an agreement is reached, it will be enforceable.
    However, according to rule 23(9) of the Code of Good Practice, the employer may not implement the retrenchment within 30 days of the referral to mediation, unless otherwise agreed between the parties. Once this period has elapsed, the employer may proceed with the retrenchment unilaterally. The fairness of the employer's action may be challenged and referred to arbitration, once mediation fails.

Notificación a los representantes de los trabajadores:

Remarks:
  • Art. 38(1)(d)(i) ELRA establishes a requirement for employers to give notice to any recognized trade union in the workplace.

Aprobación de la administración publica o de organismos judiciales: No

Acuerdo de los representantes de los trabajadores: No

Remarks:
  • No mandatory approval by the worker's representatives.
    However, if an agreement is reached during the consultation process it will be enforceable. If the parties fail to reach an agreement during the consultation process, the matter shall be referred to Commission for Mediation and Arbitration The Commission for Mediation and Arbitration which is an independent department of government composed of government representatives, and representatives of both employees and employers shall appoint a mediator to mediate the dispute. (art. 38(2) ELRA, 86-87 ELRA and arts. 13 and 16 of the Labour Institutions Act of 2004).
    According to rule 23(9) of the Code of Good Practice, the employer may not implement the retrenchment within 30 days of the referral to mediation, unless otherwise agreed between the parties. Once this period has elapsed, the employer may proceed with the retrenchment unilaterally. The fairness of the employer's action may be challenged and referred to arbitration, once mediation fails.

Reglas de prioridad para los despidos colectivos (consideraciones sociales, edad, años de servicio): No

Remarks:
  • The ELRA does not provide for selection criteria. The ELRA only states that "the method of selection of the employees to be retrenched" is one of the elements to be discussed during the consultation process (art. 38(1)(c)(iii) ELRA).
    Nonetheless, the Code of Good Practices (2007) provides that when one or more employees are to be selected for termination from a number of employees, the criteria for their selection shall be agreed with the trade union. If criteria are not agreed, they shall be fair and objective. Selection criteria that are generally accepted as fair include: the employee's length of service, the need to retain key jobs, experience or skills, affirmative action and qualifications (Rule 24 CGP)

Obligación del empleador de considerar solucionés alternativas al despido (transferencia, formación...):

Remarks:
  • Art. 38(1)(c)(ii) ELRA: the employer has to consult with workers' representatives "on any measures to avoid or minimize the intended retrenchments".
    According to the Code of Good Practice (2007), when assessing the fairness of a termination based on operational requirements, "the court shall scrutinize [such termination] carefully in order to ensure that the employer has considered all possible alternatives to termination before the termination is effected" (Rule 23(1) CGP).

    [See also art. 42(3)(b) ELRA: the severance pay is not paid "to an employee who is terminated on grounds of capacity, compatibility or operational requirements of the employer, but who unreasonably refuses to accept alternative employment with that employer or any other employer".]

Reglas de prioridad para la re-contratación: No

Remarks:
  • No statutory provision on preference in re-hiring in the ELRA.
    However, such preference is provided in the Code of Good Practice (rule 25 CGP) which reads as follows:
    - "(1) Retrenched employees shall be given preference if the employer re-hires employees with comparable qualifications, subject to the following:
    (a) the employee having expressed within a reasonable time form the date of termination, a desire to be re-hired; and
    (b) a time limit on preferential re-hiring shall also ideally form the subject of agreement between the employer and the union.
    (2) Where the above conditions are met, the employer shall take reasonable steps to inform the employee, including notification to the representative trade union, of the offer of re-employment."

+ show references

Definición de despido colectivo (número de empleados afectados):
No statutory definition of collective dismissal. However, the ELRA provides for specific requirements applicable to "termination based on operational requirements (retrenchment)".

Remarks:
  • Art. 38 ELRA.
    An operational requirement is defined in the ELRA as a requirement based on the economic, technological, structural or similar needs of the employer (art. 4).

Consultación previa con los sindicatos (representantes de los trabajadores):

Remarks:
  • Art. 38(1) ELRA:
    The employer is required to give notice, disclose all relevant information and consult any trade union recognized by the ELRA, any registered trade union with members in the workplace not represented by a recognized trade union, or any employees not represented by a recognised or registered trade union. Consultation shall cover the following issues:
    - the reasons for the intended retrenchment;
    - any measures to avoid or minimise the intended
    retrenchment;
    - the method of selection of the employees to be
    retrenched;
    - the timing of the retrenchments; and
    - severance pay in respect of the retrenchments.

Notificación a la administración: No

Remarks:
  • No mandatory notification to the administration.
    However, if the parties fail to reach an agreement during the consultation process, the matter shall be referred to the Commission for Mediation and Arbitration. This Commission which is an independent department of government composed of government representatives, and representatives of both employees and employers shall appoint a mediator to mediate the dispute (see: art. 38(2) ELRA, 86-87 ELRA and arts. 13 and 16 of the Labour Institutions Act of 2004).
    If an agreement is reached, it will be enforceable.
    However, according to rule 23(9) of the Code of Good Practice, the employer may not implement the retrenchment within 30 days of the referral to mediation, unless otherwise agreed between the parties. Once this period has elapsed, the employer may proceed with the retrenchment unilaterally. The fairness of the employer's action may be challenged and referred to arbitration, once mediation fails.

Notificación a los representantes de los trabajadores:

Remarks:
  • Art. 38(1) ELRA.

Aprobación de la administración publica o de organismos judiciales: No

Acuerdo de los representantes de los trabajadores: No

Remarks:
  • No mandatory approval by the worker's representatives.
    However, if an agreement is reached during the consultation process it will be enforceable. If the parties fail to reach an agreement during the consultation process, the matter shall be referred to Commission for Mediation and Arbitration The Commission for Mediation and Arbitration which is an independent department of government composed of government representatives, and representatives of both employees and employers shall appoint a mediator to mediate the dispute. (art. 38(2) ELRA, 86-87 ELRA and arts. 13 and 16 of the Labour Institutions Act of 2004).
    According to rule 23(9) of the Code of Good Practice, the employer may not implement the retrenchment within 30 days of the referral to mediation, unless otherwise agreed between the parties. Once this period has elapsed, the employer may proceed with the retrenchment unilaterally. The fairness of the employer's action may be challenged and referred to arbitration, once mediation fails.

Reglas de prioridad para los despidos colectivos (consideraciones sociales, edad, años de servicio): No

Remarks:
  • The ELRA does not provide for selection criteria. The ELRA only states that "the method of selection of the employees to be retrenched" is one of the elements to be discussed during the consultation process (art. 38(1)(c)(iii) ELRA).
    Nonetheless, the Code of Good Practices (2007) provides that when one or more employees are to be selected for termination from a number of employees, the criteria for their selection shall be agreed with the trade union. If criteria are not agreed, they shall be fair and objective. Selection criteria that are generally accepted as fair include: the employee's length of service, the need to retain key jobs, experience or skills, affirmative action and qualifications (Rule 24 CGP)

Obligación del empleador de considerar solucionés alternativas al despido (transferencia, formación...):

Remarks:
  • Art. 38(1)(c)(ii) ELRA: the employer has to consult with workers' representatives "on any measures to avoid or minimize the intended retrenchments".
    According to the Code of Good Practice (2007), when assessing the fairness of a termination based on operational requirements, "the court shall scrutinize [such termination] carefully in order to ensure that the employer has considered all possible alternatives to termination before the termination is effected" (Rule 23(1) CGP).

    [See also art. 42(3)(b) ELRA: the severance pay is not paid "to an employee who is terminated on grounds of capacity, compatibility or operational requirements of the employer, but who unreasonably refuses to accept alternative employment with that employer or any other employer".]

Reglas de prioridad para la re-contratación: No

Remarks:
  • No statutory provision on preference in re-hiring in the ELRA.
    However, such preference is provided in the Code of Good Practice (rule 25 CGP) which reads as follows:
    - "(1) Retrenched employees shall be given preference if the employer re-hires employees with comparable qualifications, subject to the following:
    (a) the employee having expressed within a reasonable time form the date of termination, a desire to be re-hired; and
    (b) a time limit on preferential re-hiring shall also ideally form the subject of agreement between the employer and the union.
    (2) Where the above conditions are met, the employer shall take reasonable steps to inform the employee, including notification to the representative trade union, of the offer of re-employment."

+ show references

Definición de despido colectivo (número de empleados afectados):
No statutory definition of collective dismissal. However, the ELRA provides for specific requirements applicable to "termination based on operational requirements (retrenchment)".

Remarks:
  • Art. 38 ELRA.
    An operational requirement is defined in the ELRA as a requirement based on the economic, technological, structural or similar needs of the employer (art. 4).

Consultación previa con los sindicatos (representantes de los trabajadores):

Remarks:
  • Art. 38(1) ELRA:
    The employer is required to give notice, disclose all relevant information and consult any trade union recognized by the ELRA, any registered trade union with members in the workplace not represented by a recognized trade union, or any employees not represented by a recognised or registered trade union. Consultation shall cover the following issues:
    - the reasons for the intended retrenchment;
    - any measures to avoid or minimise the intended
    retrenchment;
    - the method of selection of the employees to be
    retrenched;
    - the timing of the retrenchments; and
    - severance pay in respect of the retrenchments.

Notificación a la administración: No

Remarks:
  • No mandatory notification to the administration.
    However, if the parties fail to reach an agreement during the consultation process, the matter shall be referred to the Commission for Mediation and Arbitration. This Commission which is an independent department of government composed of government representatives, and representatives of both employees and employers shall appoint a mediator to mediate the dispute (see: art. 38(2) ELRA, 86-87 ELRA and arts. 13 and 16 of the Labour Institutions Act of 2004).
    If an agreement is reached, it will be enforceable.
    However, according to rule 23(9) of the Code of Good Practice, the employer may not implement the retrenchment within 30 days of the referral to mediation, unless otherwise agreed between the parties. Once this period has elapsed, the employer may proceed with the retrenchment unilaterally. The fairness of the employer's action may be challenged and referred to arbitration, once mediation fails.

Notificación a los representantes de los trabajadores:

Remarks:
  • Art. 38(1) ELRA.

Aprobación de la administración publica o de organismos judiciales: No

Acuerdo de los representantes de los trabajadores: No

Remarks:
  • No mandatory approval by the worker's representatives.
    However, if an agreement is reached during the consultation process it will be enforceable. If the parties fail to reach an agreement during the consultation process, the matter shall be referred to Commission for Mediation and Arbitration The Commission for Mediation and Arbitration which is an independent department of government composed of government representatives, and representatives of both employees and employers shall appoint a mediator to mediate the dispute. (art. 38(2) ELRA, 86-87 ELRA and arts. 13 and 16 of the Labour Institutions Act of 2004).
    According to rule 23(9) of the Code of Good Practice, the employer may not implement the retrenchment within 30 days of the referral to mediation, unless otherwise agreed between the parties. Once this period has elapsed, the employer may proceed with the retrenchment unilaterally. The fairness of the employer's action may be challenged and referred to arbitration, once mediation fails.

Reglas de prioridad para los despidos colectivos (consideraciones sociales, edad, años de servicio): No

Remarks:
  • The ELRA does not provide for selection criteria. The ELRA only states that "the method of selection of the employees to be retrenched" is one of the elements to be discussed during the consultation process (art. 38(1)(c)(iii) ELRA).
    Nonetheless, the Code of Good Practices (2007) provides that when one or more employees are to be selected for termination from a number of employees, the criteria for their selection shall be agreed with the trade union. If criteria are not agreed, they shall be fair and objective. Selection criteria that are generally accepted as fair include: the employee's length of service, the need to retain key jobs, experience or skills, affirmative action and qualifications (Rule 24 CGP)

Obligación del empleador de considerar solucionés alternativas al despido (transferencia, formación...):

Remarks:
  • Art. 38(1)(c)(ii) ELRA: the employer has to consult with workers' representatives "on any measures to avoid or minimize the intended retrenchments".
    According to the Code of Good Practice (2007), when assessing the fairness of a termination based on operational requirements, "the court shall scrutinize [such termination] carefully in order to ensure that the employer has considered all possible alternatives to termination before the termination is effected" (Rule 23(1) CGP).

    [See also art. 42(3)(b) ELRA: the severance pay is not paid "to an employee who is terminated on grounds of capacity, compatibility or operational requirements of the employer, but who unreasonably refuses to accept alternative employment with that employer or any other employer".]

Reglas de prioridad para la re-contratación: No

Remarks:
  • No statutory provision on preference in re-hiring in the ELRA.
    However, such preference is provided in the Code of Good Practice (rule 25 CGP) which reads as follows:
    - "(1) Retrenched employees shall be given preference if the employer re-hires employees with comparable qualifications, subject to the following:
    (a) the employee having expressed within a reasonable time form the date of termination, a desire to be re-hired; and
    (b) a time limit on preferential re-hiring shall also ideally form the subject of agreement between the employer and the union.
    (2) Where the above conditions are met, the employer shall take reasonable steps to inform the employee, including notification to the representative trade union, of the offer of re-employment."

+ show references

Definición de despido colectivo (número de empleados afectados):
No statutory definition of collective dismissal. However, the ELRA provides for specific requirements applicable to "termination based on operational requirements (retrenchment)".

Remarks:
  • Art. 38 ELRA.
    An operational requirement is defined in the ELRA as a requirement based on the economic, technological, structural or similar needs of the employer (art. 4).

Consultación previa con los sindicatos (representantes de los trabajadores):

Remarks:
  • Art. 38(1) ELRA:
    The employer is required to give notice, disclose all relevant information and consult any trade union recognized by the ELRA, any registered trade union with members in the workplace not represented by a recognized trade union, or any employees not represented by a recognised or registered trade union. Consultation shall cover the following issues:
    - the reasons for the intended retrenchment;
    - any measures to avoid or minimise the intended
    retrenchment;
    - the method of selection of the employees to be
    retrenched;
    - the timing of the retrenchments; and
    - severance pay in respect of the retrenchments.

Notificación a la administración: No

Remarks:
  • No mandatory notification to the administration.
    However, if the parties fail to reach an agreement during the consultation process, the matter shall be referred to the Commission for Mediation and Arbitration. This Commission which is an independent department of government composed of government representatives, and representatives of both employees and employers shall appoint a mediator to mediate the dispute (see: art. 38(2) ELRA, 86-87 ELRA and arts. 13 and 16 of the Labour Institutions Act of 2004).
    If an agreement is reached, it will be enforceable.
    However, according to rule 23(9) of the Code of Good Practice, the employer may not implement the retrenchment within 30 days of the referral to mediation, unless otherwise agreed between the parties. Once this period has elapsed, the employer may proceed with the retrenchment unilaterally. The fairness of the employer's action may be challenged and referred to arbitration, once mediation fails.

Notificación a los representantes de los trabajadores:

Remarks:
  • Art. 38(1) ELRA.

Aprobación de la administración publica o de organismos judiciales: No

Acuerdo de los representantes de los trabajadores: No

Remarks:
  • No mandatory approval by the worker's representatives.
    However, if an agreement is reached during the consultation process it will be enforceable. If the parties fail to reach an agreement during the consultation process, the matter shall be referred to Commission for Mediation and Arbitration The Commission for Mediation and Arbitration which is an independent department of government composed of government representatives, and representatives of both employees and employers shall appoint a mediator to mediate the dispute. (art. 38(2) ELRA, 86-87 ELRA and arts. 13 and 16 of the Labour Institutions Act of 2004).
    According to rule 23(9) of the Code of Good Practice, the employer may not implement the retrenchment within 30 days of the referral to mediation, unless otherwise agreed between the parties. Once this period has elapsed, the employer may proceed with the retrenchment unilaterally. The fairness of the employer's action may be challenged and referred to arbitration, once mediation fails.

Reglas de prioridad para los despidos colectivos (consideraciones sociales, edad, años de servicio): No

Remarks:
  • The ELRA does not provide for selection criteria. The ELRA only states that "the method of selection of the employees to be retrenched" is one of the elements to be discussed during the consultation process (art. 38(1)(c)(iii) ELRA).
    Nonetheless, the Code of Good Practices (2007) provides that when one or more employees are to be selected for termination from a number of employees, the criteria for their selection shall be agreed with the trade union. If criteria are not agreed, they shall be fair and objective. Selection criteria that are generally accepted as fair include: the employee's length of service, the need to retain key jobs, experience or skills, affirmative action and qualifications (Rule 24 CGP)

Obligación del empleador de considerar solucionés alternativas al despido (transferencia, formación...):

Remarks:
  • Art. 38(1)(c)(ii) ELRA: the employer has to consult with workers' representatives "on any measures to avoid or minimize the intended retrenchments".
    According to the Code of Good Practice (2007), when assessing the fairness of a termination based on operational requirements, "the court shall scrutinize [such termination] carefully in order to ensure that the employer has considered all possible alternatives to termination before the termination is effected" (Rule 23(1) CGP).

    [See also art. 42(3)(b) ELRA: the severance pay is not paid "to an employee who is terminated on grounds of capacity, compatibility or operational requirements of the employer, but who unreasonably refuses to accept alternative employment with that employer or any other employer".]

Reglas de prioridad para la re-contratación: No

Remarks:
  • No statutory provision on preference in re-hiring in the ELRA.
    However, such preference is provided in the Code of Good Practice (rule 25 CGP) which reads as follows:
    - "(1) Retrenched employees shall be given preference if the employer re-hires employees with comparable qualifications, subject to the following:
    (a) the employee having expressed within a reasonable time form the date of termination, a desire to be re-hired; and
    (b) a time limit on preferential re-hiring shall also ideally form the subject of agreement between the employer and the union.
    (2) Where the above conditions are met, the employer shall take reasonable steps to inform the employee, including notification to the representative trade union, of the offer of re-employment."

+ show references

Definición de despido colectivo (número de empleados afectados):
No statutory definition of collective dismissal. However, the ELRA provides for specific requirements applicable to "termination based on operational requirements (retrenchment)".

Remarks:
  • Art. 38 ELRA.
    An operational requirement is defined in the ELRA as a requirement based on the economic, technological, structural or similar needs of the employer (art. 4).

Consultación previa con los sindicatos (representantes de los trabajadores):

Remarks:
  • Art. 38(1) ELRA:
    The employer is required to give notice, disclose all relevant information and consult any trade union recognized by the ELRA, any registered trade union with members in the workplace not represented by a recognized trade union, or any employees not represented by a recognised or registered trade union. Consultation shall cover the following issues:
    - the reasons for the intended retrenchment;
    - any measures to avoid or minimise the intended
    retrenchment;
    - the method of selection of the employees to be
    retrenched;
    - the timing of the retrenchments; and
    - severance pay in respect of the retrenchments.

Notificación a la administración: No

Remarks:
  • No mandatory notification to the administration.
    However, if the parties fail to reach an agreement during the consultation process, the matter shall be referred to the Commission for Mediation and Arbitration. This Commission which is an independent department of government composed of government representatives, and representatives of both employees and employers shall appoint a mediator to mediate the dispute (see: art. 38(2) ELRA, 86-87 ELRA and arts. 13 and 16 of the Labour Institutions Act of 2004).
    If an agreement is reached, it will be enforceable.
    However, according to rule 23(9) of the Code of Good Practice, the employer may not implement the retrenchment within 30 days of the referral to mediation, unless otherwise agreed between the parties. Once this period has elapsed, the employer may proceed with the retrenchment unilaterally. The fairness of the employer's action may be challenged and referred to arbitration, once mediation fails.

Notificación a los representantes de los trabajadores:

Remarks:
  • Art. 38(1) ELRA.

Aprobación de la administración publica o de organismos judiciales: No

Acuerdo de los representantes de los trabajadores: No

Remarks:
  • No mandatory approval by the worker's representatives.
    However, if an agreement is reached during the consultation process it will be enforceable. If the parties fail to reach an agreement during the consultation process, the matter shall be referred to Commission for Mediation and Arbitration The Commission for Mediation and Arbitration which is an independent department of government composed of government representatives, and representatives of both employees and employers shall appoint a mediator to mediate the dispute. (art. 38(2) ELRA, 86-87 ELRA and arts. 13 and 16 of the Labour Institutions Act of 2004).
    According to rule 23(9) of the Code of Good Practice, the employer may not implement the retrenchment within 30 days of the referral to mediation, unless otherwise agreed between the parties. Once this period has elapsed, the employer may proceed with the retrenchment unilaterally. The fairness of the employer's action may be challenged and referred to arbitration, once mediation fails.

Reglas de prioridad para los despidos colectivos (consideraciones sociales, edad, años de servicio): No

Remarks:
  • The ELRA does not provide for selection criteria. The ELRA only states that "the method of selection of the employees to be retrenched" is one of the elements to be discussed during the consultation process (art. 38(1)(c)(iii) ELRA).
    Nonetheless, the Code of Good Practices (2007) provides that when one or more employees are to be selected for termination from a number of employees, the criteria for their selection shall be agreed with the trade union. If criteria are not agreed, they shall be fair and objective. Selection criteria that are generally accepted as fair include: the employee's length of service, the need to retain key jobs, experience or skills, affirmative action and qualifications (Rule 24 CGP)

Obligación del empleador de considerar solucionés alternativas al despido (transferencia, formación...):

Remarks:
  • Art. 38(1)(c)(ii) ELRA: the employer has to consult with workers' representatives "on any measures to avoid or minimize the intended retrenchments".
    According to the Code of Good Practice (2007), when assessing the fairness of a termination based on operational requirements, "the court shall scrutinize [such termination] carefully in order to ensure that the employer has considered all possible alternatives to termination before the termination is effected" (Rule 23(1) CGP).

    [See also art. 42(3)(b) ELRA: the severance pay is not paid "to an employee who is terminated on grounds of capacity, compatibility or operational requirements of the employer, but who unreasonably refuses to accept alternative employment with that employer or any other employer".]

Reglas de prioridad para la re-contratación: No

Remarks:
  • No statutory provision on preference in re-hiring in the ELRA.
    However, such preference is provided in the Code of Good Practice (rule 25 CGP) which reads as follows:
    - "(1) Retrenched employees shall be given preference if the employer re-hires employees with comparable qualifications, subject to the following:
    (a) the employee having expressed within a reasonable time form the date of termination, a desire to be re-hired; and
    (b) a time limit on preferential re-hiring shall also ideally form the subject of agreement between the employer and the union.
    (2) Where the above conditions are met, the employer shall take reasonable steps to inform the employee, including notification to the representative trade union, of the offer of re-employment."