By Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawvideos.co.za
In Clive Naicker vs Q Data Consulting (2002, 23 ILJ 730) the Labour Court found that, in certain cases, it is acceptable to require potential retrenchees to re-apply for their own jobs. In that specific case this was because:
- In the IT industry employees need to have the most up to date skills
- The use of this criterion is akin to the legally acceptable criterion of ‘Necessary Skills’. That is, the employer is entitled to select for retrenchment those employees who do not have the skills necessary for the job.
Despite this finding employers are warned to be very careful when using this criterion as its use is acceptable in very restricted circumstances.
In the matter of Senyamishi and five others vs Right to Care NPC (Lex Info 1 April 2026. Labour Court case JS53/23) six employees were retrenched after failing to qualify for their own jobs. The Labour Court found that:
- While the specific programme on which the employees had been working had suffered a marked reduction in funding the employer’s over all financial circumstances did not justify the need to retrench
- Under the circumstances there was no rational reason for using job applications as a fair and objective criterion for choosing retrenchees
- The employer had 650 vacancies that could have been considered for accommodating the retrenchees
- The employer had begun actively recruiting for the filling of vacancies shortly after it issued its section 189 notification. This indicated that the employer had already decided to retrench the employees before the conclusion of the consultation process
- The section 189(3) notice issued by the defendant failed to disclose alternatives it had considered prior to the decision to retrench.
- The reliance on the use of job re-applications as a selection criterion, instead of LIFO which had been proposed by the employees, constituted an unjustified fresh recruitment process
- There was neither evidence that the six employees lacked the needed qualifications nor that those who did get the jobs were better suited
- Even had job re-applications been a fair criterion for choosing the retrenchees it had not been implemented in a fair manner
- The employer failed to engage in good faith consultations.
Based on the above the Court found the dismissals procedurally and substantively unfair and awarded each of the six employees six months’ compensation. Even if the six employees had earned only R20 000 per month the compensation award would have amounted to R720 000. This excludes the legal costs and all the time spent by the employer on preparing and presenting its case.
The fact that an employer could have got it so wrong even though South Africa’s retrenchment laws have been in place for several decades highlights the fact that employers simply don’t understand these laws.
This means that all decision makers need to be trained to understand the law of retrenchment and the costly consequences of failing to implement it.
The innovative video series WALKING THE LABOUR LAW TIGHTROPE assists employers to provide their managers with very inexpensive training that allows the managers to achieve crucial labour relations knowhow at times suitable to their very busy schedules. Its 48 chapters, averaging 10 minutes in length each, can easily be watched at junctures when the manager has time. This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through the use of a stimulating, animated case study that runs throughout the 48-chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.
A further advantage is that the manager can, for a full year, easily go back to any of the 48 videos for purposes of refresher training or in order to access information on how to deal with a current workplace issue. This solves the problem of managers forgetting what they have learned.
This video series helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss.
To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to www.labourlawvideos.co.za or contact Ivan on ivan@labourlawadvice.co.za
