In essence I think the case National Union of Metal Workers of South Africa and Others vs Aveng Trident Steel and Another, CCT 178/19 is a most appropriate case. This judgement was handed down in the Constitutional Court on the 27th October 2020.
In essence Aveng had advised some of their staff members that they wished to facilitate alternatives to retrenchment before embarking on an actual retrenchment. The Union said that the alternative offer which was less than the current terms and conditions of employment was unfair and was the true reason for the actual retrenchment. The Company could show that there was actual operational reasons to make the lesser proposals. If the staff and the Union did not accept the lesser proposals they were going to continue with the retrenchment process. Previously this had been illegal but this constitutional case now sets the law very clearly. That is, the reduction of pay refusal can lead to a retrenchment. However, in order to win, the employer has to prove that the pay reduction as being essential in view of operational requirements.
MICHAEL BAGRAIM
