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When an employer contemplates retrenching employees it is required by the Labour Relations Act (LRA) to first consult about this prospect before making any decision to retrench. Where the relevant employees belong to a trade union the employer is required to consult with that union on a number of issues, the most important of which is any means of avoiding job losses.
Should the employer choose not to engage in proper pre-retrenchment consultations and the employees are forcibly retrenched this will normally result in an unfair dismissal finding against the employer. However, where the employer has, in vain, made every effort to consult it may possibly not be blamed for any failure to consult.
Ivan Israelstam is the CEO of Labour Law Management Consulting offers expert labor relations advice to organizations and individuals in the private and public sectors. Ivan Israelstam has over 30 years of experience, been CCMA Commissioner and is Chairperson of the South African Chamber of Commerce and Industry’s Labour Affairs.