First, the LRA does not mention representation in disciplinary or disability investigations in the body of the law – except for the need to notify a union if one of its stewards is under investigation. The LRA Code of Conduct: Dismissal (Appendix 8) fills this gap by stipulating that an employee “. has the right to the assistance of a trade union representative or colleague` (Article 4(1)). The creation of this limited right of representation and its specific limitation to a union representative or colleague means that it necessarily excludes someone, such as an outside lawyer who is not a union representative or colleague. (d) If a written statement is made, the employer must respond in writing. As an employer, you need to businesstech.co.za/news/business/397423/new-retrenchment-data-shows-the-start-of-south-africas-jobs-bloodbath/ an increasing number of small businesses, such as sole proprietors, have begun to explore cost-saving measures, including possible reductions. The question is whether Article 189 is applicable; the short and immediate answer would be YES. At the time of the consultation, the following question arises, which is: Who can/should represent the employee? Large organizations usually don`t have too many problems, as there are structures such as trade unions, workplace forums, and collective agreements. An individual contractor/SMME may have the request of an external representative to be present at these consultations. The AMCU, which represented 11% of workers at the affected mine, said it was not consulted during the compression process. The employer had consulted only the majority union, the National Union of Mineworkers (NUM), and another minority union, the United Association of South Africa Union (UASA), which resulted in a reduction agreement of general application.
Subsection 189(1) of the Labour Relations Act (LRA) gives potential cuts the right to be represented in these consultations. Indeed, lay employees are often overwhelmed when it comes to understanding the right to terminate, understanding their rights, employers` sneaky tactics, and effective consultation and negotiation skills. The timetable for the process must also be agreed. Employers often fall into the trap of prescribing deadlines for the consultation process. This is a deception and a fait accompli. Employers are being asked to protect themselves from a costly process they have not followed. Article 189(3) prescribes the consultation procedure. Part of the consultation process is to ask for as much information from the company as you can determine if the justification is fair and if there are alternatives to your discount. Consultations with a representative take place. The employer must be present.
The meeting should be meticulously recorded and the minutes approved. This helps workers have the opportunity to bring petitions under subsection 189(5) of the LRA. These are alternatives to which the employer must respond in writing. Throughout the consultation process, the employer must be open to suggestions and alternatives that avoid, minimize and/or mitigate layoffs from operational requirements. Whatever the employer`s motive for trying to prevent employee representation, this tactic risks throwing the employer into hot water. Because if the employer violates the provisions of the LRA that allow for such representation, the courts or the CCMA will punish the employer. Article 189 § 1 provides that prospective workers have the right to be represented by their company forum or trade union. If the workers concerned are not members of these organisations, they shall have the right to be represented by representatives appointed by the workers for the purpose of consultations on removal from the register. Many employers allow union representation in austerity consultations, but few allow non-unionized workers, lawyers, consultants or other external representatives. The most common reason is that this is an internal and private matter and therefore only internal representatives should be admitted. However, Article 189(1) of the LRA does not limit that representation to internal parties.
On the contrary, the article allows external representation in the form of union officials. So why should unionized workers not be prohibited from bringing in outside representatives? This issue is controversial because many employers still intend to prohibit external representation. In this context, it is a risky approach. In Workers Labour Consultants obo Petros Khoza and Others v. Zero Appliances cc (1999, 11 BLLR 1225), the dismissed workers brought an action against the employer in the Labour Court on several grounds. One of the reasons given was the employer`s refusal to allow its external employment counsellor to represent it in strike consultations. The court found this unfair and ordered the employer to pay each employee the equivalent of 12 months` salary. Since the law seems clear in allowing employees to represent them externally, employers should comply with the law. They should then address their concerns about being overtaken by these workers` representatives by hiring their own labour law expert to represent the employer. Despite the fact that the law entitles potential cuts to such representation, employers often refuse to allow workers to bring outside representatives to consultation sessions. This can be done for a variety of reasons, including: Section 189 provides details on the duty to consult.
Specifically, it specifies when consultation must begin, with whom the employer must consult and what issues must be discussed. As a result, there is no change in how employers are required to consult with each other when planning reductions. “However, situations where uninformed and unconsulted employees suddenly learn that they have been laid off are not ideal, and responsible employers would likely want to consider more appropriate ways to communicate the news of possible cuts to employees. » QUESTION – RIGHT OF NON-UNIONISED WORKERS TO EXTERNAL REPRESENTATION IN DISMANTLING CONSULTATIONS Article 189(1)(d) of the Industrial Relations Act provides that, when an employer intends to dismiss workers for operational reasons, it must consult the workers concerned or their representatives appointed for that purpose if there is no works forum or registered trade union.