By Aimee Nel
The Oyster Box Hotel decided to close for a period of two years for refurbishment. Sixty employees were retrenched. When the hotel reopened only one employee was re-employed. Fifteen of the employees argued that their retrenchment was unfair because the employer did not consider reasonable alternatives to retrenchment.
In SACCAWU obo Mvuyana v Oster Box Hotel (2018) 39 ILJ 2337 (LC) the trade union contended that the employees could have been laid off and could have been re-employed upon the reopening of the hotel.
The court found that the hotel should have implemented temporary layoffs as an alternative to the dismissal of the employees. This made the retrenchments substantively unfair, and compensation was awarded to the employees.
From this it is very clear that employers will not be allowed to follow a “tick box” approach when it comes to a retrenchment process. When employees suggest reasonable alternatives to retrenchment, and the employers do not really consider those, there may be possible grounds for a case of unfair dismissal.
On the other hand, employees should bear in mind that if the employer offers them a fair alternative and it is rejected, they run the risk of forfeiting their severance package.
It is therefore most important that sufficient time and attention go into considering alternatives to retrenchment. Retrenchment should in all circumstances be the last resort and should not be used as an easy way out.