The Importance of good faith consultation during section 189 process
In todays’ unfortunate economic climate, retrenchment of employees in the workplace is a daily occurrence. Even though the retrenchment of employees is a valid reason, in terms of the Labour Relations Act (No. 66 of 1995) (the LRA), to terminate employees’ services, the provisions in section 189 of the LRA still need to be adhered to.
The importance of a good faith consultation session is discussed in the caselaw below.
In NUMSA & Others v Dorbly Limited and Another (2004) SALC 47 the court held that good faith consultation is the core requirement of retrenchment procedures. The consultations held in that case were rendered meaningless as the employer had already made up his mind. The employer went into the consultations with a foregone decision and the dismissal was found to be procedurally unfair.
In Vermeulen v Investgold CC (2015) 4 BLLR 447 (LC) the court confirmed that the LRA requires an open and honest engagement, and the employer must consider the employee’s proposals. Management should have allowed a fuller exchange of views, if only to dispel Vermeulen’s belief she could have been accommodated elsewhere.