PSIber Group (Pty) Ltd

Warning!

The content of this page is currently under review by the KAP Group. Divisions are encouraged to start implementing the processes discussed on this page, as any adjustments requested by the Group should have a minor impact on the overall process.

This message will be removed once approval has been granted.

Blueprint Summary

Retrenchments can be categorized between Section 189 and Section 189A of the Labour Relations Act. Although the processes are very similar, this Blueprint will discuss the processes for Section 189A.

Introduction

The motivation for retrenchments can be classified into the following categories:

  • Restructuring
  • Financial
  • Technology

For a Section 189A Retrenchment to take place, both the following prerequisites need to be present:

  1. The employer must employ 50+ employees; and
  2. The employer intends to retrench according to the following thresholds:
  • 10 or more employees, if the employer employs 50 – 200 employees;
  • 20 or more employees, if the employer employs 201 – 200 employees;
  • 30 or more employees, if the employer employs 301 – 400 employees;
  • 40 or more employees, if the employer employs 401 – 500 employees;
  • 50 or more employees, if the employer employs 501 or more employees.

Or if the employer intends to dismiss the above number of employees either on one occasion or cumulatively over a 12-month period.

NB. Before any retrenchment proceedings may start, it is imperative that all of the requirements as stipulated in Section 189(3) are met and thoroughly discussed with all applicable parties. In addition to this, it is compulsory to obtain KAP approval (via the approval framework) for all Section 189A Retrenchments.

Procedures: Facilitation

One of the parties can request a facilitator from CCMA in writing by completing the LRA 7.20 form within fifteen (15) days. The CCMA then needs to inform the parties in writing within seven (7) days of receiving the form of the following:

  • The name of the facilitator; and
  • The date of the first facilitation meeting.

Please note that it is not compulsory to appoint a facilitator. Facilitators may also be appointed internally and not necessarily the CCMA.

Conduct of the first facilitation meeting

The facilitator must, at the first meeting seek to facilitate an agreement between the parties on the following:

  • The procedure to be followed during the facilitation;
  • The date and time of additional facilitation meetings; and
  • The information the employer is required to disclose.

Powers and duties of the facilitator

  • To chair the meeting between the parties; and
  •  To decide on any issue of procedure that arises in the course of meetings between the parties

It the facilitator is appointed from the CCMA, the facilitator’s decisions regarding the procedure for conducting facilitation, including the date and time, is binding on the parties.

 

Status of the facilitator

Facilitation is done on a with prejudice basis, but parties can agree in writing that parts be done on a without prejudice basis. The latter cannot be disclosed in any court proceedings, nor can the facilitator be called to give evidence of the facilitation proceeding.

Note: For any 189A, the employer is not allowed to retrench for a period of sixty (60) days. After the 60 days has lapsed, the employer may give notice of retrenchment to employees affected or the union can give notice to strike or the union may decide to refer a dispute concerning the substantive fairness of the retrenchment to the Labour Court.

If both parties agree, or if one party can prove that all the requirements as set out in 189(3) has been consulted on properly, dismissal notices may be issued.

 

General Points

  • The parties can agree on different time periods for consultation/facilitation;
  • The parties can agree to appoint a facilitator at any time, despite the procedure set out above (facilitation); and
  • At any stage, a consulting party can apply to the Labour Court to:
  1. Interdict the employer from dismissing employees prior to complying with a fair procedure;
  2. Direct the employer to reinstate the employee/s until there is compliance with a fair procedure; and
  3. Make an award of compensation.

Process flow

Process Specification

Process Owner

Stakeholder(s)

Recording Requirements

Reporting Requirements

The person that is accountable for this specific process.

  • HR Department

All parties that have a vested interest in this process.

  • Employee
  • Union
  • Payroll Department
  • HR/ IR Department

Requirements that need to be recorded during this process. What, How, Where.

  • Requirements as per Section 189(3)

Requirements that need to be stored during this process. What, How, When, Where.

  • Requirements as per Section 189(3)

Storage Requirements

Audit Requirements

Notifications

Reminders

Requirements that need to be reported on during this process. What, How, When, Where.

  • Requirements as per Section 189(3) – Store Indefinitely

Requirements that need to be met in to comply with Auditing Regulations.  What, How, When, Where & Type of Audit Requirement.

  • Not Applicable

Any Notifications that need to be Generated and/ or Actioned During this Process.

  • Notice of Intention to Retrench

Any Reminders that need to be Generated and/ or Actioned During this Process.

  • Not Applicable

Transparency & Communication

Knowledge & Skills

System

Workflows

 Any Transparency, Communication & Distribution Requirements needed for this Process.

  • Not Applicable

 Any Knowledge & Skills required to successfully complete this process.

  • Not Applicable

Links and Process within a system that directly relates to this Process.

  • Not Applicable

Are there any Workflows that drive this Process? This can be Manual or NFE Workflows.

  • Not Applicable

TEMPLATES, FORMS, GUIDES AND WORK INSTRUCTIONS

Legislation & Governance

S.A. Board for People Practices

Links to Templates, Guides and work Instructions that are either to be used for application or as Guidelines to meet minimum requirements for this Process

  • Not Applicable

Any Legislation, Bodies, Processes, Policies that Govern this Process.

  • KAP Group Retrenchment Policy
  • Labour Relations Act Section 189, 189A & 189(3)
  • Disciplinary Code

Does this Process Align with SABPP. This can either be Fully, Partially or Not at All.

The Process

Inputs are all of the Elements deemed necessary to complete the process successfully.

  • Section 189(A) of the Labour Relations Act
  • Section 189(3) of the Labour Relations Act
  • KAP Group Retrenchments Policy

Tasks are the Step-by-Step Actions to be taken to complete the Process.

  • Notification of Intention to Retrench
  • Notification of Termination

Tasks are the Step-by-Step Actions to be taken to complete the Process.

Introduction

The motivation for retrenchments can be classified into the following categories:

  • Restructuring
  • Financial
  • Technology

For a Section 189A Retrenchment to take place, both the following prerequisites need to be present:

  1. The employer must employ 50+ employees
  2. The employer intends to retrench according to the following thresholds:
  • 10 or more employees, if the employer employs 50 – 200 employees;
  • 20 or more employees, if the employer employs 201 – 200 employees;
  • 30 or more employees, if the employer employs 301 – 400 employees;
  • 40 or more employees, if the employer employs 401 – 500 employees;
  • 50 or more employees, if the employer employs 501 or more employees.

Or if the employer intends to dismiss the above number of employees either on one occasion or cumulatively over a 12-month period.

 

  1. Before any retrenchment proceedings my start, it is imperative that all of the requirements as stipulated in Section 189(3) are met and thoroughly discussed with all applicable parties. In addition to this, it is compulsory to obtain KAP approval (via the approval framework) for all Section 189A Retrenchments.

Procedures: Facilitation

One of the parties can request a facilitator from CCMA in writing by completing the LRA 7.20 form within fifteen (15) days. The CCMA then needs to inform the parties in writing within seven (7) days of receiving the form of the following:

 

  • The name of the facilitator; and
  • The date of the first facilitation meeting.

Please note that it is not compulsory to appoint a facilitator. Facilitators may also be appointed internally and not necessarily the CCMA.

 

  • Revision Number 01
  • Revised by: maartin vd Schyff
  • Approved by: Zene Olivier
  • Date: 01/03/2018