Prior to 2002, any dispute arising from an employee’s retrenchment from work, had to go to the CCMA for conciliation (a sort of mediation) and thereafter, if not resolved, to the Labour Court for adjudication after a full trial. This was of course costly, time-consuming and complex, and deprived a great many employees from access to justice. Those who did not have personal wealth or the support of a well-resourced and capable trade union, could often not afford legal representation to pursue their dispute, and lacked the skills to pursue the dispute as an unrepresented layperson.
In 2002, the legislature amended the Labour Relations Act to state that an employee who was dismissed following a retrenchment process that applied to her only, had an election to approach either the Labour Court for adjudication of the dispute, or the CCMA for arbitration.
This proved to be insufficient, however, as it did not assist other employees in a similarly isolated and vulnerable position in the retrenchment context.
This year, the legislature again amended the Act, now to extend the election between approaching the Court or the CCMA also to:
- single employees retrenched, even where the preceding processes involved a larger pool of employees; and
- employees retrenched by smaller employers (with ten of fewer employees) no matter how many employees were retrenched.
Whilst this is a move in the right direction, the different treatment of dismissals for conduct or capacity (which go to the CCMA for arbitration) and dismissals due to retrenchments (which usually go to the Labour Court for adjudication) is still open to criticism. The apparent rationale that retrenchment disputes are more complex may not be valid, and a more sweeping amendment allowing all employees in retrenchment disputes to elect to approach the CCMA instead of the Labour Court, would arguably be more appropriate.