Of the two, the bestknown route is to propose terminating the employment contract for operational reasons, using the procedure in section 189 of the labour relations act. Identifying consulting parties in terms of section 189 1 of the lra. Operational requirements are defined under the labour relations act lra as. Section 189 of the lra10 codifies retrenchment and is read in conjunction with the. Editors pick section 188 of the labour relations act, no 66 of 1995 permits an employer to dismiss an employee for reasons related to the employees misconduct. Section 189 retrenchment process and the employees. When does s189a of the lra apply to a retrenchment process. Along with numerous changes brought about by the amendment act it also introduced stricter provisions in relation to fixed term employment contracts these amendments can be seen in section 198b 198d. Throughout this specific section, the act obliges the employer to consult both the affected employees andor union on the. The esa is the basic legislation providing minimum terms and conditions of employment for all employees in ontario, except those employed in federal works or undertakings these. Section 189a1 applies to employers that employ 50 or more employees and intend to retrench. Employment retrenchment guideline cliffe dekker hofmeyr.
Overall, 2018 was characterised by amicable, but tough negotiations and relatively good relationships with organised labour across the geographies see key material issues labour relations, for details on our engagement with trade unions in 2018. The unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee. Business to include the whole or part of any business, trade, undertaking or service. These are defined as requirements based on economic, technological, structural or similar needs of the employer. Section 198 introduces important new rights for labour broker, contract and parttime workers. Labour relations act, no 66 of 1995 lra, an employer must consult with.
However, this does not mean that the employee has been retrenched in terms of section 189 of the labour relations act lra. However, the lras provisions make the implementation of retrenchment, especially largescale retrenchments, extremely difficult. Section 189 of the labour relations act lra permits employers to dismiss employees for operational requirements. Summary and explanation of the labour law amendments. Ivan israelstam the labour relations act lra allows employers to dismiss employees for reasons of operational requirements retrenchment. Depending on various factors, the consultation process could last several months and as a result, identifying the correct party. Section 189a facilitation facilitator regulations 19 large scale retrenchments without facilitator 21. Section 189 1 of the lra provides that, before retrenching, employers must consult any person whom the employer is required to consult in terms of the collective agreement.
Retrenchment consultation and the labour relations act 66. Substantive fairness is proved if the reasons for retrenchment are based on financial, technological or structural needs of the employer and are. This section applies to every company including banking and insurance company. Summary of the labour relations amendment act 6 of 2014 elrc. The impacts of these two amendments will be discussed in detail when dealing with the labour relations amendment act. Changes that have been made appear in the content and are referenced with annotations. Section 189 of the labour relations act hereinafter called the act relates to the dismissal of employees based on operational reasons and prescribes a very clear procedure to be followed in the event of such retrenchments. This morning, it was reported in the media that productivitysa has called for section 189 of the labour relations act lra to be amended. Maintaining sound labour relations 2018 sappi group. Can the new owner of a business dismiss existing employees.
Temporary employment whats changed for employers and. Acts online provides legislation, including amendments and regulations, in an intuitive, online format. Employers are often uncertain as to who they should consult with when embarking on a restructuring exercise in terms of section 189 of the labour relations act 66 of 1995, as amended the lra. Application of section 189 and section 189a of the labour relations act 66 of 1995 as amended by mawethu siyabulela rune submitted in partial fulfilment of the requirements for the degree of magister legum in the faculty of law at the nelson mandela metropolitan university supervisor. Labour relations code chapter l1 table of contents 1 definitions 2 delegation of ministers and directors responsibilities 3 witnesses 4 application of act part 1 communication and education 5 powers of the minister and dissemination of information 5. Section 1862 of the labour relations act 66 of 1995 lra, defines an unfair labour practice as any unfair act or omission that arises between an employer and an employee. The labour relations act requires that consultation must take place when the employer contemplates retrenchment. Section 189 2 requires an employer and the other consulting parties to engage in a meaningful. Retrenchment in terms of section 189a labour guide. With acts you are guaranteed the latest and most up to date resource for your legislative needs.
This booklet is a summary of the new section 198 of the labour relations act lra of 2014. Section 189 of the labourrelations act lra governs retrenchments. Dismissal based on operational requirements, s189 lra. The purpose of s189 of the labour relations act is to investigate through the. The case concerned the interpretation of section 198a3b of the labour relations act 66 of 1995 lra and whether this deeming provision resulted in a sole employment relationship between a placed worker and a client or a dual employment relationship between a temporary employment service tes, a placed worker and a client.
There are changes that may be brought into force at a future date. By 15 august 2010, the respondent must issue a notice in terms of section 189 3 of labour relations act 66 of 1995 the lra and the applicant and the respondent must engage in consultations in terms of section 189 2 of the lra, to commence no. Section 1893 and 189 a of the lra labour relations act4, guides an employer in relation to the procedural requirement when embarking on a retrenchment process. Everyone knows about or has heard about the principle last in first out lifo principle in the context of a dismissal in terms of section 189 of the labour relations act no. A take over of an enterprise as a going concern essentially means that the new employer is carrying on. Productivity sas ceo, mothunye mothiba, has called for the lra to be amended to insert a. Time off for members of workplace forum section 821p. Section 189a 1 applies to employers that employ 50 or more employees and intend to retrench the following number of employees. The act in section 197 thereof deals with the transfer of a contract of employment and defines.
People who must be consulted with in terms of a collective agreement. The summary is a popular version of the new rights and is aimed at everyone involved. As section 1862b refers to suspension together with any other unfair disciplinary action short of dismissal, it clearly includes both categories. Once the company contemplates retrenchments it must prior to making a decision advise and consult with the employees or their designates and follow the provisions contained in section 189 of the labour relations act, which provides that the employer must. Extracts from the labour relations act unfair dismissals. Trade union and labour relations consolidation act 1992, section 189 is up to date with all changes known to be in force on or before. This section which sets out the guidelines for retrenchment procedures currently limits the parties who must be consulted to. Section 189 of the labour relations act requires all consulting parties to reach. Welcome, thank you for the opportunity to address your question. There is a misconception in the workplace, among unions and commissioners of the commission for conciliation, mediation and arbitration ccma that the lifo. With the advent of welcoming in 2015 so too did we welcome in the arrival of the new labour relations amendment act of 2014 the amendment act which became effective on 1 january 2015. Essential services provided for in the labour relations act. Trade union and labour relations consolidation act 1992.
Bumping by now most employers are aware of the requirements of section 189 of the labour relations act, when implementing retrenchments, the pitfalls and problems associated with retrenchments. An award of compensation made to an employee in terms of subsection 14 must comply with section 194. The introduction of subclause p will allow the minister to also. Section 189 dismissals for operational requirements of the labour relations act introduction to dismissals for operational requirements dismissals for operational requirements have been categorised as no fault. Employees belonging to collective bargaining units by region. Section 189 of the labour relations act 14 section 189a of the labour relations act 16 chapter 3. Labour relations amendment act 42 of 1996 basic conditions of employment act 75 of 1997 employment equity act 55 of 1998 labour relations amendment act 127 of 1998. We are the leading resource for freely available legislation in south africa and are used daily by thousands of professionals and industry leaders. Example of a section 189 letter together with a checklist. In terms of section 197 of the labour relations act the lra, the sale of a business as a going concern takes place subject to the provisions of the lra. Trade union and labour relations consolidation act 1992, section 189 is up to date with all changes known to be in force on or before 17 april 2020.
Trade union and labour relations consolidation act 1992, section 189 is up to date with all changes known to be in force on or before 19 april 2020. Section 189 what is section 189 of the labour relations. To change the law governing labour relations and, for that purpose to give effect to section 27 of the constitution. Section 197 of the labour relations act lra requires the new employer, in a takeover as a going concern, to take over all the employees of the old employer. Like all dismissals retrenchments must be both procedurally and substantively fair. Your guide to labour law in south africa labour guide. The date on which the amendments will come into operation is still to be determined but it. In terms of that section, if the employer has operational requirements that might necessitate terminations, the employer is required to consult with the employees who may be affected or with their representatives.
In order to ensure fairness towards both employer and employee, it is necessary to better understand section 189 of the labour relations act. That is, section 188 of the lra states that a dismissal is unfair if the employer fails. Dismissal based on an employers operational requirements as per. Employment law update an exemployee refers an unfair. On 3 march 2015, the labour appeal court lac ruled that the courts prior interpretation of the validity of termination notices that are issued in violation of s189a8 of the labour relations act, no 66 of 1995 lra was incorrect. Fixed term employees the new labour relations amendment. Section 189 what is section 189 of the labour relations act. It is hereby notified that the president has assented to the following act which is hereby published for general information. Section 189 3 5 sets out very specific points which must be consulted on when embarking on such process. Determine which employees will be affected by the proposed termination. The labour court may not make an order in respect of any matter concerning the disclosure of information in terms of section 189 4 that has been the subject of an arbitration award in terms of section. Labour court held that s1891 has always been interpreted. Labour relations act 66 of 1995 english text signed by the president.1287 678 541 243 1015 909 1106 550 732 1127 382 352 1160 533 1065 154 767 297 1507 663 14 1496 17 1049 510 1352 752 1329 1070 632 1450 230 1350 1069