For employees and unions, 1995 to 2002 have been lean in respect of retrenchment and its consequences, while employers have been insulated by procedures prescribed in the Labour Relations Act.
Once a company invokes its right to retrench, employees were able to take little industrial action. Instead they were compelled to participate in the statutory consultation process and only then could they approach the labour court if they were dissatisfied with the manner in which the employer had acted or if they were dissatisfied with the rationale or the substance of the retrenchment.
This would usually take a long time so it was unlikely that employees would get their jobs back.
All this changed on August 1 with the introduction of a right to strike in the context of a retrenchment exercise. This right is not absolute and does not mean that employees can strike willy-nilly. It is necessary that certain requiremnts be fulfilled before striking.
No strike is possible in respect of procedural aspects of the dismissal. If a union and employee are unhappy about the process the employer has followed. they must approach the labour court to urgently compel the employer to comply with a fair procedure. Or, if the employee has already been dismissed, they must ask the court to compel the employer to reinstate him, pending a proper compliance with fair consultation.
It is debatable whether employees would be as willing to strike in support of colleagues who are being retrenched as they would for those who are striking for higher wages. It is also debatable whether employees would be as willing to strike in circumstances where the employer is probably suffering economic woes, and where a strike would compound those difficulties and could lead to additional retrenchments.
The bottom line is that the strike threat is not as significant as it has been portrayed.
Notwithstanding this, there are additional procedural obligations for employers who are restructuring and who are planning on retrenching. These include an obligation to disclose information and to justify the refusal to disclose this where the employer claims the information is not relevant or is confidential.
In addition, there is an obligation for employers to consult in a meaningful fashion in order to arrive at concensus on the need to retrench. They must also consult on selection criteria and severance pay and other consderations that are part of a retrenchment exercise. These include assisting employees after their retrenchment.