Retrenching Anti-vaxers is Risky
BY lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 0828522973 or on e-mail address: firstname.lastname@example.org.
Employers are, in certain cases, allowed by law to use Retention of Necessary Skills as a criterion instead of Last-In-First-Out. However, proving that the application of this criterion was fair is very complex. This has caused many an employer to lose in court.
For example, in the case of FAWU vs SA Breweries Ltd (Contemporary Labour Law Vol 14 No. 2 September 2004) the employer retrenched employees after a reorganisation in the way that work was done. This required that employees would need to be able to perform a much wider variety of work than previously. In order to establish whether these employees had the ability to do this the employer applied, amongst others, the Adult Basic Education and Training (ABET) test. Employees who failed these tests were selected for retrenchment.
The Labour Court found that:
Retrenchment has a “.. deleterious impact on the life of workers and their families …” and can be seen as a “death penalty”
Therefore an employer contemplating retrenchments must be able to prove that such dismissals were implemented as “a last resort”
And if there was a viable alternative to retrenchments the employer is obliged to implement it
SAB acted unilaterally in applying the ABET levels
These ABET levels were not a valid test of the retrenchees’ ability to work in the newly created jobs. This is because ABET measures more general abilities rather than the specific skills required for the specific jobs in question. The employees’ experience should also be taken into account in assessing their suitability for the jobs.
SAB did not argue that it did not have the funds to devise a valid and appropriate test to assess the suitability of the employees for the newly created positions. The employer therefore could have and should have had such appropriate tests designed.
The retrenchees had long service
Due to apartheid the employees’ only schooling option had been “Bantu education”
SAB had not taken adequate steps to assist the employees to obtain the desired ABET skills levels
SAB had been inflexible as regards the consultation process.
The retrenchments of these employees was unfair both procedurally and substantively (i.e. was for unfair reasons).
In the case of CWIU and Others vs Latex Surgical Products (Pty) Ltd (2006, 2 BLLR 142) the employer gave notice to the trade union that it proposed the possible retrenchment of 33 employees. After consultation the employer implemented retrenchments for reason of its financial circumstances. In deciding on which employees were to be retrenched the employer rated all the employees on six criteria and chose those whose ratings were the lowest. The employees who were retrenched lodged a dispute with the Labour Court which found that the retrenchments were fair. The union went to the Labour Appeal Court which found that:
After the retrenchments the employer had hired a large number of casual workers. This persuaded the Court that there had not been a good reason to retrench the employees as there was clearly work for them to do.
The employer had neither shown how it had applied the criteria for choosing who to retrench nor that it had applied these criteria objectively.
The retrenchments were therefore declared to be unfair and those employees who had not found other jobs were reinstated with 12 months back pay.
Covid has added a new challenge for employers desperately needing to keep their workplaces free of the disease so that the business’s work can be completed and in order to comply with the stringent legal requirement to keep their workplaces safe in a context where many employee are refusing to be vaccinated.
This challenge has motivated more and more employers to implement mandatory Covid vaccination policies. However, employers are warned that constitutional rights of employees such as the right to control over their own bodies will constitute strong legal factors in Labour Court cases of mandatory vaccination dismissals.
The danger is that the Constitutional Court has not yet ruled on this issue, which means that employers need to tread extremely carefully. Those employers that take the policy decision not to heed this warning and who have decided, regardless of the danger, to implement the LRA’s section 189 process should still do so with great care. This is because, even if the court decides that it might be substantively fair to retrench anti-vaxers in certain situations, the stringent requirements of section 189 must be fully adhered to.
This means that the employer has to identify and explore every single possible alternative to retrenchment with the employee and implement those that are viable. As this process is extremely intricate and has several legal pitfalls employers should not consider implementing it without sound legal advice.
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The opinions expressed in this article are the author’s own and do not necessarily reflect the view of Lexinfo CC.
Date posted: 18 December 2021