The CCMA has received 190 large-scale retrenchment referrals since last month, and today the CCMA's Marius Kotze said that this was actually a quiet period and that they are expecting a surge in referrals starting from now.
It was wonderful to hear from Marius, because most of the time we have to listen to corporate lawyers explaining how 'unfortunately', without a ministerial exemption, severance pay must be paid. Unfortunately? Who are these people?
This is how we have come to understand large-scale retrenchments.
Point 1: Don't call it a retrenchment, there is a euphemism.
The law regulating retrenchments is the Labour Relations Act (LRA). It refers to a retrenchment as 'a dismissal for operational requirements'. Do not look for the word 'retrenchment' in the LRA - it is not there!
Point 2: What are operational requirements?
In its definitions section,* the LRA states that 'operational requirements' are dismissals based on 'the economical, technological, structural or similar needs of the employer.'
Point 3: We still have no idea what you mean by 'operational requirements'!
Given that the definition of a retrenchment is so broad, and includes economic needs, employers do not always retrench to save a business from going under, but for the economic need to 'remain competitive'. 'Remaining competitive' means increasing profits, which means cutting costs. It's a capitalist thing.
Point 4: What else are retrenchments good for?
Companies can also make use of retrenchments to address their greatest fear: A united and defiant workforce. Retrenchments pit workers against each other in a race to the bottom, and remind workers who really is the boss.
Point 5: So what is a retrenchment really?
A retrenchment is therefore a form of human sacrifice and which, if used cleverly, may help in legally increasing rates of worker exploitation.
Point 6: But what can workers do?
Section 189 of the LRA set out the rules for retrenching and workers' rights. If it is a large-scale retrenchment, section 189A of the LRA also applies.* We will not go into detail here, save to state that a detailed consultation with the workers or their representatives or the majority union is required. That is the main protection offered to workers facing retrenchments in these sections of the LRA.
Point 7:
There is nothing funny about retrenchments. They tear apart friends and comrades, and workers and their families. We remember the workers who suffered to the point of complete decline, and who died prematurely after the trauma and heartbreak of being retrenched. 'Unfortunately.'
*Some notes:
1. Cognitive psychologist George Miller advised not to go beyond seven information points, plus or minus two.
2. The LRA definitions section is not easy to find. Usually definitions are listed in 'section 1' of any law. The definitions in the LRA are in section 213.
3. When a section in a law has a capital letter at the end, it means that the law-makers in Parliament forgot about something the first time, and they've added it in. In this case, a special procedure for large-scale retrenchments was added to the LRA in 2002.
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