Do you have to be consulted before being retrenched?

This it would seem to be an obvious right however employees should be cautioned that this right may not necessarily mean that the employee needs to be personally consulted with before been retrenched.

AMCU launched an application for the reinstatement of some of its members who were retrenched following a retrenchment agreement that was concluded by Royal Bafokeng and two other unions at the mine, the National Union of Mines (NUM) and United Association of South Africa (UASA). The company had recognized NUM as the majority union within the organization and accordingly the subsequent retrenchment agreement was itself the result of a collective agreement entered into between NUM, UASA and Royal Bafokeng on 9 March 2015. The retrenchment agreement was extended to include the AMCU members in terms of section 23(1).

Whilst AMCU was recognized by the mine for bargaining purposes, UASA was not, it remained a minority union. AMCU argued in the Labour Court and Labour Appeal Court, that the “collective agreement was constitutionally objectionable, as it allowed for a majority union to conclude a collective agreement concerning a retrenchment process to the exclusion of minority unions in the workplace. It also argued that the extension of such an agreement, as was the case in this matter, was equally constitutionally objectionable”.

The Labour Appeal Court upheld the court a quo’s finding in concluding that the objectives of the legislative, which has equal application in section 189 and section 189A of the LRA, is to give effect to majoritarianism rather than create disruption as a consequence of a proliferation of consultations with minority unions. In other words upheld the principle

LAC went further and held that procedural fairness was not a requirement of a rational decision per se and that “there was no general duty on a decision-maker to consult interested parties in order for a decision to be rational under the rule of law”.

The matter was subsequently referred to the Constitutional Court where AMCU argued that the provisions of section 189 (1) read together with the provisions of section 23(1)(d) were unconstitutional and should be struck out. 

There was a split decision. Whilst the minority (4) upheld that there was no constitutional invalidity to the provisions of section 23(1) due to the unreasonable limitations imposed on the restricted reading of section 189(1), to such an extent the provisions were constitutionally invalid. 

The majority (5) upheld the argument in respect of section 23(1)(d) however rejected the argument that the provisions of section 189 (1) were constitutionally invalid. Majority went further and found that the provisions of section 189(1) did not limit the right to fair labour practices and that such rights do not guarantee an individual’s right to be consulted in retrenchment proceedings. They went further and found that even if the provisions do limit an individual’s right to fair labour practice, such limitations were justifiable. The majority concluded that the cascading hierarchy of consulting parties as provided for in section 189 duly expresses the Legislature’s policy choice in favour of majoritarianism.

The third judgment by Jafta J found that the principle of majoritarianism have no application in the provisions of section 189. Jafta J went further and held that the limitations read into the section were not justifiable.

A fourth judgment by Theron J, whilst agreeing with the majority reasoning, held that from a separation of powers perspective, it would be appropriate to test section 189(1) of the LRA against a standard of rationality rather than one of reasonableness, and emphasised the importance of the proper interpretation of the Bill of Rights in this regard. It concluded that, on a proper interpretation, section 23(1) does not include a right for an employee to be individually consulted in the context of a retrenchment dismissal.

For now be aware that if you are a member of a minority union but nonetheless form part of a ‘bargaining unit’ and there is a majority union in the workplace, you may find yourself bound by a collective agreement, in terms of which you are retrenched, concluded between the majority union and your employer, whether you and/or your union were consulted or not. In other words you may find yourself retrenched on terms and conditions that you have not negotiated or consulted on and with which you may not necessarily agree, but you will have no right of recourse if such collective agreement is concluded with the majority union and is in full and final settlement.

NB: Please note that this article is for informational purposes only and not for the purpose of providing legal advice. Should you require more information on this topic or any issue arising out of this please contact Allardyce & Partners on 011-234 2125 or

* Should you wish to read further the media summary and a copy of the entire is available on our website 

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