Labour Law

Retrenchment: Your Legal Options as an Employee

South Africa’s Labour and Employment Laws are considered to be some of the most liberal and progressive in the world, making them difficult to adhere to. Therefore, when faced with a legal dispute, you need an expert in your corner – someone who understands how this ever evolving legal system and legislation functions, who can guide you regarding legal options, and who can represent you on a legal front. Allardyce & Partners Attorneys offers experts in this domain, ensuring that you can make informed decisions when pursuing legal action as a result of a dismissal/retrenchment.

What Happens When I Seek Legal Action When I Get Retrenched?

Normally, the first step would be that as soon as you are issued with the section 189(3) notice get in contact with your legal representative and let them advise you on how you can proceed. If a legal dispute is on the cards you need to have all your ducks in a row given the provisions relating particularly to mass retrenchments. This brings us to the COVID-19 issue regarding multiple retrenchments.

COVID-19 directly impacted the work environment by raising dramatic concerns regarding occupational health and safety for on-site employees, to such an extent that in some cases it led to immediate retrenchments/dismissals for employees who knowingly came to work after being tested positive for COVID-19. A similar case went to court, where the court ruled in favour of the employer’s choice to immediately dismiss the employee, as they posed an imminent threat to their colleagues life and health in the workplace.

When Can an Employee Elect to Go to Arbitration or Labour Court in Circumstances Where More Than 1 Employee Has Been Dismissed?

As an individual if you were the only employee who was consulted with and subsequently retrenched due to the operational requirements of your employer or if the employer employs less than 10 employees, irrespective the number of employees who are dismissed due to its operational requirements, then you have an election to refer the dispute either to arbitration or to the Labour Court in the event that the dispute cannot be resolved through means of conciliation.

Where however these criteria do not apply and or it is a mass retrenchment as contemplated in Section189A there is no such election, and less parties involved all agree to arbitration, and these disputes must be referred to the Labour Court.

As everyone knows legal costs more often than not can prohibit individuals from pursuing their legal rights before the Labour Court it is always best to try to avoid litigation if at all possible. These circumstances it is better to obtain legal advice from the get go rather than bundling through the process and due to the aforementioned requirements not been in a financial position to pursue your rights in the Labour Court.

Allardyce & Partners Attorneys is your answer to professional Labour and Employment Law specialists and legal services in Gauteng. Please contact us on 011 234 2125 or email us at for details.

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