So let’s bring in the protagonists. Mike owns a large factory that makes furniture with over 1000 employees and George is one of the workers. The credit crunch hasn’t quite hit Mike’s business yet, but he does understand that he needs to tighten things up. Mike does his research and he finds that there is one employee who is really not pulling his weight, who is constantly late and who is just generally difficult to work with and that is George.
Mike decides to use the current economic situation to ‘retrench’ George for operational reasons. George is called in and Mike goes through the whole ‘retrenchment’ process and George is subsequently ‘retrenched’ for operational requirements..
Here’s the problem – if, as is the case here, there are many employees, then the retrenchment process should have been done with all of the staff or at the very least all of the staff in the same department. Although Mike followed the procedure, he only followed it for a single staff member instead of all of the staff.
In this particular instance – George decided that he would take Mike on as he decided that he thought that he had been ‘unfairly dismissed’. Section 191(12) of the Labour Relations Act offers ‘a single employee who was retrenched a choice to refer a dispute to the CCMA for arbitration or the Labour Court for adjudication.”
Labour court cases usually cost a huge amount of money and so the rationale behind this choice was to give those who could not afford to take their cases to Labour court a chance to be heard. It only accommodates however, instances where “i) a single employee was consulted and subsequently dismissed; ii) the dispute related to whether the dismissal was substantively fair.”
So George is able to take his case for arbitration since he was the only employee that was consulted and dismissed.
Be careful people, when it comes to retrenchment, it is better to consult to all and not to just single out one person. It could become a really costly affair.