189. Dismissals based on operational requirements
(1) When an employer contemplates dismissing one or more employees for reasons based on the employer's operational requirements, the employer must consult-
(a) any person whom the employer is required to consult in terms of a collective agreement;
(b) if there is no collective agreement that requires consultation, a workplace forum, if the employees likely to be affected by the proposed dismissals are employed in a workplace in respect of which there is a workplace forum;
(c) if there is no workplace forum in the workplace in which the employees likely to be affected by the proposed dismissals are employed, any registered trade union whose members are likely to be affected by the proposed dismissals;
(d) if there is no such trade union, the employees likely to be affected by the proposed dismissals or their representatives nominated for that purpose.
(2) The consulting parties must attempt to reach consensus on-
(a) appropriate measures-
(i) to avoid the dismissals;
(ii) to minimise the number of dismissals;
(iii) to change the timing of the dismissals; and
(iv) to mitigate the adverse effects of the dismissals;
(b) the method for selecting the employees to be dismissed; and
(c) the severance pay for dismissed employees.
(3) The employer must disclose in writing to the other consulting party all relevant information, including, but not limited to-
(a) the reasons for the proposed dismissals;
(b) the alternatives that the employer considered before proposing the dismissals, and the reasons for rejecting each of those alternatives;
(c) the number of employees likely to be affected and the job categories in which they are employed;
(d) the proposed method for selecting which employees to dismiss;
(e) the time when, or the period during which, the dismissals are likely to take effect;
(f) the severance pay proposed;
(g) any assistance that the employer proposes to offer to the employees likely to be dismissed; and
(h) the possibility of the future re-employment of the employees who are dismissed.
(4) The provisions of section 16 apply, read with the changes required by the context, to the disclosure of information in terms of subsection (3).
(5) The employer must allow the other consulting party an opportunity during consultation to make representations about any matter on which they are consulting.
(6) The employer must consider and respond to the representations made by the other consulting party and, if the employer does not agree with them, the employer must state the reasons for disagreeing.
(7) The employer must select the employees to be dismissed according to selection criteria-
(a) that have been agreed to by the consulting parties; or
(b) if no criteria have been agreed, criteria that are fair and objective.
Severance Pay [Section 41 of the Basic Conditions Of Employment Act]
41.(1) For the purposes of this section, "operational requirements" means requirements based on the economic, technological, structural or similar needs of an employer.
(2) An employer must pay an employee who is dismissed for reasons based on the employer's operational requirements severance pay equal to at least one week's remuneration for each completed year of continuous service with that employer, calculated in accordance with section 35.
(3) The Minister may vary the amount of severance pay in terms of subsection (2) by notice in the Gazette. This variation may only be done after consulting NEDLAC and the Public Service Co-ordinating Bargaining Council established under Schedule 1 of the labour relations act, 1995.
(4) An employee who unreasonably refuses to accept the employer's offer of alternative employment with that employer or any other employer, is not entitled to severance pay in terms of subsection (2).
(5) The payment of severance pay in compliance with this section does not affect an employee's right to any other amount payable according to law.
(6) If there is a dispute only about the entitlement to severance pay in terms of this section, the employee may refer the dispute in writing to-
(a) a council, if the parties to the dispute fall within the registered scope of that council; or
(b) the CCMA, if no council has jurisdiction.
(7) The employee who refers the dispute to the council or the CCMA must satisfy it that a copy of the referral has been served on all the other parties to the dispute.
(8) The council or the CCMA must attempt to resolve the dispute through conciliation.
(9) If the dispute remains unresolved, the employee may refer it to arbitration.
(10) If the Labour Court is adjudicating a dispute about a dismissal based on the employer's operational requirements, the Court may inquire into and determine the amount of any severance pay to which the dismissed employee may be entitled and the Court may make an order directing the employer to pay that amount.