Who would have thought that when you locked your drawers at our workstations, or closed the door of your office on 26 March 2020 for a three-week National Lockdown that you might have to face possible dismissal through no fault of our own!
MISA is currently busy with almost 170 retrenchment processes throughout the retail motor industry, with over 4 700 positions that are affected. Some of these processes involves only one Dealership or Establishment and others involve 87 plus Dealerships nationally.
Knowledge is power! It is paramount that you must empower yourself with knowledge and not merely accept that you are now in the unfavourable position of being retrenched.
Not the End of the Road
Receiving a letter stating that your position within the company is affected by restructuring is not, and should not be, the end of the road. MISA had to adjust our way of operating and thinking, specifically around the challenges surrounding the COVID 19 pandemic and lockdown.
Be assured that even when we cannot sit in the same room, we will incorporate alternatives to consult with you. Yes, the ideal is not to have a cold call or even a virtual consultation, but a face-to-face, especially when you are faced with these challenges, but it does not change our commitment to you our member.
The Labour Relations Act 66 of 1995 (LRA) provides in section 189(7) that the employer cannot just decide who they want to select for dismissal based on operational requirements. There must be a criteria, agreed upon during consultation and if there is no agreed criteria, the selection must be “fair and objective”!
The default thinking through the years is that LIFO (last in first out) must be the ideal and fair criteria. The Labour Court did however confirm in National Union of Metalworkers of South Africa and others v Columbus Stainless (Pty) Ltd, that LIFO was never endorsed as the only fair selection criteria. Fairness and objectivity, the foundation of selection when you as employee did nothing wrong, should in any event be the point of departure when parties consult on a selection criterion.
Fair and Objective
The criteria that MISA is comfortable with in negotiating when we consult, includes, but are not limited to, LIFO, Years of Experience, Qualifications and skills. Bear in mind that the criteria must be underpinned by fairness and objectiveness.
The latest addition to the consultations is Employment Equity and BBBEE scoring. In this instance, just to give you peace of mind, the Labour Court held in Robinson and Others v PWC (Robinson matter) that “affirmative action is not, and never has been, a legitimate ground for retrenchment.” It was further confirmed that the Employment Equity Act 55 of 1998 (EEA), does not bring about an individual right to affirmative action. A principle confirmed in Thekiso v IBM South Africa (Pty) Ltd by the Labour Court when they had to consider whether a black female employee could depend on the provision of the EEA to dispute her selection for retrenchment. This argument was held to be unjustifiable, and the Labour Court confirmed their decision in the Robinson matter.
A very important aspect that needs mentioning is that the mere fact that your position might become redundant or cease to exist as a result of the restructuring of the business setup, is not a “selection criterion”. This was confirmed by the Labour Court NUMSA & Others v John Thompson Africa.
Knowledge is Power
When you receive a notice of possible retrenchment, it does not by default mean that it is final! Empower yourself by knowing what the selection criteria is and measure yourself against this criterion as you might have the skills, qualifications or experience to justify your continued employment with the Employer.
Let MISA be your voice!
How to contact MISA during the lockdown?
Kindly utilise the following e-mail addresses and links for assistance during this time:
Employer UIF/TERS Submissions UIFClaim@ms.org.za
Legal/Labour-related enquiries Legal@ms.org.za
* Legal Reception 011 476 3920
MISA Benefit claim-related enquiries Claims@misa.org.za
Any other enquiries Info@ms.org.za
Mobile App https://onelink.to/w9a7ku