Davies Ndumiso Sibanda
AT retrenchment, many workers take futile legal action arguing that the selection criteria for those leaving was not fair and when they lose they allege bias against them.
The first thing workers have to understand is that in terms of retrenchment legislation, there is set procedure to be followed but failure to follow procedure is not fatal as long as nobody is prejudiced because the courts are alive to the fact that administrators of the retrenchment process are lay people who in the majority of cases have no legal training.
This means that where a worker alleges failure to follow procedure, merely mentioning that procedure was not followed is not good enough to nullify the retrenchment as courts will enquire into whether there was any prejudice for example, where the employer fails to issue notices of intention to retrench procedurally but at the end of the day pays the minimum retrenchment package as stipulated in the Labour Act chapter 28:01 (12c)(2), the Courts are unlikely to interfere with the employer’s decision if the employer gave the three months’ notice, paid one month salary for every two years worked and relevant statutory payments.
Going to the criteria, the workers cannot dictate to the employer on who goes and who remains as while the act is silent, the selection is guided by common law principles, which allow the employer to manage the business as he sees fit as long as he does not trample on workers’ rights.
This leaves the worker with very little room to argue discrimination or favouritism. An employer may choose a simple approach of first-in first-out in order to get rid of older employees whom he sees as of less value if the work is physical than the young ones. Alternatively the employer may choose to apply the principle of last-in first-out in order to cut the cost of retrenchment and retain skills and experience.
There are times when other criteria are used such as getting rid of employees who no longer fit into the culture of the organisation. These are employees who generally struggle to respond to change and become disruptive, negatively affecting morale and motivation for other employees and instead of adding value, they question every management decision and create a paralysis of the organisation.
Thus the official reason for retrenchment could be organisational renewal. There are also cases where the employee’s salary is too high to be sustained over long term thus it becomes cheaper to retrench.
There are employees who have health issues and are struggling to add value or doctors have declared that they should do light duty which the employer doesn’t have. All these are candidates for retrenchment.
Retrenchment has also been used as a way of stabilising the management team where two or more managers do not see eye to eye or there are camps that are hampering productivity and efforts to reconcile them have failed.
The board is left with no choice but to sacrifice some of those managers and individuals seen as replaceable in order to move the organisation forward.
At senior management, retrenchment has been used as a way of getting rid of managers who have become a stumbling block to moving forward or have been involved in an embarrassing scandal and at times a senior manager is retrenched with special soft landing as a sacrificial lamb on behalf of the rest of the management team so as to manage a corporate blunder or scandal.
Problem employees have also been retrenched without being told that the reason that they are being retrenched is because of the problems they have with the employer but a legal valued reason is advanced.
Some of the common causes for retrenchment are absenteeism, poor time keeping, noisy at work, gossiping that is disruptive, undignified conduct at work such as love affairs with married colleagues or inappropriate relations with interns or junior employees, coming to work drunk, frequently picking quarrels with other employees and others.
Why employers use retrenchment in these cases is because it is cheaper than the disciplinary process that leaves the employer exposed to an open ended liability.
However, there is no doubt that it is an unfair method of retrenching employees whose unfairness is very difficult to prove in court. In conclusion, the retrenchment criteria rests with the employer and as long as workers’ rights are not violated, the employer can use any criteria that is in the interest of his business.
Davies Ndumiso Sibanda can be contacted on: email: [email protected], Or cell No: 0772 375 235