This question has been answered by the Constitutional Court in the recent judgment in National Union of Metal Workers of South Africa and Others v Aveng Trident Steel (a division of Aveng Africa (Pty) Ltd) and Another 2020 ZACC 23.
Aveng experienced economic difficulties during 2014 and entered into lengthy consultations with its employees (through NUMSA) regarding possible retrenchments. During the consultation process, Aveng offered affected employees revised job descriptions and employment packages in an attempt to avoid retrenchments. The employees refused the revised offers, resulting in their dismissals.
The employees alleged that their dismissals constituted an automatically unfair dismissal in terms of section 187(1)(c) of the Labour Relations Act (LRA) for refusing to accept a demand in a matter of mutual interest. The Constitutional Court held that the employees were not dismissed for a failure to accept a demand, but instead as a result of the employer’s operational requirements.
This judgment sets a precedent which allows employers to propose alternative employment packages during a bona fide retrenchment consultation process in the hope to avoid dismissals which, if refused unreasonably, may justify the retrenchment of those employees.
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