INFORMATION DISCLOSURE: s189 retrenchment – no info…no go
The s189 retrenchment procedure was designed as a problem solving process. This is because the need to retrench is usually not the employee’s fault – or within his or her control. When the employer issues a S189 notice of retrenchments, employees are often taken completely by surprise. Their futures are suddenly put at risk – and they deserve to know why.
The employer must disclose relevant information about the retrenchment to a union representative (S16 (2) of the LRA). But it’s silent on whether an individual employee has the same right. The Labour Court has recently granted an urgent interdict and ordered the employer to disclose the information to the employee. This effectively suspended the s189 process while the information was considered.
TIP: The employer should be prepared to disclose the information to all employees who could be affected by a retrenchment – even if they are not represented by a union.
WHISTLEBOWER: Embarrassing an employer does not always break the trust relationship
A case which started with a dismissal for failure to obey a reasonable instruction finally ended with an LAC order for reinstatement – 9 years later! The arbitrator had found the dismissal unfair and ordered 12 months compensation instead of reinstatement. The arbitrator did not order reinstatement because the employee had embarrassed the employer (vindictively) by publishing an article (between the enquiry and the appeal) in a local magazine. The article alleged that the employer did not have adequate measures to prevent water pollution in its mining operations.
The employer claimed the article caused irreparable harm to the working relationship – which made continued employment impossible.
The employee argued that the article was a “protected disclosure” – and he was entitled to protection. The arbitrator agreed with the employer. On review, the Labour Court agreed with the arbitrator and dismissed the application for review. On appeal, the Labour Appeal Court agreed with the employee. It ordered full reinstatement retrospectively – for 9 years! An expensive result for the employer.
The LAC enforced the employee’s “whistle-blower’s” right to make the protected disclosure under the POPI Act. It recognised that the public interest in water pollution issues outweighed the employer’s embarrassment.
TIP: This case signals that the court will protect an employee who blows the whistle on his employer legitimately – even if he embarrassed his employer in public and damaged the trust relationship in the process. Put another way – the public interest takes precedence over the employer’s interests.
References: De Klerk v Project Freight Group CC (C647/2014) [2014] ZALCCT 44 (14 August 2014); Potgieter v Tubatse Ferrochrome and Others (JA71/12) [2014] ZALAC 32 (12 June 2014); Ref: www.worklaw.co.za
PATRICK DEALE
labour lawyer & mediator Deale Attorneys
Email: [email protected]
Tel: 083 375 8771
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