The new retrenchment procedure : sections 189 and 189A of the LRA

The Labour Relations Amendment Act of 2002 introduces a range of amendments to the Labour Relations Act. Very significantly for collective labour law, it breaks with the structure of the Act as far as the resolution of operational requirements dismissal disputes is concerned. On the previous approach, parties resorted to power in the last resort to resolve disputes over matters of mutual interest while other disputes could be referred to the Commission for Conciliation Meditation and Arbitration (CCMA) or a bargaining council and/or the Labour Court for their ultimate resolution. Parties could therefore not resort to industrial action over dismissal disputes. The CCMA was (and remains) the final arbiter of all dismissal disputes relating to conduct or capacity while the adjudication of the more socially significant disputes was reserved for the Labour Court. These included dismissal disputes allegedly based on the employer's operational requirements. The LRAA has introduced a new approach to the resolution of such disputes in the case of larger employers and dismissals above a certain theshold. This article explores some of the ramifications.