What are operational requirements? Operational requirements is defined in the Labour Relations Act 66 of 995 (“LRA”) as “requirements based on the economic, technological, structural or similar needs of an employer” and a dismissal for operational requirements is more commonly referred to as a retrenchment.

What legislation governs a operational requirements dismissal? Section 189 and 189A of the LRA provide the procedure that an employer needs to follow in order to dismiss an employee for operational requirements.

What is the difference between a section 189 and section 189A operational requirements dismissal? The general requirements for a fair dismissal based on an employer’s operational requirements are found in section 189 of the LRA However, section 189A provides for specific procedures and remedies, should an employer embark on a large-scale retrenchment.

What gives Tokiso the authority to conduct facilitation under the LRA? Section 189A(4)  provides that parties can agree to appoint a facilitator not contemplated in subsection (3), which provides for the CCMA to appoint a facilitator. Therefore, parties may agree to appoint a Tokiso facilitator. It is common for parties to request Tokiso to provide a facilitator for a section 189 process to ensure the process is fairly conducted.

How is communication done? All communication must be directed through Tokiso and copied to the other party. Where a party communicates with the panellist through Tokiso about the case before that panellist, Tokiso shall copy both/all parties on any response. This maintains the independence and transparency of the process.

How do request a facilitation? You need to complete the referral form on the Tokiso Website and submit it.

Who requests a facilitation? Either the employer or a union may request Tokiso to facilitate the matter, subject to all parties agreeing thereto.

By when must a party request a facilitation? As soon as an operational requirements dismissal is contemplated and the notices are issued.

Who appoints the facilitator? The parties normally agree to the facilitator, alternatively the parties can agree to request Tokiso to appoint a facilitator.

Who can act as the facilitator? The parties may agree to facilitator from Tokiso’s broader panel. The facilitator need not be CCMA accredited.

Who pays for the facilitation? The employer pays for the facilitation.

Where can the facilitation be held? It can be held online, at the employer’s premises, or another venue in the geographical area where the employee works. Tokiso can assist in arranging the online process or a physical venue.

WE CAN HELP

You are welcome to contact Tokiso for advice and guidance on the process at 011 853 6300 or info@tokiso.com. Tokiso will not give advice on the substantive issues of a case due to our independence.