Where to go with an individual retrenchment dispute?

The powers of a CCMA or Bargaining Council Commissioner in respect of procedural unfairness in individual operational requirements dismissals became problematic when a Labour Court decision found that the CCMA has jurisdiction only if the dispute relates to substantive fairness.  If procedural fairness is at issue, the Court held the CCMA was deprived of jurisdiction and the matter had to be referred to the Labour Court.

However, a more recent Labour Court decision has decided differently on this issue.  The Court found that the wording of Section 191 (12) of the LRA is clear and a single employee dismissed for operational reasons is free to refer the dispute either to the CCMA or to the Labour Court on whatever procedural and or substantive fairness basis the attack may be mounted.

The CCMA has now also followed the guidance from the most recent Labour Court decision and it follows that an individually retrenched employee can prosecute an unfair dismissal claim in either the CCMA / Bargaining Council or the Labour Court, at his / her discretion.

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