WHEN CAN AN EMPLOYEE HAVE A RETRENCHMENT DISPUTE ADJUDICATED BY THE CCMA OR A BARGAINING COUNCIL?
Section 191(12) of the Labour Relations Act, Act 66 of 1995 (LRA) stipulates that: ‘An employee who is dismissed by reason of the employer's operational requirements may elect to refer the dispute either to arbitration or to the Labour Court if- (a) the employer followed a consultation procedure that applied to that employee only, irrespective of whether that procedure complied with section 189; (b) the employer‘s operational requirements lead to the dismissal of that employee only; or (c) the employer employs less than ten employees, irrespective of the number of employees who are dismissed’ In as far as the election contained in section 191(12) of the LRA is concerned the LAC in Bracks NO and Another v Rand Water & another (Rand Water) (2010) 31 ILJ 897 (LAC) at para 9, in relation to the before-amendment section 191(12) explained that: ‘S 191(12) does not expressly pronounce upon the jurisdiction of the CCMA. What the section provides is that when a single employee disput...