Can termination on notice issues be resolved

Labour Matters Davies Ndumiso Sibanda
MANY employers who terminated workers’ contracts on notice and workers who were dismissed on notice have not had their matters concluded in terms of the new legislation because a number of aspects of the law lack clarity.

The first problem is the fact that there is a probability of litigation over the legality of the Labour Amendment Act itself given that there are arguments which point towards the fact that certain processes were not followed in the crafting of the legislation.

Furthermore, there are arguments related to both the crafting and the applicability of the clause that provides for retrospective application of the law.

There are also many other legal challenges related to serious clauses in the Labour Amendment Act.

Given these challenges, there are various options for parties involved in termination on notice disputes.

Approaching Labour Officers and Designated Agents of National Employment Councils are options that are available but parties must be clear what they are approaching these institutions for as one could appeal against the termination on notice itself or merely apply for a retrenchment package payment.

The law is silent on how that is assessed. However, retrenchment issues are the territory of the Retrenchment Board and not Labour Officers and Designated Agents.

For employers who wish to comply and pay or who are unable to pay, the answer is to follow retrenchment procedures and tell the employer’s story there.

Waiting to see what others do would be the best option as cases go before the courts where one would be able to get direction from the judges as they interpret the law.

However, where parties are pushed to act there is no need to fear approaching the courts as sitting and doing nothing could be fatal for the party.

In conclusion, as cases are different, employers and employees are asked to seek legal opinion and guidance so as to avoid costly errors.