Facilitation is a process that is conducted by a CCMA commissioner to assist parties in the consultation process when an employer is contemplating large scale dismissals on operational requirements, commonly referred to as retrenchments. These facilitated consultation discussions are required in terms of section 189A of the Labour Relations Act 66 of 1995 (the LRA) if the employer employs more than 50 employees and is contemplating dismissing at least 10 employees if it employs up to 200 employees. The notice of intention to dismiss the affected employees would have been issued by the employer in terms of section 189(3) of the LRA.
The employer or the consulting parties representing the majority of employees whom the employer contemplates dismissing may request the facilitation. If the employer intends requesting section 189(A) facilitation, such intention must be stated in the section 189(3) notice. A consulting party representing the majority of the employees whom the employer contemplates dismissing, may request facilitation in the event of the employer not requesting such facilitation. The request for facilitation must be made using the LRA 7.20 form and must be submitted to the CCMA within 15 days of the section 189(3) notice being issued by the employer.
Due to the possible impact of such large-scale dismissals, the scheduling of a facilitation process is prioritized, with notice of seven days being given to the parties, unless the parties agree to a shorter notice period. A commissioner has 60 days, or any further extension period as agreed by the parties, from the date of the s189(3) notice to conclude the facilitation process.
The facilitation process serves to promote meaningful joint consensus-seeking consultation on measures, amongst others, to avoid the contemplated dismissals or to minimize the number of dismissals in the event of dismissals being unavoidable; to agree on the timing of the dismissals; to mitigate the adverse effects of the dismissals on those concerned; to ensure fairness in the method of selecting the employees to be dismissed; and on the severance packages for the dismissed employees. If the facilitation results in an agreement between the parties, that settles the dispute and is binding on the parties with regard to the issues consulted on.
The facilitation process is different to conciliation and mediation due to the fact that the process is recorded and is a “with prejudice” process, meaning parties are bound by their commitments.
If the 60 days, or any other extended period, has lapsed and no agreement is reached between the parties, the employer may give notice to terminate contracts of the affected employees. A registered trade union or the employees who received the notice of termination may give notice of a strike or refer a dispute concerning whether there is a fair reason for the dismissal to the Labour Court. It should be noted that a consulting party may not give notice of a strike in respect of a dismissal if it has referred a dispute concerning whether there is a fair reason for the dismissal to the Labour Court. Further, if a trade union gives notice of a strike, none of its members may refer a dispute concerning whether there is a fair reason for dismissal to the Labour Court.
Affected parties may refer the matter to the Labour Court should a fair procedure not have been followed. It is important to note that disputes concerning the procedural fairness and substantive fairness in terms of Section 189(A) may not be referred simultaneously to the Labour court, as the remedies are different.
Should the employer issue notices of termination of employment earlier than the period allowed for facilitation, a notice of commencement of a strike may be given immediately and a strike may be embarked upon on expiry of that notice period. A picket in support of the strike may only be authorized by a registered trade union if picket rules have already been agreed upon with that employer or have been determined by a conciliating commissioner.