Large-Scale Retrenchment: The 60-Day Rule and the Right to a Facilitator

Most retrenchments in South Africa run under section 189 of the Labour Relations Act: the employer issues a notice, consults, and the process is over when the consultation is genuinely exhausted.

Where the employer is large and the number of proposed dismissals crosses a threshold, a different section applies. Section 189A adds two things that change the balance in the room — an independent facilitator, and a hard minimum period before anyone can be dismissed.

Employees are rarely told about either in time to use them.

When section 189A applies

Two conditions have to be met.

The employer employs more than 50 employees. Below that, section 189A does not apply however many people are being retrenched.

And the number contemplated crosses a threshold that scales with the employer's size. The trigger starts at 10 employees for employers at the smaller end of the range and rises to 50 for employers with more than 500 staff, with bands in between.

We are giving the shape rather than a table, deliberately. The bands are set out in the section itself, and your band is the one that decides whether any of this applies to you. Check it against the Act or ask the union or a practitioner — it is the first question, and getting it wrong means arguing about the wrong process.

The facilitator, and the 15 days that decide whether you get one

This is the part employees most often lose by default.

The Commission must appoint a facilitator where either of two things happens:

• the employer requests facilitation in its section 189(3) notice; or
• consulting parties representing the majority of the employees whom the employer contemplates dismissing request it within 15 days of receiving the notice.

Read the second limb carefully, because three separate elements can defeat it.

It must be requested. A facilitator is not appointed because the retrenchment is large. Somebody has to ask.

It must come from parties representing a majority of the employees contemplated for dismissal. One employee cannot trigger it alone. A union representing a majority can; so can a group organising itself.

It must be within 15 days of the notice. Fifteen days, while people are absorbing the news, reading a notice they have never seen before and wondering whether to look for work.

That window is the single most actionable thing in this article. If you are one of a group receiving section 189(3) notices from an employer with more than 50 staff, the question to answer in the first week is not "what will my package be". It is "are we asking for a facilitator, and who is signing the request".

What a facilitator changes

A facilitator is appointed by the CCMA and chairs the consultation. They are not an arbitrator and they do not decide anything — but the practical difference is substantial.

The meetings are chaired by somebody independent. Requests for information have a third party observing whether they are answered. Alternatives to retrenchment have to be engaged with in front of someone whose function is to test the process. And the employer's timetable is no longer the only one in the room.

Facilitation also changes what happens afterwards: the routes available to employees differ depending on whether a facilitator was appointed, which is another reason the 15-day decision matters beyond the meetings themselves.

The 60 days

Section 189A sets a floor:

"Once 60 days have elapsed from the date on which notice was given" an employer may give notice to terminate contracts of employment

and at that same moment the other rights become available — the right to strike over the retrenchment, and the right to refer a dispute to the Labour Court.

Three things follow.

Nothing may be terminated before it. Not by agreement pressure, not by a deadline the employer sets, not by "we need your answer by Friday". An employer that dismisses before the 60 days have run exposes itself to an application in the Labour Court, where the remedies include reinstatement and compensation for procedural failure.

It is a minimum, not a schedule. Sixty days is when dismissal becomes possible, not when consultation must finish. A genuine consultation that needs longer should take longer.

It is also the date the leverage shifts. Before it, employees are consulting. After it, they have a choice of routes, including industrial action over a retrenchment — an option that does not exist in an ordinary section 189 process.

A worked calendar

An employer with 300 staff proposes to retrench 40. It issues section 189(3) notices on 1 March.

1 March. Both clocks start. The 60-day period runs from this date. The 15-day window for a facilitation request runs from receipt of the notice.

By roughly 16 March. The decision that cannot be postponed: do consulting parties representing a majority of the 40 request facilitation? If nobody organises it, the process continues without a CCMA-appointed facilitator and that door is closed.

March and April. Consultation. Requests for information, alternatives to retrenchment, selection criteria, severance. If a facilitator was appointed, they chair it.

Roughly 30 April. Sixty days have elapsed. Only now may the employer give notice to terminate — and only now do the other routes open.

The shape worth noticing is that the most consequential decision falls in the first two weeks, while everyone is still absorbing the news, and the point at which employees gain leverage falls at the very end.

What employees usually get wrong

Treating the notice as a decision. A section 189(3) notice invites consultation on a proposal. It is not a dismissal, and responding to it as though the outcome is fixed forfeits the only part of the process employees can influence.

Waiting for the union to act without checking. Where a union represents a majority, it can request facilitation. Where it does not, or where the affected employees span union and non-union staff, somebody has to add up whether the request represents a majority of those contemplated for dismissal. Assume nobody is doing that arithmetic unless you can see that they are.

Negotiating only the money. Severance is regulated and the movable parts are usually elsewhere: notice worked or paid, the leave balance, the timing of the last day, a certificate of service, agreed wording for references, retraining or redeployment, and whether an alternative role was genuinely explored.

Signing to make it stop. The uncertainty is the hardest part of a retrenchment and a package offered in week two resolves it. It also ends the process, including the parts that exist to test whether the retrenchment was necessary at all.

What to do in the first fortnight

Day one: read the notice and date it. The section 189(3) notice starts both clocks. Photograph or scan it.

Establish the two facts. Does the employer have more than 50 employees, and how many are contemplated for dismissal? If section 189A applies, say so in writing at the first meeting so it is on the record.

Decide about the facilitator immediately. Organise the majority, put the request in writing, and lodge it well inside the 15 days. Do not wait to see how the first meeting goes — the first meeting may be on day 12.

Ask for information in writing. Consultation is meant to be an engagement on the merits, which requires the numbers behind the proposal.

Do not sign anything early. A voluntary severance package signed in week two forfeits the process. It may still be the right answer, but it should be a decision taken with the alternatives on the table, not one taken to end the uncertainty.

Do not resign. Resigning to get ahead of it costs severance, costs the UIF position, and converts a retrenchment into a resignation.

Where this sits

One caution worth carrying across from the transfer article: where a retrenchment follows a sale of the business, a dismissal "related to a transfer" is automatically unfair. A restructure announced immediately after a change of ownership deserves a harder look than one announced in the ordinary course.

Frequently asked

Does section 189A apply to my retrenchment? Only if the employer has more than 50 employees and the number contemplated for dismissal crosses the threshold for that employer's size band. Check the band before assuming either way.

How do we get a facilitator? The Commission must appoint one if the employer asks in its notice, or if consulting parties representing a majority of the employees contemplated for dismissal ask within 15 days of the notice.

We missed the 15 days. The right to a CCMA-appointed facilitator on request falls away. Take advice on what remains, and raise the process failures in writing as consultation continues.

Can the employer dismiss us before 60 days? No. Termination may only follow once 60 days have elapsed from the date the notice was given. A premature dismissal is a matter for the Labour Court.

Does 60 days mean the process must end then? No. It is the earliest point at which dismissal is possible, not a deadline for consultation.

Can we strike over a retrenchment? Once the 60 days have elapsed, industrial action over the retrenchment becomes available — one of the ways section 189A differs from an ordinary section 189 process.

Should I take the voluntary package? Possibly, but not in week two. Get the information, see the alternatives engaged with, and decide with the facts rather than to end the uncertainty.