unlawful retrenchment
Unlawful dismissal or retrenchment is where the workman whose service has been terminated feels he has been dismissed without just cause or excuse by his employer. In developed countries, unlawful termination is covered under the law and such cases of such will be referred to the Industrial Relations Department.
Apparently, termination of service is permitted by law for operational reasons, which is commonly known as redundancy. However, the decision to retrench certain employee may be declared wrongful if no sensible or reasonable management could reach to such decision in retrenching the employee. In exercising retrenchment, not only must the employer have good grounds to do so, but the law clearly provides that the employer is required to exercise it fairly. Section 13(3) recognizes management’s prerogatives to employ workers or to terminate them with a proper cause or excuse. While the court generally will not interfere with the bona fide exercise of power given to the management, it is equally important to note that the employer must provide a proper cause or reason before terminating the employee (Marsono et al, 2008). In exercising prerogative, the law also prescribes that the employer has the duty to ensure that retrenchment is properly exercised to avoid any claim of wrongful dismissal. For example, if the retrenchment is carried out for collateral purpose such as to victimize the employees for their legitimate participation in trade union activities, such termination is deemed to be made without a just cause or excuse and that termination may be regarded as on mala fide.
Retrenchment exercise is subject to some governing procedures. The Industrial Court (2005) emphasized that even if redundancy did exist, another question to be considered is whether the retrenchment is done in accordance with the accepted standards of procedure (Marsono et al, 2008). Clause 22 (a) provides the following measures to be taken by the employer:
a) To give as early
Apparently, termination of service is permitted by law for operational reasons, which is commonly known as redundancy. However, the decision to retrench certain employee may be declared wrongful if no sensible or reasonable management could reach to such decision in retrenching the employee. In exercising retrenchment, not only must the employer have good grounds to do so, but the law clearly provides that the employer is required to exercise it fairly. Section 13(3) recognizes management’s prerogatives to employ workers or to terminate them with a proper cause or excuse. While the court generally will not interfere with the bona fide exercise of power given to the management, it is equally important to note that the employer must provide a proper cause or reason before terminating the employee (Marsono et al, 2008). In exercising prerogative, the law also prescribes that the employer has the duty to ensure that retrenchment is properly exercised to avoid any claim of wrongful dismissal. For example, if the retrenchment is carried out for collateral purpose such as to victimize the employees for their legitimate participation in trade union activities, such termination is deemed to be made without a just cause or excuse and that termination may be regarded as on mala fide.
Retrenchment exercise is subject to some governing procedures. The Industrial Court (2005) emphasized that even if redundancy did exist, another question to be considered is whether the retrenchment is done in accordance with the accepted standards of procedure (Marsono et al, 2008). Clause 22 (a) provides the following measures to be taken by the employer:
a) To give as early