LABOUR ACT [Chapter 28:01] (as amended) (a) if, subject to subsection (3), the employer fails to show that he dismissed the employee in terms of an employment code; or (b) if, in the absence of an employment code, the employer fails to show that, when dismissing the employee, he had good cause to believe that the employee was guilty of— (i) any act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract; (ii) wilful disobedience to a lawful order given by the employer; (iii) wilful and unlawful destruction of the employer’s property; (iv) theft or fraud; (v) absence from work for a period of five or more working days without leave for no reasonable cause; (vi) habitual and substantial neglect of his duties; (vii) gross incompetence or inefficiency in the performance of his work; (viii) lack of a skill which the employee expressly or impliedly held himself out to possess. (3) An employee is deemed to have been unfairly dismissed— (a) if the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee; (b) if, on termination of an employment contract of fixed duration, the employee— (i) had a legitimate expectation of being reengaged; and (ii) another person was engaged instead of the employee. (4) In any proceedings before a labour officer, designated agent or the Labour Court where the fairness of the dismissal of an employee is in issue, the adjudicating authority shall, in addition to considering the nature or gravity of any misconduct on the part of the dismissed employee, consider whether any mitigation of the misconduct avails to an extent that would have justified action other than dismissal, including the length of the employee’s service, the employee’s previous disciplinary record, the nature of the employment and any special personal circumstances of the employee. 12C Retrenchment (1) An employer who wishes to retrench five or more employees within a period of six months shall— (a) given written notice of his intention— (i) to the works council established for the undertaking; or (ii) if there is no works council established for the undertaking or if a majority of the employees concerned agree to such a course, to the employment council established for the undertaking or industry; or (iii) if there is no works council or employment council for the undertaking concerned, to the Retrenchment Board, and Re-issue in such event any reference in this section to the performance of functions by a works council or employment council shall be construed as a reference to the Retrenchment Board or a person appointed by the Board to perform such functions on its behalf; and provide the works council, employment council or the Retrenchment Board, as the case may be, with details of every employee whom the employer wishes to retrench and of the reasons for the proposed retrenchment; and (c) send a copy of the notice to the Retrenchment Board. (2) A works council or employment council to which notice has been given in terms of subsection (1) shall forthwith attempt to secure agreement between the employer and employees concerned or their representatives as to whether or not the employees should be retrenched and, if they are to be retrenched, the terms and conditions on which they may be retrenched, having regard to the considerations specified in subsection (11). (3) If, within one month after receiving notice in terms of subsection (1), a works council or employment council secures an agreement between the employer and employees concerned or their representatives on the matters referred to in subsection (2), the works council or employment council shall— (a) send the employer its written approval of the retrenchment of the employees concerned in accordance with the agreement; and (b) send the Retrenchment Board a copy of the approval. (4) If, within one month after receiving a notice in terms of subsection (1), a works council or employment council has failed to secure an agreement between the employer and the employees concerned or their representatives on the matters referred to in subsection (2), it shall refer the matter to the Retrenchment Board by sending the Board written notice of the disagreement, together with copies of all documents which the employer and employees concerned may have submitted to the works council or employment council and copies of the minutes of any proceedings and deliberations. (5) No employer shall retrench any employee without affording the employee the notice of termination to which the employee is entitled. (6) The Retrenchment Board shall consider any matter referred to it in terms of subparagraph (iii) of paragraph (a) of subsection (1), or subsection (4), and, having regard to the factors referred to therein, shall, within two weeks of the matter being referred to it, recommend to the Minister in writing whether or not the proposed retrenchment should be permitted and, if so, the terms and conditions upon which it should be effected. (7) For the purpose of formulating recommendations in terms of subsection (6), the Retrenchment Board may in its discretion invite and (b) - 14 - 1st May 2003-