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 t-rve or more employees within a period of six months shall(a) give written notice of his intention(i) to the works council established for the undertaking; ur (ii) if there is no works council established for the undertak-ing or if a majority of the employees concerned agree to such a coucse, to the employment council established for the undertaking or industry; or I1 page 12 LABOUR RELRTIONS AMENDMENT (iii) if there is no works council or employment council for the undertaking concerned, to the Retrenchment Board, and in such event any reference in this section to the performance of functions by a works council or employ- ment 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 everv 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 agree-ment between the employer and employees concerned or their representa-tives 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 ( l 1 ). (3) If, within one month after receiving notice in terms of subsec tion (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 oI the employees concerned in accordance with the agreement; and (b) send the Retrenchment Board a cvpy of the approval. (4) If, within one month after receiving a notice in terms of subsection ( I ), a works council or employment council has failed to securc an agreement between the employer and the emplvyees concemed or thei~ 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 tv the works council or employment council and copies of the minutes of any proceedings and de liberations. . (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 referrecl ~, it in terms of subparagraph (iii) of paragraph (a) of subsection ( I ), or subsec tion (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 tenu, vf subsection (6), the Retrenchment Board may in its discretion invite and receive representations, whether oral or written, from any interested parties. (8) If the Retrenchment Board fails to make a recommendation within the period specified in subsection (6), the Minister shall require the 5 Board to forwnrd to him all documents in the matter and shall, within two weeks, give his decision in the matter in terms vf subsection (9) as if the Board had made a recommendation in terms of subsection (6). page 13 . ~ ~LABOUit F~iLATtONS AMENDMBNT (9) The Minister shall consider without delay any recommendation submitted to him by the Retrenchment Board and, having regard to the fac-tors referred to in subsection ( 1 I ), shall within two weeksapprove·the proposed retrenchment, subject to such terms and conditions as he may consider necessary or desirable to impose; or (b) refuse to approve the proposed retrenchment; and shall cause the Retrenchment Board, the works council or employment council, as the case may be, to notify the employer and employees concerned in writing of the decision in the matter.