genuine, not procedural
Consultation must begin before any decisions are made — not after. Courts can tell when consultation is genuine and when it's a box-ticking exercise. We manage the consultation process: drafting the Section 189(3) notice, facilitating joint consensus-seeking meetings, genuinely exploring alternatives, responding to employee proposals, and documenting everything in a way that withstands Labour Court scrutiny.
fair, documented, and defensible
Retrenchment selection criteria must be fair and objective — LIFO (last in, first out), skills retention, or a combination of criteria agreed in consultation. We also help you genuinely explore alternatives: voluntary severance packages, early retirement, reduced hours, temporary layoffs, redeployment, retraining, and salary reductions — documenting why each alternative is or isn't viable.
when disputes arise
If retrenched employees refer unfair dismissal disputes to the CCMA or apply to the Labour Court, OptiHR represents your business — preparing your evidence, presenting your case at conciliation and arbitration, and, where necessary, briefing counsel for Labour Court proceedings. Our admitted attorney principal provides legal authority, not just HR advice.
Start early — Begin consultation when you first contemplate retrenchment, before making any final decisions
Provide full information — Disclose reasons for retrenchment, financial information (if relevant), alternatives already considered, proposed selection criteria, timing, and severance calculations
Allow sufficient time — Consultation typically takes 4-8 weeks minimum; large-scale retrenchments (Section 189A) require a minimum 60-day consultation period
Genuinely explore alternatives — Discuss voluntary packages, reduced hours, redeployment, salary reductions, and any other proposals employees raise
Respond to representations — If employees or unions make written submissions, you must respond in writing with reasons if you disagree
Seek consensus on selection criteria — You cannot unilaterally impose selection criteria without consulting first . If consensus isn't reached, you can decide—but you must show the criteria are fair and objective
Document everything — Keep attendance registers, meeting minutes, proposals made, alternatives discussed, and reasons for rejecting alternatives
Consider facilitation — For large-scale or contentious retrenchments, appoint an independent facilitator (CCMA or private) to ensure consultation is fair
Legally compliant Section 189 consultation process from start to finish
Meaningful consultation in good faith—not rubber stamp exercises
Genuine exploration and documentation of alternatives to dismissal
Comprehensive Section 189(3) notices that don't predetermine outcomes
Fair, defensible selection criteria developed through consultation
Correct severance pay calculations including all benefits
Documented responses to all employee representations
Access to specialist labour law attorneys through our legal network when challenges arise
Protection from unfair dismissal claims, reinstatement orders, and back pay awards
Businesses in Gauteng and across South Africa contemplating retrenchments and wanting to do it legally from the start
Companies facing financial difficulty and needing to genuinely explore alternatives before resorting to forced dismissals
Employers restructuring operations, closing departments, or relocating functions
Organizations implementing technology or automation that makes positions redundant
Businesses with unionized workforces requiring bargaining council compliance and meaningful union consultation
Private schools facing declining enrollment and needing to reduce educator numbers while exploring alternatives
Companies that have already started retrenchments and realized consultation hasn't been meaningful
Employers facing Labour Court reviews or union challenges alleging sham consultation
Consultation is not a box-ticking exercise—it's a legal requirement — Section 189 requires consultation to be a joint consensus-seeking process where both employer and employees work together to avoid dismissals, minimize numbers, change timing, mitigate adverse effects, and explore alternatives . Courts can tell when consultation is genuine and when it's a sham .
Consultation must start BEFORE you make any decisions — The duty to consult is triggered when you contemplate retrenchment, not after you've decided . If your Section 189(3) notice makes retrenchment sound like a done deal, you've already undermined the process and courts will declare it unfair .
You must genuinely explore alternatives—and explain why they won't work — South African labour law requires you to consider alternatives like voluntary severance packages, early retirement, reduced working hours, temporary layoffs, salary reductions, redeployment, retraining, natural attrition, and reduced overtime before resorting to forced retrenchments . You must disclose what alternatives you considered and explain why they're not viable . Simply stating "no alternatives exist" without evidence won't hold up .
Employees must be given a real opportunity to propose alternatives — Consultation means listening to employee proposals and responding to them with reasons if you disagree . If employees suggest alternatives that could work, you must seriously consider them—not dismiss them out of hand .
The new Code of Good Practice: Dismissal (2025) emphasizes substantive fairness — As of September 2025, operational requirements dismissals are covered in the unified Code of Good Practice, meaning courts scrutinize not just whether you consulted, but whether the consultation was substantively meaningful and whether alternatives were genuinely explored .
We know what meaningful consultation actually means — We've seen countless retrenchments fail because consultation was rushed, superficial, or treated as a formality. We ensure your consultation is genuine, well-documented, and defensible .
We help you genuinely explore alternatives—not just tick boxes — We work with you to identify viable alternatives (voluntary packages, reduced hours, redeployment) and document why forced dismissals are the last resort .
Legal network you can trust — Through our established relationships with specialist labour law attorneys, we ensure you have expert legal representation in Labour Court reviews when consultation processes or alternatives assessment are challenged .
We prepare cases that win in court — We manage the entire retrenchment process, document every consultation and alternative explored, and work with our legal partners to build bulletproof cases that survive Labour Court scrutiny .
We know the new 2025 Code — The Code of Good Practice: Dismissal changed fundamentally in September 2025. We're up to date on the new substantive fairness requirements and how courts interpret meaningful consultation .
We manage the entire process—including the hard parts — From facilitating difficult consultation meetings to responding to union proposals to documenting why alternatives won't work, we handle everything
operational requirements dismissals.
Section 189 governs individual and small-scale retrenchments. It requires consultation to be a genuine joint consensus-seeking process that begins before decisions are made, discloses full information, explores alternatives, and considers employee proposals. Section 189A applies to large-scale retrenchments (10+ employees at companies with 50+ employees) with a minimum 60-day consultation period.
substantive fairness requirements.
The 2025 Code of Good Practice emphasises that operational requirements dismissals must be substantively fair — courts scrutinise not just whether consultation occurred, but whether it was genuinely meaningful and whether alternatives were seriously explored. Failing on substantive fairness can result in reinstatement orders.
Questions we hear from employers about managing retrenchments legally and fairly under South African labour law.
OptiHR's service streamlined our compliance and boosted team morale.
Sarah JohnsonHR Director @ Tech Innovations SA
Exceptional expertise in labour law – saved us thousands in fines.
Michael BrownCEO @ Growth Corp
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