Was Your Retrenchment Actually Fair
A genuine redundancy and a fair process both need to be true together.
Was Your Retrenchment Actually Fair?
Fairness in a retrenchment rests on two separate questions, and both need to hold up.
The first is whether the redundancy was genuine, meaning the role or function actually disappeared, rather than being a reason invented to remove a specific person.
The second is whether the selection method used to choose who was retrenched was reasonable and explainable.
Last In First Out is the conventional starting point for that selection, and an employer who departs from it needs sound reasons for doing so 1.
What A Genuine Redundancy Actually Looks Like
A genuine redundancy usually involves a role, team, or function that is being reduced or removed for a real operational reason.
Signs worth questioning include a retrenchment that targets one specific person, a role that gets renamed and refilled shortly after, or reasons that shift when questioned.
Whatever the explanation given, the employer still carries the burden of proving the dismissal was for just cause if it is later challenged 2.
Ask directly, in writing, why your specific role was selected and what criteria were used.
What To Do If You Suspect It Was Not Fair
Write down the reason given for the retrenchment, and any selection criteria you were told about.
Check whether the company is hiring for similar roles around the same time, since retrenchment while a company keeps hiring is a specific pattern worth reviewing.
Read about how Last In First Out selection is actually meant to work to compare against your own situation.
An employment lawyer can weigh the reason and the selection method together and tell you whether it looks genuine.
It also helps to keep track of how the announcement itself was handled, including whether other affected colleagues received the same explanation you did.
Inconsistent explanations given to different people in the same round of retrenchment are worth comparing carefully if you are able to do so.
Colleagues going through the same process at the same time can sometimes be a useful source of comparison, provided the conversation stays factual and respectful.
Keeping your own notes separate from theirs still matters, since your account should reflect what you personally experienced and were told.
Genuine redundancy usually leaves a paper trail somewhere in the business.
Asking the right questions tends to surface it.
Checking the genuine redundancy and the selection method together is exactly the kind of review worth doing with an employment lawyer.
Common questions
Does my employer need a real business reason to retrench?
Yes. Retrenchment is meant to address a genuine redundancy, such as a role or department that is no longer needed, not a way to remove a specific individual dressed up as restructuring.
What if only I was retrenched from my department?
A retrenchment of just one person can still be genuine, but it invites closer scrutiny of the reason and the selection method used. Ask for the criteria used to select you, in writing if possible.
Does my employer have to follow Last In First Out?
Last In First Out is the conventional starting point, not an absolute rule, and an employer can depart from it with sound reasons. What matters is whether a reasonable, explainable method was actually used.
What if the company is hiring for a similar role soon after?
That timing is worth documenting closely, since it can undermine the claim that your role was genuinely redundant. Save any job postings or announcements you come across that relate to this.
Sources
- Last In First Out is the conventional principle for selecting who is retrenched, and an employer who departs from it must be able to show sound reasons. Richard Wee Chambers
- The burden falls on the employer, not the employee, to prove the dismissal was for just cause or excuse. Mah Weng Kwai & Associates
Keep reading
Checking the genuine redundancy and the selection method together is exactly the kind of review worth doing with an employment lawyer.