Nothing in law prevents and employer to conduct a retrenchment exercise with an employee that is off work on IOD.
Firstly, it must be remembered that the purpose of the provisions COIDA, as read with the BCEA is that all that the legislation does, is to give an employee legal authority not to be at work or report for work. Otherwise, the employee would have to be at work, and action could be taken against the employee for not being at work. This is however as far as the protection extends. The fact that the employee’s absence from work is legally authorized does not immunize the employee from other proceedings legitimately allowed by law.
The fact is that retrenchment processes are legitimately allowed by law, and the process is prescribed by Section 189 or 189A of the Labour Relations Act. This process does not require the employee to be actually at work or be reporting for work. The process does not relate to the employee needing to fulfil duties (such as for example poor performance proceedings), but is a process designed to meet the operational requirements of an employer.
Therefore, an employee on sick leave (IOD) can thus be subjected to a retrenchment process, subject only to the proviso that the injury must of course not be of such a nature as to prevent the employee from participating in the process (such as being in a coma).