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PA6/2018
Lemley v Commission for Conciliation Mediation and Arbitration and Others (PA6/2018) [2020] ZALAC 6; (2020) 41 ILJ 1339 (LAC); [2020] 7 BLLR 676 (LAC) (4 March 2020)
Irvin & Johnson Ltd v CCMA & others (2006) 27 ILJ 935 (LAC).
There are compelling reasons why the legislature saw fit to limit the payment of severance pay in this manner. Not only does it incentivise an employer to provide alternative employment, but it also seeks to limit job losses on retrenchment.
alternative employment in East London
Municipal Systems act
not apply where employer pays more than the minimum unless it is specifically agreed that it would apply
JA68/2018
Telkom SA SOC Limited v van Staden and Others (JA68/2018) [2020] ZALAC 52 (1 December 2020)
[35] It follows that the placement of an employee into a post in a restructuring exercise is distinct from but related to the selection of an employee who has not been placed for retrenchment. As was made clear in South African Breweries (Pty) Ltd v Louw,[[2017] ZALAC 63; [2018] 1 BLLR 26 (LAC); (2018) 39 ILJ 189 (LAC).] the criteria for placement and selection criteria for retrenchment are different and the former is not converted into the latter where an employee is not placed.[28] In a competitive placement process the relative strengths and weaknesses of the different candidates are assessed,[29] particularly where more than one applicant seeks placement into a position.[30] Whereas, selection for retrenchment is undertaken through application of selection criteria which are either agreed or are, in terms of section 189(7), to be fair and objective.[31]
[46] It follows for these reasons that the respondents were not shown to have been unfairly selected for retrenchment and that their dismissal on grounds of the employers operational requirements was not shown to be unfair. The appeal must therefore succeed and the finding of the Labour Court replaced with a finding to this effect. Having regard to considerations of law and fairness no costs order is warranted in this matter.
J 683/2020
South African Transport and Allied Workers Union and Others v Ikapa Coaches ( A division of Cullinan Holdings Ltd) and Others (J 683/2020) [2020] ZALCJHB 148 (2 September 2020)
[30] In the light of the above conclusions, taking into account the conduct of both parties since 12 May 2020 when the notice in terms of section 189(3) of the LRA was issued, and further taking into account the powers vested in this court under the provisions of section 189A(13) of the LRA, it is my view that an appropriate order would be to compel the parties to engage in a joint consensus seeking exercise, but within strict specific time frames.
J 606/20
Engelbrecht v Bachique 705 (Pty) Ltd t/a The New House of Busby (J 606/20) [2020] ZALCJHB 125; (2020) 41 ILJ 2641 (LC) (31 July 2020)
[36] It is common cause that the respondent failed to consult despite the promise to do so. Notably, the respondent was mum about its decision to relocate the Distribution Centre despite having effected the processes the ultimately saw the relocation realised. I have also considered the fact that, if section 189A consultation was revived, with the assistance of the facilitator, it would have taken 60 days for the process to conclude; alternatively, for the respondent to issue a termination letter in terms of section 189A(7). Even without a facilitator, the respondent would have been obliged to engage for at least for a period of 30 days before issuing a termination letter. Thus, in my view, compensation equivalent to three months salary is just and equitable, i.e. R115 555.55 x 3 = 346 666,65
J435/20
Food and Allied Workers Union (FAWU) v South African Breweries (Pty) Ltd (SAB) and Another (J435/20) [2020] ZALCJHB 92; (2020) 41 ILJ 2652 (LC) (28 May 2020)
where an employer offers to consult in a particular manner and the other consulting party refuses to consult in the proposed manner, completion of the process without the other consulting party does not amount to procedural unfairness. The power of the Labour Court is to judicially manage the process and not to dictate to the consulting parties. In the absence of identifiable procedural unfairness, this Court has no powers to intervene in the consultation process. Held: (1) The application is dismissed.
J203/2020
South African Communication Union and Another v Telkom SA SOC Ltd (J203/2020) [2020] ZALCJHB 56; (2020) 41 ILJ 1425 (LC) (5 March 2020)
[27] The court is being asked to intervene under the provisions of s 189A(13)(a), which states189(13) If an employer does not comply with a fair procedure, a consulting party may approach the Labour Court by way of an application for an order -(a) compelling the employer to comply with a fair procedure;
[28] In Edcon v Steenkamp the Labour Appeal Court characterised the purpose of section 189A(13) thus:[25] In summary, section 189A(13) is a procedure designed to enable the Labour Court to urgently intervene in a large-scale retrenchment to ensure that fair procedure is followed. It is not designed to offer a platform for ex post de facto adjudication of unfair procedure disputes. Although a failure to comply with the 30-day period can be condoned, the merits of any condonation application must be understood within the context of an urgent intervention, that being the critical functional characteristic of an application in terms of section 189A(13).[26] Moreover, the intervention contemplated, by its nature does not contemplate a trial at some future remote time. It exists not to facilitate a post mortem but, rather, to oversee the process of retrenchment while it is taking place or shortly thereafter where precipitate dismissals make intervention before actual dismissal impossible, and to reverse the dismissals.
In National Union of Metalworkers of South Africa (NUMSA) obo Members v Toyota South Africa Motors (Pty) Ltd[(2017) 38 ILJ 1162 (LC)] Cele J held:The section 189A (13) remedy was clearly designed to correct a derailment of consultations in a consensus seeking process prescribed by SectionSACU89 and 189A of the Act.[3]
[30] Lastly, in RAWUSA v Schuurman Metal Pressing (Pty) Ltd[[2005] 1 BLLR 78 (LC)], Murphy AJ, as he then was, held:[32](T)he aim of section 189A(13) (Act 66 of 1995) is to provide a remedy to employees to approach the Labour Court to set their employer on the right track where there is a genuine and clear cut procedural unfairness which goes to the core of the process. The section is aimed at securing the process in the interests of a fair outcome. It follows that not every minor transgression of a procedural nature will invite the benefit of the courts discretionary power to grant a remedy. To hold otherwise would be to open the door to excessive litigation, abuse and unnecessary delay in the process of consultation. Section 189A(13) is aimed at unjustifiable intransigence, it is not available as a tool to thwart a retrenchment process where the process, as in the present case, is otherwise capable of being rescued by genuine efforts to cure such flaws as may exist.
[31] Various dicta of the labour court have also elaborated on the extent and manner in which the court might intervene in procedurally unfair retrenchment processes. In AMCU and others v Sibanye Gold Ltd t/a Sibanye Stillwater and others[[2019] 8 BLLR 802 (LC)] Van Niekerk J stated that there were limits on the extent to which the court should intervene under SACU89A(13):[15] The preamble to section 189A(13) makes clear that the Courts intervention is limited to instances of a refusal or failure by the consulting employer to comply with a fair procedure. What the subsection seeks to accomplish, in the face of a prohibition on the right to strike over any dispute that concerns the procedural fairness of a retrenchment and the limitation on the right to refer a dispute of that nature to this Court for adjudication in terms of section 191, is to extend to this Court a real-time supervisory role over the consultation process, with powers to intervene if and when necessary, and to craft a remedy designed to address any procedural shortcoming that is found to exist. The section is not an invitation to consulting parties to use this Court to micro-manage a consultation process intervention ought to be limited to a substantial failure or refusal to comply with the relevant statutory requirements.
[32] In SASBO v Standard Bank of South Africa[(2011) 32 ILJ 1236 (LC)] this court emphasised the importance of orders made under the section not being cast in wide terms:[29] The introduction of the 189A procedure has a short-term preventative aim of pro-actively fostering proper consultation, as opposed to a long term remedial one of compensating employees, following a belated post-mortem examination on what was wrong with the process, long after workers have been retrenched. For this reason, blanket orders which lack specificity about what the parties ought to do are of little value in my opinion and, as far as possible, orders made under section 189A(13) should be crafted to address the defects in the process.
J149/20
National Union of Metalworkers of South Africa (NUMSA) obo Members and Another v South African Airways (SOC) Ltd and Others (J149/20) [2020] ZALCJHB 43; [2020] 6 BLLR 588 (LC); (2020) 41 ILJ 1402 (LC) (14 February 2020)
a dismissal was not contemplated and the duty to consult did not arise. The procedure contemplated in section 189A (13) of the LRA is unavailable to the applicant. There is no basis to declare any action to be unlawful and to issue an injunction.
J142/20
National Association of South African Workers (NASA-Workers) and Another v Uniliver South Africa (Pty) Ltd (J142/20) [2020] ZALCJHB 35; (2020) 41 ILJ 1399 (LC) (14 February 2020)
The purpose of section 189A (13) is to ensure judicial management of the process with the sole purpose to ensure job security. Where job security is not threatened, there is no need for a court to judicial manage the process.
JA32/2020
South African Airways (SOC) Limited (In Business Rescue) and Others v National Union of Metalworkers of South Africa obo Members and Others (JA32/2020) [2020] ZALAC 34; [2020] 8 BLLR 756 (LAC); (2020) 41 ILJ 2113 (LAC) (9 July 2020)
[32] Section 150 makes it plain that the lawmaker intended that the rescue plan must precede any retrenchment and puts paid to any suggestion that the retrenchment process may commence without the plan.
[44] Moreover, and most importantly, there was no proper consultation about the method for selecting which employee would take the new position and which would be dismissed. Avis invited the employees to apply for the new post and imposed the deadline of 25 September 2015 without identifying the criteria of selection. The requirement that employees compete for a post is not in itself a method of selecting for dismissal.[5] More is required. The competition for the post must proceed in accordance with identified criteria of selection. A fair selection method must be chosen to decide who is to stay and who is to go. In the present instance, it was not clear which criteria, (such as skills, qualifications, experience, length of service, productivity, seniority, disciplinary record and the like), would be applied and no effort or attempt was made to engage with the employees to identify, agree and rank such criteria.
JA53/18
Zeda Car Leasing (Pty) Ltd t/a Avis Fleet v Van Dyk (JA53/18) [2020] ZALAC 4; [2020] 6 BLLR 549 (LAC); (2020) 41 ILJ 1360 (LAC) (11 February 2020)
determination of the quantum of compensation requires the court to apply a discretion taking into account the employees length of service- the anxiety suffered by the employee as a result of the employers action and the extent of the deviation from the procedure.
J2011/19
SASBO The Finance Union obo Fourie v Nedbank Limited (J2011/19) [2019] ZALCJHB 317; (2020) 41 ILJ 500 (LC) (28 October 2019)
[10] The purpose of s 189A has been referred to in a number of judgments. In short, the introduction of s 189A sought to enhance the effectiveness of consultation in larger scale retrenchments, amongst other things by the introduction of the option of facilitation at an early stage, an option that may be elected by the employer in the s 189(3) notice, or by affected employees or their representatives within 15 days of the date of the s 189 (3) notice. The appointment of a facilitator suspends the employers right to dismiss for a period of 60 days, calculated from the date on which the s 189 (3) notice is issued. If a facilitator is not appointed, the employers right to dismiss is similarly subject to the expiry of specified time periods, calculated from the date of the s 189 (3) notice. If notice of termination is given, employees have the option to exercise the right to strike over the substantive fairness of their dismissals, or to refer a dispute about substantive fairness to arbitration or adjudication (but not both).
This is particularly so in respect of s 189 (3), where so much of what follows is regulated by reference to the baseline set by the date on which the notice is issued. For all of these reasons, the requirement to issue a notice in terms of s 189 (3) is peremptory, the banks failure to issue the notice is procedurally unfair.
1. The respondents failure to issue a notice in terms of s 189 (3) constitutes procedural unfairness.2. The applicants notice of termination of employment, given on 3 October 2019, is set aside.3. The respondent is directed, should it wish to proceed with a consultation process in respect of any dismissal for operational requirements in its client support division, to issue a notice in terms of s 189(3) and to comply with the applicable provisions of s 189 and s 189A.
J1754/19
Sasbo-The Finance Union obo Madiba v Nedbank Group Limited (J1754/19) [2019] ZALCJHB 263 (4 October 2019)
Order1. The requirements of rule 8 of the rules of this Court are hereby dispensed with, and the application is treated as urgent;2. The respondent acted in a procedurally unfair manner when it proceeded to issue Mr Modibane with the letter dated 26 July 2019, without issuing a written notice in terms of section 189 (3) of the LRA, inviting the applicant to consult on the information recorded therein;3. The respondent acted in a procedurally unfair manner when it proceeded to issue Mr Modibane with the letter dated 26 July 2019, without issuing a written notice prescribed in the Nedbank Retrenchment Policy;4. The respondent acted in a procedurally unfair manner by failing to appoint a facilitator as prescribed by the Nedbank Retrenchment policy;5. The respondent must comply with the prescribed 60 days period, as recorded in the Nedbank Retrenchment Policy; and more particularly, that the 60 day period shall commence on the issue of a section 189 (3) notice to the applicant/ Mr Modibane; alternatively that the Respondent comply with 60 day period as prescribed by section 189A of the LRA;6. The respondent is ordered to initiate and then continue with a meaningful joint consensus seeking process as envisaged by sections 189 and 189A of the LRA;
JS211/17
National Union of Metalworkers of South Africa and Others v Bravo Span 119 CC (JS211/17) [2019] ZALCJHB 184 (30 July 2019)
Association of Mineworkers and Construction Union (AMCU) and Others v Shanduka Coal (Pty) Ltd [2013] JOL 29787 (LC) at paras 29 to 28.
[27] It is well established that the consultation process envisaged under section 189 is intended to be a joint goal orientated problem solving process. It is one in which the parties ought to try and reach a common understanding on the need for and extent of any retrenchments. In examining the need for retrenchment the parties must, as a matter of logic, and in terms of sections 189(2)(a)(i) and (ii), explore if there are ways of addressing the operational need without shedding jobs, or at least by minimising job losses. If job losses cannot reasonably be avoided there is a need to look at what can be done to ameliorate the position of those who will be affected and how they will be selected for retrenchment. Ideally, the logical progression of discussions would follow the sequence of issues set out in section 189(2). However, discussion on these issues often proceed in tandem, so that selection criteria might be discussed even though parties have not yet agreed on the need or extent of any retrenchments. Nothing prevents this happening but to avoid misunderstandings parties would be well advised at each round of consultations to review what has been agreed, what is still unresolved but requiring further consultation, and what is unresolved but where neither party has anything new to suggest which might break the impasse on an issue.[28] Because it is supposed to be a problem solving process, the process is not advanced if it consists of mechanically running through a checklist of items without any engagement between the parties. Likewise, the process is not advanced if obstacles are constantly placed in the way of consultation on the substantive issues taking place. (Emphasis added)
J 1483/17
Sampson v Truvelo Manufacturers (Pty) Ltd (J 1483/17) [2019] ZALCJHB 81 (18 April 2019)
[18] In the present case, the respondent failed to meet the above threshold. It failed to prove that the applicants retrenchment was operationally justifiable on rational grounds. Therefore, the dismissal of the applicant is substantively unfair.
South African Commercial, Catering and Allied Workers Union and Others v Woolworths (Pty) Limited,[(CCT275/17) [2018] ZACC 44 at para 25] the test set out in SA Clothing and Textile Workers Union and Others v Discreto - A Division of Trump and Springbok Holdings[SACTWU and Others v Discreto (A Division of Trump and Springbok Holdings) [1998] 12 BLLR 1228 (LAC) at para 8; see also BMD Knitting Mills (Pty) Ltd v SACTWU [2001] 7 BLLR 705 (LAC) at para 19; CWIU and Others v Algrorax (Pty) Ltd [2003] 11 BLLR 1081 (LAC) at paras 69 70.] was endorsed. In Discreto, the Labour Appeal Court (LAC) held as follows:
JS1052/16
Kgwedi v Bidvest Protea Coin (Pty) Ltd (JS1052/16) [2018] ZALCJHB 425; [2019] 6 BLLR 562 (LC) (18 December 2018)
Haveman v Secequip (Pty) Ltd
A fair reason is one that isbona fideand rationally justified, informed by a proper and valid commercial or business rationale. The enquiry is not whether the reason put up is one which would have been chosen by the court but whether the reason advanced considered objectively is fair.
JS602/13
Banks v UIS Analytical Services (Pty) Ltd (JS602/13) [2018] ZALCJHB 341 (12 October 2018)
SASBO v Standard Bank of SA [2011] JOL 26928 (LC) at para 36
It is trite law that when employees are confronted with a fait accompli any subsequent consultations may be fatally flawed. A fait accompli in the context of retrenchments manifests itself typically when an employer takes unilateral action which forecloses the prospect of meaningful consultation on one or more of the issues in respect of which it ought to consult. Under such conditions a party that is asked to consult where the employer has taken such action may rightly cry "foul". (Emphasis added)
JS829/15
Muller v Landelahni (JS829/15) [2018] ZALCJHB 331 (11 October 2018)
[18] In instances where an employer dismisses an employee due to its operational requirements, the provisions of section 188(1) read together with those of section 192(2) of the LRA obliges the employer to prove that the reason for the dismissal was substantively and procedurally fair. It has been held that the distinction between procedural and substantive fairness in dismissals based on operational requirements are close together, as procedural unfairness may result in substantive unfairness
Woolworths (Pty) Ltd v SACCAWU and Others [2017] 12 BLLR 1217 (LAC); (2018) 39 ILJ 222 (LAC) at para [22]; See also Ndlela v SITA Information Networking Computing BV (2014) 35 ILJ 2236 (LC) where it was stated that;
44. Although as a matter or practice, we tend to separate process from substance, there are no bright lines distinguishing process from substance in the area of dismissals for operational requirements. The procedure mandated by section 189 has a substantive purpose. Its purpose is to save jobs. This is done by considering alternative means by which the operational problem identified by the employer can be addressed without resorting to dismissals. In a case such as the present, where the proffered substantive justification is the need to reduce operating costs, the issue to be discussed at the consultations is whether there are no other areas of the employers business where the costs can be reduced without affecting employment security.45. The purpose behind the need to discuss the selection criterion and to implement a fair selection criterion is also the avoidance of loss of employment. If the job or position cannot be saved, then the focus shifts to other means of mitigating the adverse effects of dismissal.
[67] The LRA places primacy on an agreed method of selection and in Nylin Colin van Staden the Court emphasized that an employer must double its efforts during a consultation process to reach an agreement on the selection criteria and failure to do so, simply means that an employer invites the courts scrutiny on the method it employs.
Nylin Colin van Staden and 13 Others v Telkom SA (SOC) Limited Unreported case number JS 95/15, handed down on 11 May 2018.
JS874/16
Solidarity obo De Klerk v South African State Theatre (JS874/16) [2018] ZALCJHB 296 (20 September 2018)
South African Airways v Bogopa and Others [2008] ZALC 43; (2007) 11 BLLR 1065 (LAC) at para 60.
The question, which arises, is what the obligation of an employer is in relation to the dismissal of employees for operational requirements when it does away with an old structure and adopt a new structure (for operational requirements). An employer has an obligation to try and avoid the dismissal of an employee for operational requirements. This obligation entails that an employer may not dismiss an employee for operational requirements when such employer has a vacant position, the duties of which the employee concerned can perform with or without at least minimal training. Where the employer has a vacancy and the employee can perform the duties attached to that vacancy, the employer would be acting unfairly in dismissing the employee without offering the employee such a position and the employee, having accepted the offer, fails to perform the duties attached to that position satisfactorily, the employer can deal with the case as a case of poor performance. (footnotes omitted)
[56] The Respondent dismally failed to show that a tertiary qualification was a requirement for the position of payroll administrator or payroll clerk and that the fact that the Applicant did not possess such a qualification, was a fair reason to retrench her.
JS 426/11
Gare v T-System South Africa (Pty) Ltd and Another (JS 426/11) [2018] ZALCJHB 381 (3 September 2018)
SA Clothing and Textile Workers Union and Others v Discreto - A Division of Trump and Springbok Holdings SACTWU and Others v Discreto (A Division of Trump and Springbok Holdings) [1998] 12 BLLR 1228 (LAC) at para 8; see also BMD Knitting Mills (Pty) Ltd v SACTWU [2001] 7 BLLR 705 (LAC) at para 19; CWIU and Others v Algrorax (Pty) Ltd [2003] 11 BLLR 1081 (LAC) at paras 69 70.
For the employee fairness is found in the requirement of consultation prior to a final decision on retrenchment. This requirement is essentially a formal or procedural one, but, as is the case in most requirements of this nature, it has a substantive purpose. That purpose is to ensure that the ultimate decision on retrenchment is properly and genuinely justifiable by operational requirements or, put another way, by a commercial or business rationale. The function of a court in scrutinising the consultation process is not to second-guess the commercial or business efficacy of the employers ultimate decision (an issue on which it is, generally, not qualified to pronounce upon), but to pass judgment on whether the ultimate decision arrived at was genuine and not merely a sham (the kind of issue which courts are called upon to do in different settings, every day). The manner in which the court adjudges the latter issue is to enquire whether the legal requirements for a proper consultation process has been followed and, if so, whether the ultimate decision arrived at by the employer is operationally and commercially justifiable on rational grounds, having regard to what emerged from the consultation process. (Emphasis added)
[19] Also, Ms Gare asserts that she had been confronted with a fait accompli, defined as when an employer takes unilateral action which forecloses the prospect of meaningful consultation on one or more of the issues in respect of which it ought to consult.[3] In my view, a fait accompli challenge is unsustainable in the contexts of a section 189A retrenchment. Instead of waiting for the process to conclude and cry foul later, section 189A(13) provides a swift remedy for any procedural indiscretions during the consultation and before the retrenchment is effected.
[20] With regard to the selection criteria, Ms Gare is challenging the objectivity thereof. She testified that LIFO should have been applied and her colleague, Mr Codowell, ought to have been selected as he had less years of service. Mr Wilson, on the other hand, testified that TSSA applied excellent fit criteria which entailed appointing the most suitable candidate for the position.
J1968/18
National Union of Metalworkers of South Africa and Others v Anglo Gold Ashanti Limited and Another (J1968/18) [2018] ZALCJHB 437 (28 June 2018)
[32] It is apparent that the current matter is distinguishable from Aunde 2011] 10 BLLR 945 (LAC);(2011) 32 ILJ 2617 (LAC) on facts. In Aunde, the appellant excluded the respondent, NUMSA, from consultations on the basis that NUMSA was no longer a union whose members formed the majority of the employees. As such it contended that it had no obligation to consult NUMSA in relation to the retrenchment exercise.
[37] The fact that the body that AngloGold is consulting with over the current retrenchment includes further nominees and is facilitated by the CCMA is of no consequence. Section 189A(3) provides for the appointment of a CCMA commissioner to facilitate the retrenchment process and although AngloGold is not obligated in law to consult with any other person, it may do so. As such, AngloGold is under no obligation to consult with NUMSA.
JA140/17
South African Commercial Catering and Allied Workers Union and Others v JDG Trading (Proprietary) Limited (JA140/17) [2018] ZALAC 38 (17 October 2018)
[29] JDGs conduct belies any description of the process as afait accompli. The most probable inference to be drawn regarding the resolution is that JDG had merely formed aprima facieview on the likelihood of retrenchments. An employer in such situations invariably will form aprima facieview on the need for retrenchments. Visser v Atronic International Bmgh [2009] ZALC 76.
the final decision, subsequent consultation was a sham and dismissal was afait accompli
It further refers to the fact that the number of staff, in light of the aforesaid, must be reduced...It concluded that the words must further reduce store staff members in the resolution could be read in the light of the surrounding circumstances as may have to reduce store staff members. The wording of the resolution did not mean that the decision to dismiss was a fait accompli. It, therefore, dismissed the application but made no order as to costs.
Du Toit et al Labour Law Through the Cases LexisNexis, LRA Chapter 8, Commentary on s189(1). October 2017 update.
It would therefore seem that the weight of authority has shifted from a broader to a narrower interpretation of the term contemplates. Having initially accepted that contemplation of dismissal as one of various options was sufficient to trigger the employers duty to consult, the courts now appear to take the view that, for purposes of section 189, contemplates refers to dismissal as the preferred or most likely option from the employers point of view rather than a mere possibility. It follows that the employer is entitled to go through a process of weighing up various alternatives before dismissal can be said to be contemplated. However, the employer may not embark on consultation with a closed mind but must be willing to seriously consider any further alternatives to dismissal that may emerge in the process.
JA23/2017
Association of Mineworkers and Construction Union (AMCU) and Others v Royal Bafokeng Platinum Limited and Others (JA23/2017) [2018] ZALAC 27; [2018] 11 BLLR 1075 (LAC); (2018) 39 ILJ 2205 (LAC) (26 June 2018)
the Legislature had made a policy choice of Majoritarianismin order to facilitate orderly collective bargaining, minimise union rivalry and to foster democratisation of the workplace by avoiding a multiplicity of consulting parties, a proliferation of unions and industrial discontent- section 189 of the LRA is also a manifestation of the policy choice that the legislature made. This policy choice in favour of majoritarianism is no doubt based on the fact that retrenchments are usually collective in nature. Section 189 recognises that the interests of the employees are best served by the most representative entity at the workplace. The entity shall have obtained its seat at the consultation table based on its statistical dominance at the workplace. Having obtained its statistical dominance and entered into a collective agreement with the employer as the exclusive representative of the employees, consultation is more practical and less cumbersome than a multiplicity of consultations with each and every employee at the workplace.
CUSA v Tao Ying Metal Industries and Others2009 (2) SA 204 (CC).
Subject to what is stated in the following paragraphs, the role of the reviewing court is limited to deciding issues that are raised in the review proceedings. It may not on its own raise issues which were not raised by the party who seeks to review an arbitral award.
JA118/13
Mahlakoane v South African Revenue Service (JA118/13) [2018] ZALAC 1 (25 January 2018)
[24] The test on review is not whether the Commissioner was right or wrong, but whether, as laid down by the Constitutional Court inSidumo v Rustenburg Platinum Mines Ltd and Another(Sidumo)[3]and by this Court inGold fields Mining SA (Pty) Ltd v CCMA and Others,[4]the decision made by the Commissioner is one that a reasonable decision-maker could not have made. It is also a trite principle, subsequently restated by this Court and other courts, that if the Commissioner misconstrues the nature of the inquiry and that has an impact on the outcome of the arbitration, it would constitute a reviewable irregularity.
JS548/16
National Union of Metalworkers Union of South Africa and Another v Assmang Machadodorp Chrome Works (Pty) Ltd (JS548/16) [2018] ZALCJHB 93 (6 March 2018)
[10] To conclude then, the applicants dismally failed to make out a case of substantive unfairness in respect of the dismissal of Phakhathi on account of Assmangs operational requirements. Once the dismissal was not challenged on any of the grounds restated in Woolworths, there was no basis in law or fact, for the applicants to approach this court with this claim, and they should have known better.
Woolworths (PTY) Ltd v SACCAWU and Others [2017] 12 BLLR 1217 (LAC); (2018) 39 ILJ 222 (LAC) at para [35]
test for substantive fairness in operational requirements dismissal disputes as follows;It is the general consensus of writers on this subject that the test for the fairness of a retrenchment where s189A applies differs from that applicable to retrenchments to which the section does not apply. We agree with this view. Section 189A(19) which is worded in peremptory terms provided that in any dispute referred to the Labour Court in terms of s191(5)(b)(ii), concerning the dismissal of this category of employees, the Labour Court must find that the employee was dismissed for a fair reason if four grounds are satisfied namely:(a) the dismissal was to give effect to a requirement based on the employers economic, technological, structural or similar needs;(b) the dismissal was operationally justifiable on rational grounds;(c) there was a proper consideration of alternatives; and(d) selection criteria were fair and objective.It is trite that the onus of proving this rests upon the employer
JS1027/15
Van Dyk v Zeda Car Leasing (Pty) Ltd t/a Avis Fleet (JS1027/15) [2018] ZALCJHB 19 (25 January 2018)
Johnson & Johnson v Chemical Industrial Workers Union(1999) 20ILJ89 (LAC) quoted with approval inSASBOsupra.
[51] Overall, no meaningful joint consensus-seeking process occurred and Avis is the culprit. Avis failed to sufficiently consult on alternatives to retrenchment and selection criteria; and failed to accommodate Ms Van Dyk in an alternative position. I am persuaded that Ms Van Dyk was indeed presented with a fiat accompli. For these reason, her dismissal was procedurally unfair.
CA16/2016, C285/2014
South African Breweries (Pty) Ltd v Louw (CA16/2016, C285/2014) [2017] ZALAC 63; [2018] 1 BLLR 26 (LAC); (2018) 39 ILJ 189 (LAC) (24 October 2017)
[26] To move to the impact of this issue on the substantive fairness contention, the so-called unfair selection criteria issue could have had no bearing at all on the failure to be appointed to the Aliwal North Area Manager post. Louw never applied for that post, despite an invitation to do so. The premise of the judgment a quo is that he should have been given it without competing. That finding is without foundation on the facts or on the law. If Louw applied for the George area manager post, he had no good reason not to apply for the Aliwal North post if he wanted the post. The evidence discloses that he declined the prospect of taking up the Aliwal North post by failing to apply for it. Moreover, as already addressed, a competitive process to seek to avoid retrenchment is not unfair.
JR33/15
Johnson v Rajah NO and Others (JR33/15) [2017] ZALCJHB 25 (26 January 2017)
Test is corectness and not reasonableness
[4]The question in constructive dismissal cases is whether there was a dismissal or not. This has to be determined before an enquiry into the fairness thereof could happen. The question whether a dismissal had taken place, goes to jurisdiction and this Court as well as the Labour Appeal Court confirmed on numerous occasions that the review test as laid down inSidumo and Another v Rustenburg Platinum Mines Ltd and Others[1]does not find application in reviewing a jurisdictional ruling[2].
[19]I re-iterate: reasonableness has no place in a review such as this one and the grounds for review related to reasonableness cannot be considered. I will consider this application only on the basis whether the arbitrator was correct to find that the Applicant was not constructively dismissed and whether he erroneously found that she should have filed a formal grievance.
General Food Industries Ltd t/a Blue Ribbon Bakeries v Food & Allied Workers Union and Others (2004) 25 ILJ 1655 (LAC) at 1668 para 37.
[37] Another reason which the court a quo gave for its finding that the dismissal was substantively unfair was that the appellant had failed to discharge the onus of proving that in selecting the second and further respondents for dismissal, it had applied selection criteria that are fair and objective as required by s 189(7)(b) of the Act which applies when no agreement has been reached on the selection criteria to be used. The appellant did not lead any evidence at the trial as to the skills which the employees had who had shorter service periods than the second and further respondents but were retained. The appellant bore the onus to prove that the selection criteria that were applied to select the second and further respondents for dismissal were objective and fair. Both during the consultation and at trial the respondents challenged the appellant to say what skills it was relying upon and the appellant's witnesses never explained these. In these circumstances one finds oneself in a position where one looks at the list of employees who were selected for retrenchment, namely, the second and further respondents and looks at the list of those employees in exhibit B who were retained and who had shorter service periods than the second and further respondents and asks the question: what skills did those who were retained and who had shorter service periods than the second and further respondents have which the second and further respondents did not have? The answer is that on the evidence in this case one simply does not know. In the light of this can it be said that the appellant discharged the onus to prove that the selection criteria applied to select the second and further respondents were fair and objective? The answer is, in my judgment, a clear and unequivocal no. In that event was the court a quo's finding that the dismissal was substantively unfair right? In my judgment, without any doubt!
JA125/2017
Edcon Ltd v Steenkamp and Others (JA125/2017) [2017] ZALAC 81; [2018] 3 BLLR 230 (LAC); (2018) 39 ILJ 531 (LAC) (18 December 2017)
The remedies are designed to be available when an aggrieved applicant brings the application by not later than 30 days after the notification of the possible retrenchment, and thus, 30 days before a dismissal notice may be given. The primary purpose is to get the retrenchment process back onto a track that is fair. Remedies (a) and (b) plainly are appropriate before a dismissal is effected. Remedy (c) is aimed at not only reversing a dismissal, but obligating the employer in future to comply with fairness during an implicitly resumed process, which implies timeous proximity to the dismissals. Remedy (d) is plainly contingent on remedies (a) (b) or (c) being inappropriate in given circumstances; it is thus subordinated to the first three options, and cannot be read disjunctively from the rest. Were it appropriate to separate remedy (d) from the rest, the effect of the section would be to totally contradict section 189A(18). Such an interpretation cannot therefore be sustained, and it is not open to a party to seek primary relief in terms of section 189A(13) (d). The function of section 189A(13)(d) is a residual power, if the given circumstances make the first three remedies inappropriate.[25] In summary, Section189A (13) is a procedure designed to enable the Labour Court to urgently intervene in a large-scale retrenchment to ensure that fair procedure is followed. It is not designed to offer a platform for ex post de facto adjudication of unfair procedure disputes. Although a failure to comply with the 30-day period can be condoned, the merits of any condonation application must be understood within the context of an urgent intervention, that being the critical functional characteristic of an application in terms of section 189A(13).[26] Moreover, the intervention contemplated, by its nature does not contemplate a trial at some future remote time. It exists not to facilitate a post mortem but, rather, to oversee the process of retrenchment while it is taking place or shortly thereafter where precipitate dismissals make intervention before actual dismissal impossible, and to reverse the dismissals.[15] Remedy (d) is a last resort back up to cater only for the inappropriateness of remedies (a) (b) or (c).
JA100/2015
United National Breweries v Ngqimbana (JA100/2015) [2017] ZALAC 76 (30 November 2017)
The last in, first out (LIFO) rule is an acceptable neutral selection criterion. However, at the same time that the employer is reducing its staff, it must maintain its business and fairness recognises that the employer may depart from LIFO and retain the skills of experienced employees, even though they may have shorter service than other employees.
employers economic, technological, structural or similar needs.
Held that the dismissal of a full-time employee who would not work flexi-time would be a dismissal to give effect to a requirement based on the employers economic, technological, structural or similar needs.
It does not follow that just because an employer dismisses an employee due to its economical, technological, structural or similar need that the [Section 189A(i)] precondition has been met. An employer must first establish on a balance of probabilities that the dismissal of the employee contributed in a meaningful way to the realisation of that need. In our view, dismissals for operational requirements must be a measure of last resort, or at least fair under all of the circumstances. A dismissal can only be operationally justifiable on rational grounds if the dismissal is suitably linked to the achievement of the end goal for rational reasons. The selection of an employee for retrenchment can only be fair if regard is had to the employees personal circumstances and the effect that the dismissal will have on him or her compared to the benefit to the employer. This takes into account the principles that dismissal for an employee constitutes the proverbial death sentence.
SA Clothing & Textile Workers Union and Others v Discreto - A Division of Trump and Springbok Holdings (1998) 19 ILJ 1451 (LAC).
.It is important to note that when determining the rationality of the employers ultimate decision on retrenchment, it is not the courts function to decide whether it was the best decision under the circumstances, but only whether it was a rational, commercial or operational decision
[40] The question, whether the dismissal was operationally justifiable on rational grounds
A Clothing & Textile Workers Union and Others v DiscretoA Division of Trump & Springbok Holdings (1998) 19 ILJ 1451 (LAC) (Discreto)
For the employee fairness is found in the requirement of consultation prior to a final decision on retrenchment. This requirement is essentially a formal or procedural one, but, as is the case in most requirements of this nature, it has a substantive purpose. That purpose is to ensure that the ultimate decision on retrenchment is properly and genuinely justifiable by operational requirements or, put another way, by a commercial or business rationale. The function of a court in scrutinising the consultation process is not to second-guess the commercial or business efficacy of the employers ultimate decision (an issue on which it is, generally, not qualified to pronounce upon), but to pass judgment on whether the ultimate decision arrived at was genuine and not merely a sham (the kind of issue which courts are called upon to do in different settings, every day). The manner in which the court adjudges the latter issue is to enquire whether the legal requirements for a proper consultation process has been followed and, if so, whether the ultimate decision arrived at by the employer is operationally and commercially justifiable on rational grounds, having regard to what emerged from the consultation process. It is important to note that when determining the rationality of the employers ultimate decision on retrenchment, it is not the courts function to decide whether it was the best decision under the circumstances, but only whether it was a rational commercial or operational decision, properly taking into account what emerged during the consultation process.[23]
JA56/2016
Woolworths (Pty) Ltd v SACCAWU and Others (JA56/2016) [2017] ZALAC 54; [2017] 12 BLLR 1217 (LAC); (2018) 39 ILJ 222 (LAC) (19 September 2017)
Held that the distinction between procedural and substantive fairness lies close together.
Insurance & Banking Staff Association and Another v Old Mutual Services & Technology Administration and Another (2006) 27 ILJ 1026 (LC).
The overriding consideration under s 189A is to correct and prevent procedurally unfair retrenchments as soon as procedural flaws are detected, so that job losses can be avoided. Correcting a procedurally flawed mass retrenchment long after the process has been completed is often economically prohibitive and practically impossible.... So, the key elements of s 189A are: early expedited, effective intervention and job retention in mass dismissals.[16]
23] It was probably an issue related to substantive fairness of the dismissal to the extent that the Court a quo took the view that the termination of the affected employees services was a fait accompli and that Woolworths conduct during the s189A phase was consistent with its decision to dismiss the 44 full-timers. This must then be evaluated against the two concessions made: Firstly, the need to restructure the business. Secondly, that the affected employees would work flexi-time. The only substantive issue was whether it was fair to dismiss the full-time employees who would work flexi-time but only at full-time rates save for the concession in the unions final proposal.
[35] The question whether the dismissals of the 44 full-timers were substantively fair must be answered within the parameters set by s189A. It is the general consensus of writers on this subject that the test for the fairness of a retrenchment where s189A applies differs from that applicable to retrenchments to which the section does not apply.
See South African Labour Law, Jutastat e-publications, Clive Thompson and Paul Benjamin at RS 66, 2016 AA1-p518 under The broad section 189A formula where the following is said: Larger-scale retrenchments are governed by both sections, with s 189A representing the extra and commanding layer. Smaller-scale retrenchments are governed by s189 only, with a necessarily arbitrary set of numbers determining which workplaces are to be governed by which bundle of rights and obligations. Different consultation processes with different times limits apply, and the test for fairness varies as well.
[91] Section 189A (18) precludes this Court from adjudicating any dispute about the procedural fairness of a dismissal for operational requirements referred for adjudication in terms of Sections 191(5)(b)(ii)
[29] Section 189A(18) reads: The Labour Court may not adjudicate a dispute about the procedural fairness of a dismissal based on the employer's operational requirements in any dispute referred to it in terms of section 191 (5) (b) (ii). See also Edcon (supra) at paras 157 158.[30] (2004) 25 ILJ 2358 (LC) at 2361I-2362B. See also Chemical Energy Paper Printing Wood and Allied Workers Union on behalf of Hlophe and Others v Bayfibre Central Co-Operative Ltd (2017) 38 ILJ 627 (LC) 20; Perumal and Another v Tiger Brands (2007) 28 ILJ 2302 (LC) at para 19; Thomas v Fidelity Corporate Services (Pty) Ltd (2007) 28 ILJ 424 (LC) at para 8.[31] The Section reads: 'If an employer does not comply with a fair procedure, a consulting party may approach the Labour Court by way of an application for an order (a) compelling the employer to comply with a fair procedure; (b) interdicting or restraining the employer from dismissing an employee H prior to complying with a fair procedure; (c) directing the employer to reinstate an employee until it has complied with a fair procedure; (d) make an award of compensation, if an order in terms of paragraphs (a) to (c) is not appropriate.[32] (2006) 27 ILJ 1026 (LC) at para 9.[33] (2007) 28 ILJ 2748 (LC) at para 18. See also Association of Mineworkers and Construction Union and Others v Shanduka Coal (Pty) Ltd (2013) 34 ILJ 1519 (LC) at para 27; National Union of Metalworkers of SA on behalf of Members v General Motors of SA (Pty) Ltd (2009) 30 ILJ 1861 (LC) at para 35; Zero Appliances (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2007) 28 ILJ 1836 (LC) at para 23.[34] (2007) 28 ILJ 1836 (LC) at para 23.[35] (2009) 30 ILJ 1861 (LC) at para 47. See also National Union of Metalworkers of SA and Others v Shakespear Shopfitters (Pty) Ltd (2008) 29 ILJ 1960 (LC) at para 9.[36] (supra) at para 13.[37] (2011) 32 ILJ 1236 (LC) at para 29.[38] (supra) at para 162.[39] (supra) at para 14. [40] (2017) 38 ILJ 463 (LC).[41] Id at paras 19 20.[42] Id at paras 29 30.[43] See Betlane v Shelly Court CC 2011 (1) SA 388 (CC) para 29; see also Van der Merwe and Another v Taylor NO and Others [2007] ZACC 16; 2008 (1) SA 1 (CC) para 122; President of the Republic of SA and Others v SA Rugby Football Union and Others [1999] ZACC 11; 2000 (1) SA 1 (CC) para 150; National Council of Societies for the Prevention of Cruelty to Animals v Openshaw [2008] ZASCA 78; 2008 (5) SA 339 (SCA) paras 29-30.[44] See Imprefed (Pty) Ltd v National Transport Commission [1993] 2 All SA 179 (A) at 188-189.[45] [2013] 3 All SA 404 (SCA) at para 35. See also Naidoo v Minister of Police and Others [2015] 4 All SA 609 (SCA) at para 30; Minister of Safety and Security v Slabbert [2010] 2 All SA 474 (SCA) at para 11; Smith v Kit Kat Group (Pty) Ltd (2017) 38 ILJ 483 (LC) at para 67.[46] Section 189A(8) reads: If a facilitator is not appointed- (a) a party may not refer a dispute to a council or the Commission unless a period of 30 days has lapsed from the date on which notice was given in terms of section 189 (3); and (b)once the periods mentioned in section 64 (1) (a) have elapsed- (i) the employer may give notice to terminate the contracts of employment in accordance with section 37 (1) of the Basic Conditions of Employment Act [47] (2015) 36 ILJ 1469 (LAC).[48] (supra) footnote 28.[49] See Revan Civil Engineering Contractors and Others v National Union of Mineworkers and Others (2012) 33 ILJ 1846 (LAC); De Beers Group Services (Pty) Ltd v National Union of Mineworkers (2011) 32 ILJ 1293 (LAC). Both these judgments have now been overturned. [50] (supra) at para 136.[51] Id at para 186.[52] Id at para 135.[53] These are, in terms of Section 189(2): (a) appropriate measures- (i) to avoid the dismissals; (ii) to minimise the number of dismissals; (iii) to change the timing of the dismissals; and (iv) to mitigate the adverse effects of the dismissals; (b) the method for selecting the employees to be dismissed; and (c) the severance pay for dismissed employees.[54] (2017) 38 ILJ 360 (LC) at para 43. See also National Union of Mineworkers v Anglo American Platinum Ltd and Another (2014) 35 ILJ 1024 (LC) at para 25; Retail and Associated Workers Union of SA v Schuurman Metal Pressing (Pty) Ltd (2004) 25 ILJ 2376 (LC) at para 32; Old Mutual (supra) at para 13; Banks (supra) at para 15.
J1687/15, JS620/15
National Union of Mineworkers and Others v WBHO Construction (Pty) Ltd (J1687/15, JS620/15) [2017] ZALCJHB 512 (13 December 2017)
rationale for retrenchment evidence considered proper rationale for retrenchment shownOperational requirements bumping of employees between operating divisions principles pertaining to bumping considered proper cause for differentiating between divisions proper cause for not applying bumping across all divisions approach of employer fairOperational requirements selection criteria retention of TES employees on specific contracts approach justified employer did not act unfairlyOperational requirements issue of alternatives to retrenchment considered alternatives properly explored lay off policy considered no suitable alternatives availableOperational requirements selection criteria considered fair and objective basis for selecting employees for retrenchment selection of employees not unfairRe-employment alleged failure by employer to re-employ in terms of undertaking constitutes an issue of an unfair labour practice in terms of Section 186(2)(c) of the LRA no such case referred to conciliation cannot be raised nowDismissal operational requirements dismissal substantively fairOperational requirements procedural fairness Section 189A(8) considered no requirement to first refer matter to conciliation before retrenchment absence of referral does not render dismissal procedurally unfair issue is about time limits time limits complied withOperational requirements procedural fairness even if Section 189A(8) not complied with insufficient basis to per se establish procedural unfairness.Operational requirements procedural fairness procedural unfairness can only be challenged in the case where Section 189A applies by way of application in terms of Section 189A(13) procedural challenge thus only be decided on the basis of procedural fairness set out in that application no issue raised that labourers not properly notified of retrenchment or properly consulted cannot be consideredDismissal operational requirements procedural fairness dismissals procedurally fair
[51] The Court in Forecourt Express (Pty) Ltd v SA Transport and Allied Workers Union and Another[7] dealt with the situation where employees were offered alternative positions with a temporary employment service in circumstances where the employer, due to its business methodology, decided to declare those positions internally within the employer itself redundant. This is clearly similar to a situation where an employer wishes to retain TES employees but retrenches permanent employees. The Court firstly held:[8] the appellant was entitled to choose the manner in which it would run its business provided that it did not change the terms and conditions of employment of the employees without their consent, and provided that, if it contemplated the dismissal of the employees, it complied with its obligations provided for in s 189 of the Act.Having established this principle, the Court then said, with specific reference to the operational circumstances of the employer:[9] Du Plessis had testified that, due to peaks and valleys, it made more sense to use labour brokers because the appellant paid only for cars actually moved whereas, if the appellant used permanently employed employees, it would be paying them per hour and not per car moved. In my judgment, even if it can be said that the appellant did not prove 'peaks' and 'valleys', it was entitled to prefer the use of labour brokers and subcontractors to the use of permanently employed workers because the former arrangement gave it certain benefits which the latter arrangement did not offer. Accordingly, whether the peaks and valleys were proved is neither here nor there. The appellant was entitled to choose a way of doing business that was less risky. The way of using labour brokers and subcontractors was less risky than the one of using permanent workers.[52] A similar approach was adopted in National Union of Metalworkers of SA and Others v John Thompson Africa[10] where the Court said, of equal application in casu:Furthermore, the nature of the respondent's business was such that its labour requirements fluctuated in quality and quantity. Labour supplied via a brokerage was therefore more efficient than having a workforce that was fixed.Outsourcing certain work was more effective for the respondent. Mr Petersen's proposition that the respondent would outsource work whilst its own employees stood idle, purely for the purposes of shrinking the business to justify the ultimate retrenchment of the employees is improbable. The respondent existed to make a profit. If outsourcing was not profitable it would have avoided it.The Court in John Thompson then concluded:[11]I find that there was a commercial rationale for the outsourcing of labour. The respondent's use of labour brokers was therefore not unfair.
bumping
Amalgamated Workers Union of SA v Fedics Food Services (1999) 20 ILJ 602 (LC) at paras 3 4.
In other words, should an employee with long service be made redundant in one department he should be transferred to a similar post elsewhere in the establishment, even though it may be occupied by an employee with shorter service. Should there be no such post, the practice is to offer the longer-serving employee a less skilled position occupied by employees with shorter service. This procedure is graphically called ''bumping'. In short, one ''bumps' sideways and down. The restriction of this principle to departments can lead to abuse. Long-serving employees can be transferred to departments where redundancy is expected and thereby retrenched at a later stage. Such a practice would clearly subvert the objective application of the principle.'
General Food Industries Ltd t/a Blue Ribbon Bakeries v Food and Allied Workers Union and Others (2004) 25 ILJ 1655 (LAC) at para 36.
What was also established at the trial in this matter is that through bumping the second and further respondents could have been transferred to other bakeries to take jobs done by employees who had shorter service periods than themselves but performing work that the second and further respondents could perform I can see no justification for an employer to retrench an employee who has served him loyally for, for example 20 years, and retain one who has been employed for only a few months to perform work that the one with a longer service period can also perform. On the contrary allowing that approach in the absence of a really sound reason or explanation could lead to abuse. An employer who wants to get rid of an employee (but lacks legitimate grounds to do so) could transfer such employee to a branch which he knows is likely to embark upon a retrenchment exercise in due course if he thought that such employee would be a likely candidate for retrenchment in that branch on the basis of LIFO which is applied only to the affected branch. In that way the employee could be selected for retrenchment at that branch and be retrenched despite the fact that in his old branch there are employees who have shorter service periods than him who perform work that he can perform.
Porter Motor Group v Karachi (2002) 23 ILJ 348 (LAC) at para 16. See also Mtshali v Bell Equipment [2017] JOL 38221 (LAC) at para 22; Motor Industry Staff Association and Another v Autozone Grahamstown [2016] ZALCJHB 204 (3 June 2016) at para 70.
This does not purport to be an exhaustive list and merely catalogues the rules laid down which are relevant to this case.(1) It should be reiterated once again that fairness is not a one-way street. It must accommodate both employer and employee. Section 189(2) of the Act requires both parties to attempt to reach consensus on alternative measures to retrenchment, so there is a duty on an employee as well to raise bumping as an alternative. An employer is obliged to consult with an employee about the possibility of bumping.(2) Bumping is situated within the 'last in first out' (LIFO) principle which is itself rooted in fairness for well-established reasons. Longer serving employees have devoted a considerable part of their working lives to the company and their experience and expertise are an invaluable asset. Their long service is an objective tribute to their skills and industry and their avoidance of misconduct. In the absence of other factors, to be enumerated hereinafter, their service alone is sufficient reason for them to remain and others to be retrenched. Fairness requires that their loyalty be rewarded.(3) The nature of bumping depends on the circumstances of the case. A useful distinction is that of dividing bumping into horizontal and vertical displacement. The former assumes similar status, conditions of service and pay and the latter any diminution in them.(4) The first principle is well established, namely that bumping should always take place horizontally, before vertical displacement is resorted to. The bumping of an individual, in the absence of the other relevant factors, seldom causes problems and the fact of longer service establishes the inherent fairness thereof. Vertical bumping should only be resorted to where no suitable candidate is available for horizontal bumping. Where small numbers are involved the implementation of horizontal or vertical bumping should present few problems.(5) Where large-scale bumping, sometimes referred to as 'domino bumping', necessitates vast dislocation, inconvenience and disruption, consultation should be directed to achieving fairness to employees while minimizing the disruption to the employer. Examples of disruption include difficulties caused by different pay levels, client or customer reaction to a replacement of employees and staff incompatibility. In evaluating the competing interests of the employer and the affected employees the consulting parties should carry out a balancing exercise. Where minimal benefits accrue to employees, while vast inconvenience is the lot of employers, fairness requires that fewer employees should move.(6) There will always be geographical limitations to bumping in that fairness will require that limits be placed on how far an employee is expected to move to bump another. Although prejudice to the employer in long-distance relocation cannot be excluded, in practice this will be rare. Generally speaking it is the employee who will suffer as a result of being removed from a cultural and social environment he or she has become accustomed to. Second guessing the desires of employees is undesirable; if they are happy to translocate then bumping should take place whatever the distances involved.(7) The pool of possible candidates to be bumped should be established and the circumference thereof will depend on the mobility and status of the employees involved. The managerial prerogative entails moving employees to the best advantage of a company within the parameters of its activities, national or international; fairness requires that the same circumference should define the limits of potential candidates to be bumped. The career path of the employee in the company will often be a useful indication of scale of mobility.(8) The independence of departments as separate business entities may be relevant but the argument that a company's departments are managed separately should be strictly scrutinized. Even if there is no past practice of transferring between branches or departments, the employer must consider interdepartmental bumping unless it is injurious to itself and to other employees.(9) Bumping does not apply to employees in a different grade if the longer serving employee cannot do the work of the employee with shorter service in that grade. This limitation applies most frequently where competence, technical or professional knowledge or experience and specialised skills are involved. Where the necessity arises of retraining those, who are transferred, this should be carried out, unless it places an unreasonable burden on the employer.(10) The status of the post into which an employee is bumped is relevant, as the employer's prerogative to choose someone of managerial/supervisory level should be respected. Management concerns that downgrading an employee will be demoralizing will not justify a decision not to bump downwards where the employee is prepared to accept downgrading. On the other hand the unwillingness of the affected employee to accept a lower wage may justify not bumping.
[74]...As said in Porter Motor Group in the dictum quoted above, it must be a case of an employee that had devoted a considerable part of his or her working life to the employer, which in itself would illustrate the value of such an employee and would establish an objective tribute, in itself, to that employees skills and experience.
Motloutsi and Another v Paballo and Khumo Trading CC (JS07/15) [2017] ZALCJHB 490 (17 November 2017)
The duty rests on an employer to prove that a dismissal of an employee was unavoidable. An employer must disclose all relevant information prior to consultation to ensure meaningful joint consensus-seeking engagement. The dismissal was unfair and the applicants were compensated.
[18] LIFO is generally a fair selection criterion. It simply implies that those employed last may be the first to suffer the consequences of a no fault dismissal.
[19] With regard to procedural fairness, the LRA requires an engagement in a meaningful joint consensus-seeking process aimed at reaching an agreement on appropriate measures, the method of selecting and severance pay. From the evidence before me, such a process was engaged in but parties failed to reach an agreement. Section 189(3) of the LRA obligates an employer to issue a written notice inviting the other party to consultation. Further the employer is obliged to disclose in writing all the relevant information. The notice termed change in operational requirements of business only invites the applicants but does not disclose the relevant information as required by the section.
[20] Accordingly, I come to the conclusion that the dismissal of the first applicant is substantively fair but procedurally unfair. The dismissal of the second applicant is both substantively and procedurally unfair.
3. The respondent is to pay to the first applicant as compensation, an amount equivalent to three months salary as at the time of dismissal less statutory deductions.4. The respondent is to pay to the second applicant as compensation, an amount equivalent to twelve months salary as at the time of dismissal less statutory deductions.
JA/29/16
Kenco Engineering CC v National Union of MetalWorkers of South Africa (NUMSA) obo Members (JA/29/16) [2017] ZALCJHB 274 (1 August 2017)
JR2615/13
Vusa-Isizwe Secuirity (Pty) Ltd v Rampai N.O. and Others (JR2615/13) [2017] ZALCJHB 149 (4 April 2017)
[28]With reinstatement being excluded on the basis that it is not reasonably practicable, the employees would be entitled to compensation.
Xstrata SA (Pty) Ltd (Lydenburg Alloy Works) v National Union of Mineworkers on behalf of Masha and others(2016) 37 ILJ 2313 (LAC)
JS159/16
NUMSA obo Kili and Others v Viva Steel FAB Engineering (Pty) Limited t/a Viva Engineering (JS159/16) [2017] ZALCJHB 339 (6 September 2017)
Chemical Workers Industrial Union and Others v Algorax (Pty) Ltd (2003) 11 BLLR 1081 (LAC)
[69] Sometimes it is said that a court should not be critical of the solution that an employer has decided to employ in order to resolve a problem in its business because it normally will not have the business knowledge or expertise which the employer as a businessperson may have to deal with problems in the workplace. This is true. However, it is not absolute and should not be taken too far. When either the Labour Court or this Court is seized with a dispute about the fairness of a dismissal, it has to determine the fairness of the dismissal objectively. The question whether the dismissal was fair or not must be answered by the court. The court must not defer to the employer for the purpose of answering that question. In other words it cannot say that the employer thinks it is fair, and therefore, it is or should be fair.
The Court in paragraph 70 went further to point that the Court should not hesitate to deal with an issue that requires no special expertise, skill or knowledge particularly where logic and common sense prevail.
JR1006/15; JR1004/15
CVO School Vivo v Pretorius and Others; CVO School Vivo v Pretorius and Others (JR1006/15; JR1004/15) [2017] ZALCJHB 412 (6 April 2017)
elch v Kulu Motors Kenilworth (Pty) Ltd and Others (2013) 34 ILJ 1804 (LC) at para 39.
To the extent that it was suggested by the respondents that barring a financial miracle the applicant was aware that the closure of the business was obvious and inevitable, this did not serve to relieve KMK of its obligation to consult the applicant. Even if the outcome may have seemed unavoidable to some, the required process of consulting at the earliest opportunity and before closure has everything to do with at least giving those most affected an opportunity to make proposals when they may still have an impact and be implemented.
Irvin & Johnson Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2006) 27 ILJ 935 (LAC) at paras 44 45
It seems to me that the effect of s 41(4) is that, where the employer has arranged alternative employment for an employee who is facing a (possible) dismissal for operational requirements, either in his employ or in the employ of another employer, three scenarios are possible: The one scenario is that the employee unreasonably refuses such alternative employment in which case s 41(4) applies and the employee forfeits the right to severance pay. The second scenario is where the employee reasonably refuses such alternative employment in which event he is entitled to payment of severance pay. The third scenario is where the employee accepts the alternative employment in which event he also forfeits the right to severance pay.It will be seen from the three scenarios set out above that in no scenario does an employee get both the severance pay and the alternative employment. However, there is a scenario where he gets neither. That is where he has himself to blame because he has acted unreasonably in refusing the offer of alternative employment.
Pretorius v Rustenburg Local Municipality and Others (2008) 29 ILJ 1113 (LAC) at para 67.
the appellant's rejection of the first respondent's offer of alternative employment and his insistence that he be offered the same position or a position at the same or a higher level is, in all the circumstances of this case, quite unreasonable. Accordingly, he forfeited whatever right he might otherwise have had to severance pay. He was going to suffer no reduction of salary. The position he was offered was quite a senior position. The first respondent had to try and accommodate all the employees. He was to report to the municipal manager. The first respondent made it clear that it needed his technical skills.
Latex Surgical (supra) at para 18(i). See also SA Clothing and Textile Workers Union and Others v Discreto A Division of Trump and Springbok Holdings (1998) 19 ILJ 1451 (LAC) at para 8.
The function of the court in scrutinizing the consultation process is not to second guess the commercial or business efficacy of the employer's ultimate decision but to pass judgment on whether such a decision was genuine and not merely a sham. The court's function is not to decide whether the employer made the best decision under the circumstances, but only whether it was a rational commercial or operational decision, properly taking into account what emerged during the consultation process.
Van Rooyen and Others v Blue Financial Services (SA) (Pty) Ltd (2010) 31 ILJ 2735 (LC) at para 19.
Fair procedure primarily requires that the parties engage in a meaningful joint consensus-seeking process. This obligation, which has its origins in Johnson & Johnson v Chemical Industrial Workers Union (1999) 20 ILJ 89 (LAC), requires at least that the parties attempt to reach consensus on the issues listed in s 189(2) and (3). More precisely, the employer must invite representations on these issues from the appropriate consulting party, seriously consider and respond to any representations that are made. Both parties are required, in good faith, to seek consensus. This is not a mechanical process - meaningful joint decision-making requires that the parties act with the honest intention of exploring the prospects of agreement. If no joint consensus-seeking process has occurred, the court is obliged to determine which party was responsible for this state of affairs.
SA Society of Bank Officials v Standard Bank of SA[27], where the Court said thatConsultation is a two-way street.[103] That being the case, and as held in Johnson and Johnson (Pty) Ltd v Chemical Workers Industrial Union[28]:The achievement of a joint consensus seeking process may be foiled by either one of the consulting parties. In this instance it was the applicant. In Visser v Sanlam[29] the Court held:The process of consultation envisaged in s 189(2) involves a bilateral process in which obligations are imposed upon both parties to consult in good faith in an attempt to achieve the objectives specified in the section. In my view, the respondent fulfilled its obligations in terms of s 189(2). If any conclusion is justified, it is that appellant failed to engage adequately in the consultation process envisaged in the section. Accordingly, it cannot be said that the retrenchment of appellant was procedurally unfair.
Smith and Others v Courier Freight (2008) 29 ILJ 420 (LC) at para 68 69.
I find on a balance of probabilities that the union was responsible for frustrating the restructuring process to the detriment of its members, the employees. In NUMSA & others v Kaefer Thermal Contracting Services (Pty) Ltd [2002] 6 BLLR 570 (LC) the court held that where the consultation process has been frustrated it is not for the party who caused the frustration to complain that there was non-compliance with the consultation process. I am satisfied that the employer made genuine attempts to engage with the union on the retrenchment process. However, it could not allow the union to delay the process of restructuring indefinitely. The union overplayed its hand and must now accept the consequences of its ill-advised decision unnecessarily to delay the consultation process. In the light of the aforesaid, I believe there was substantial compliance with the provision of s 189 of the Act by the employer.
Freshmark (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2003) 24 ILJ 373 (LAC) at para 25.
. an employee who unreasonably refuses an offer of alternative employment is not without fault. He has himself to blame if he subsequently finds himself without employment and, therefore, does not deserve to be treated on the same basis as the employee who finds himself without employment due to no fault on his part . Where the employer offers to continue to employ the employee - whether in the same position but on different terms or on the same terms but in a different position or in the same position and on the same terms but in a different place, that is still alternative employment. It is an offer of an alternative contract of employment.
Latex Surgical
. Accordingly, when an employer's operational requirements dictate that its workforce should work in accordance with certain terms and conditions by which such workforce is not bound, the employer should convey this to the workforce and ask them to agree to work according to such terms and conditions, negotiate with them and warn them that, if they reject such terms and conditions, he will have to terminate their contracts of employment and employ new employees in their place, who will accept such terms and conditions. If the employees reject such proposals and the employer terminates their services, the employees cannot complain that they were not given a chance to avoid their dismissal by accepting the new terms and conditions of employment.
Entertainment Catering Commercial and Allied Workers Union of SA and Others v Shoprite Checkers t/a OK Krugersdorp (2000) 21 ILJ 1347 (LC) at para 28.
where the amendment to terms and conditions of employment is proffered by an employer as an alternative to dismissal during a bona fide retrenchment exercise and it is a reasonable alternative based upon the employer's operational requirements, the employer will be justified in dismissing employees who refuse to accept the alternative on offer.
Mineworkers Union/Solidarity on behalf of MacGregor v SA National Parks (2006) 27 ILJ 818 (LC) at para 39.
If the applicant had followed the instructions of Mr Mogome, he would have just continued in the employ of the respondent, but in the position of manager: environmental management services. His intransigent stance in refusing to change direction caused the respondent to advertise that position internally and to treat all the applicants the same. The applicant was nonetheless encouraged to apply, even belatedly, as the respondent believed he was the best person for the position. However, after the long consultation process, which included meetings and correspondence, the respondent was entitled to decide not to accept an 'under duress' application for the position. The applicant was interviewed though. It was clear that he was not interested in the position. If he was, he would have withdrawn the 'under duress' reservation.
Forecourt Express (Pty) Ltd v SA Transport and Allied Workers Union and Another (2006) 27 ILJ 2537 (LAC).
JS 398 / 15
RISMA VILJOEN vs JOHANNESBURG STOCK EXCHANGE LTD
Chemical Workers Industrial Union and Others v Latex Surgical Products (Pty) Ltd (2006) 27 ILJ 292 (LAC) at para 55.
Whether or not there was a fair reason for the dismissal of the individual appellants relates to a general question and a specific question. The general question is whether or not there was a fair reason for the dismissal of any employees. The specific one is whether there was a fair reason for the dismissal of the specific employees who were dismissed, which in this case, happened to be the individual appellants. The question of a fair reason to dismiss the specific employees who were dismissed goes to the question of the basis upon which they were selected for dismissal whereas the other question relates to whether or not there was a reason to dismiss any employees in the first place.
Therefore, there exists a proper business rationale in this instance.
Kotze v Rebel Discount Liquor Group (Pty) Ltd (2000) 21 ILJ 129 (LAC) at para 36.
What we have to do is to decide whether the respondent's decision to retrench was informed and is justified by a proper and valid commercial or business rationale. If it is, then that is the end of the enquiry even if it might not have been the best under the circumstances.
Van Rooyen and Others v Blue Financial Services (SA) (Pty) Ltd (2010) 31 ILJ 2735 (LC) at para 22.
It is clear though that the regional managers would, in the restructured organization, be required to undertake additional responsibilities in relation to the expanded product lines and that the nature of their function would change. On balance, I am satisfied that the respondent has established that the difference in job content between the old and the new profiles of the regional managers' positions was sufficiently significant to justify the requirement that the applicants be assessed for their suitability for appointment to the new positions. Indeed, this appears to be the approach adopted by the applicants themselves in their memorandum addressed to Klopper on 28 December 2007 in which they appear to accept that the new profile developed by the respondent was technically exact and complete, and that the additional responsibilities that regional managers would be required to assume had the consequence of an appreciable difference in job content. In short, I am satisfied that the respondent has established a fair commercial rationale for its decision to restructure its business operations and that the change rendered the applicants redundant, at least in the sense that its decision to assess the applicants' suitability for the restructured posts was fair in the circumstances.
redundancy can result from a reorganization of a business.
Plaaslike Oorgangsraad van Bronkhorstspruit v Senekal (2001) 22 ILJ 602 (SCA) at para 27.
on the evidence their jobs did become redundant; it was their duties that remained and were allocated for performance by other employees within the revised structure.
Broll Property Group (Pty) Ltd v Du Pont and Others (2006) 27 ILJ 269 (LAC) at para 24.
on the evidence their jobs did become redundant; it was their duties that remained and were allocated for performance by other employees within the revised structure.The aforesaid being found to be the case, the Court then concluded:[6] It followed that the three respondents were liable to be dismissed for substantive reasons unless they were appointed to other positions within the revised structure.
J2578/15
Association of Mineworkers and Construction Union (AMCU) and Others v Bafokeng Rasimone Management Services (Pty) Ltd and Others (J2578/15) [2016] ZALCJHB 549; (2017) 38 ILJ 931 (LC) (19 December 2016)
[154] The elevation to the status of consulting party as contemplated in section 189(1)(a) of the LRA, is strictly speaking not dependent on the principle of majoritarianism, but rather on such a party acquiring the status of consulting party by way of a collective agreement.[155] It is not envisaged in section 189 retrenchment procedures that the affected employees would be afforded a hearing as contemplated in a dismissal for misconduct or incapacity. The nature of the consultation process and the topics for consultation in a retrenchment process cannot be compared to a hearing as contemplated in cases involving misconduct or incapacity.[156] In my view there is no basis to excise sections 189(1)(a)-(c) from the LRA, alternatively to reinterpret it and to declare that where an employer consults with a trade union that employer is required to consult within terms of a collective agreement, that employer must also consult with any other trade union whose members are likely to be affected by the proposed dismissals.[157] To do so would not only disregard judgments this Court is bound to follow, but would also ignore and probably undermine conscious policy choices made by the legislature when formulating the LRA.
JS1/2015
Motor Industry Staff Association and Another v Autozone Grahamstown (JS1/2015) [2016] ZALCJHB 204 (3 June 2016)
Porter Motor Group v Karachi [2002] 4 BLLR 357 (LAC).
(1) it should be reiterated once again that fairness is not a one-way street. It must accommodate both employer and employee. Section 189 (2) of the Act requires both parties to attempt to reach consensus on alternative measures to retrenchment, so there is a duty on an employee as well to raise bumping as an alternative. An employer is obliged to consult with an employee about the possibility of bumping.(2) Bumping is situated within the "last in first out" (LIFO) principle which is itself rooted in fairness for well-established reasons. Longer serving employees have devoted a considerable part of their working lives to the company and their experience and expertise is, an invaluable asset. Their long service is an objective tribute to their skills and industry and the avoidance of misconduct. In the absence of other factors, to be numerator during after, their service alone is sufficient reason for them to remain and others to be retrenched. Fairness requires that the loyalty be awarded.(3) The nature of bumping depends on the circumstances of the case. A useful distinction is that of providing bumping into horizontal and vertical displacement. The former assumes similar status, conditions of service and pay and the latter any diminution in them.(4) The first principle is well-established, namely that bumping should always take place horizontally, before vertical displacement is resorted to. The bumping of an individual, in the absence of the other relevant factors, seldom causes problems and the fact of longer service establishes the inherent fairness thereof. Vertical bumping should only be resorted to where no suitable candidate is available for horizontal bumping. Where small numbers are involved the implementation of horizontal or vertical bumping should present few problems.....(7) The pool off possible candidates to be bumped should be established and the circumference thereof will depend on the mobility and status of the employees involved. The managerial prerogative entails moving employees to the best advantage of a company within the parameters of its activities, national or international; fairness requires that the same circumference should define the limits of potential candidates to be bumped. The career path of the employee in the company will often be a useful indication of scale of mobility.....(9) Bumping does not apply to employees in a different grade if the longest serving employee cannot do the work of the employee with shorter service in that grade. This limitation applies most frequently where competence, technical or professional knowledge or experience and specialised skills are involved. Where the necessity arises of retraining those, what transferred, this should be carried out, unless it places an unreasonable burden on the employer.(10) The status of the post into which an employee is bumped is relevant, as the employer's prerogative to choose someone of managerial/supervisory level should be respected.'
This is a case where it would be unfair to the employer in a small set up such as the branch to deplete the existing skills by bumping the debtor's clerk or the merchandiser.
JS100/2012B
Runguma v Civicus: World Alliance for Citizen Participation Inc (JS100/2012B) [2016] ZALCJHB 178 (12 May 2016)
Chemical Workers Industrial Union & others v Latex Surgical Products (PTY) (2006) 27 ILJ 292 at 320 A-B
The two types of selection criteria can be referred to as the agreed selection criteria and the fair and objective selection criteria respectively. Obviously the agreed selection criteria are selection criteria that have been agreed upon between the consulting parties. The fair and objective selection criteria must be used where the selection criteria have not been agreed upon between the consulting parties. What s 189(7), therefore, means is that, where the consulting parties have agreed upon the selection criteria, the employer is obliged to use the agreed selection criteria to select the employees to be dismissed. Where there are no agreed selection criteria, the employer is obliged to use only fair and objective selection criteria to select the employees to be dismissed.
The Applicant had not, in any manner objected to the alternative of the selection process based on criteria identified. His concern insofar as the process of selection was concerned was that even though the majority of the management team agreed to it, individual concerns were nevertheless not taken into account. This in my view can hardly lead to a conclusion that the process of selection was not fair or objective, especially if it was agreed upon by the management team he formed part of.
J18/2014 LAC
Standard Bank of South Africa Ltd v Letsoalo (J18/2014) [2016] ZALAC 43 (27 July 2016)
ACTWU and Another v Discreto(a Division of Trump &SpringbokHoldings) [1998] 12 BLLR 1228 (LAC)
the function of a court in scrutinising the consultation process is not to second-guess the commercial or business efficacy of the employers ultimate decision, but to pass judgment on whether the ultimate decision arrived at was genuine and not merely a sham.
Duty of employer to find alternative to retrenchment. Always unfair where dismissal occurs when there is an alternative available at the time of the dismissal.
JS1117/10
National Union of Metalworkers of South Africa and Others v Beta Engineering (1969) (JS1117/10) [2016] ZALCJHB 144 (31 March 2016)
It is my view that the LIFO principle mandates the employer to take into account the length ofcontinuousemployment and not intermittent or cumulative periods of service.
In short, the conclusion to be drawn from the wording of s 189A is that this court appears to have been accorded a proactive and supervisory role in relation to the procedural obligations that attach to operational requirements dismissals. Where the remedy soughtrequires intervention in the consultation process prior to dismissal, the court ought necessarily to afford a remedy that accounts for the stage that the consultation has reached, the prospect of any joint consensus-seeking engagement being resumed, the attitude of both parties, the nature and extent of the procedural shortcomings that are alleged and the like. If it appears to the court that little or no purpose would be served by intervention in the consultation process in one of the forms contemplated by s 189A(13)(a),(b)and(c), then compensation as provided by para(d)is the more apposite remedy.
NUM and others v Anglo American Research Laboratories (Pty) Ltd[2005)2 BLLR 148(LC), Murphy AJ considered an employer's deviation from LIFO and its selection criteria based on key skills retention and continued service delivery to its clients. In that instance, a skills matrix was developed but regard is also had to performance appraisals. The court held that in the circumstances in which the company found itself, the criteria applied within objective as required by s 189 (7)(b). Similarly, inVan Rooyen and others v Blue Financial Services (SA) (Pty) Ltd(2010) 31 ILJ 2735 (LC), the court held that an employer was entitled to have regard to competency , qualifications and experience as selection criteria.
application should ensure that the dismissal does not cross the line between a no-fault dismissal and one based on performance
SATAWU v Old Mutual Life Assurance Company South Africa Ltd and Another [2005] 4 BLLR 378 (LC) at para 85.
J332 /16
Association of Mineworkers And Construction Union (AMCU) and Another v Manganese (J332 /16) [2016] ZALCJHB 105 (18 March 2016)
Dispute of fact. Referred for oral evidence.
Banks and another v Coca-Cola SA - A Division of Coca-Cola Africa (Pty) Ltd (2007) 28 ILJ 2748 (LC).
NUM and Another v Black Mountain Mining (Pty) Ltd (CA22/2012) [2014] ZALAC 78 (10 December 2014) at para 37.
Steenkamp and others v Edcon Limited and others Unreported case number CCT 46/15, 22 January 2016.
where an employer already dismissed employees without complying with a fair procedure, the consulting party may apply for an order reinstating the employees until the employer has complied with a fair procedure.
J3159/12, JS1177/12
SACCAWU and Others v Woolworths (Pty) Ltd (J3159/12, JS1177/12) [2016] ZALCJHB 126 (5 March 2016)
Dismiss employees for operational requirements in order to eliminate discrimination based on pay inequity: was operationally justifiable, to use equity as one of its grounds for operational requirements. It is incompetent for an employer to seek to protect an individual right not to be unfairly discriminated through an operational requirements process and thereby circumventing its obligation under Chapter III of the EEA.
BMD Knitting Mills (Pty) Ltd v SACTWU [2001] 7 BLLR 705 (LAC) at para 19; see also CWIU and Others v Algrorax (Pty) Ltd [2003] 11 BLLR 1081 (LAC) at paras 69 70.
I have some doubt as to whether this deferential approach which is sourced in the principles of administrative review is equally applicable to a decision by an employer to dismiss employees particularly in the light of the wording of the section of the Act, namely, the reason for dismissal is a fair reason. The word fair introduces a comparator, that is a reason which must be fair to both parties affected by the decision. The starting point is whether there is a commercial rationale for the decision. But, rather than take such justification at face value, a court is entitled to examine whether the particular decision has been taken in a manner which is also fair to the affected party, namely the employees to be retrenched. To this extent the court is entitled to enquire as to whether a reasonable basis exists on which the decision, including the proposed manner, to dismiss for operational requirements is predicated. Viewed accordingly, the test becomes less deferential and the court is entitled to examine the content of the reasons given by the employer, albeit that the enquiry is not directed to whether the reason offered is the one which would have been chosen by the court. Fairness, not correctness is the mandated test.
The test formulated by the legislature in the 2002 amendments harkens back to the principle of proportionality or the rational basis test applied in constitutional and administrative adjudication in other jurisdictions.As such, the test involves a measure of deference to the managerial prerogative about whether the decision to retrench is a legitimate exercise of managerial authority for the purpose of attaining a commercially acceptable objective. Such deference does not amount to an abdication and, as stated inBMD Knitting Mills (Ply) Ltd(supra), the court is entitled to look at the content of the reasons given to ensure that they are neither arbitrary nor capricious and are indeed aimed at a commercially acceptable objective.The second leg of the enquiry is directed at the investigation of the proportionality or rationality of the process by which the commercial objectives are to be achieved.Thus, there should be a rational connection between the employer's scheme and its commercial objective, and through the consideration of alternatives an attempt should be made to find the alternative which least harms the rights of the employees in order to be fair to them. The alternative eventually applied need not be the best means, or the least drastic alternative. Rather it shouldfall within the range of reasonable options available in the circumstances allowing for the employer's margin of appreciation to the employee in the exercise of its managerial prerogative.
JA 54/14
GEMALTO SOUTH AFRICA (PTY) LTD
In the Labour Court, the appellant sought the review of the award on the basis that the award is defective and that the commissioners decision is not one that a reasonable decision-maker would have made when regard is had to the evidence before him; that the commissioner committed a gross irregularity in the conduct of the proceedings by misapplying the parity principle; he failed to apply his mind to the fact that the appellant only disciplined those employees it could prove had breached their contractual obligations and were therefore guilty of gross misconduct and, that the commissioner failed to apply the correct test which was to consider whether the appellant by distinguishing between the employees acted capriciously, arbitrarily or as a result of improper motive.
The failure of employers to fulfil this obligation meaningfully, invariably leads to disputes, misconceptions, a breakdown in trust and the delegitimizing of the joint consensus-seeking process mandated by the statute.
Ndlhela v Sita Information Networking Computing BV (Incorporated in the Netherlands) [2014] 35 ILJ 2236 (LC)
It does not follow that just because an employer dismisses an employee due to its economical, technological, structural or similar need that the [Section 189A(i)] precondition has been met. An employer must first establish on a balance of probabilities that the dismissal of the employee contributed in a meaningful way to the realisation of that need.In my view, dismissals for operational requirements must be a measure of last resort, or at least fair under all of the circumstances. A dismissal can only be operationally justifiable on rational grounds if the dismissal is suitably linked to the achievement of the end goal for rational reasons. The selection of an employee for retrenchment can only be fair if regard is had to the employees personal circumstances and the effect that the dismissal will have on him or her compared to the benefit to the employer. This takes into account the principles that dismissal for an employee constitutes the proverbial death sentence.
General Food Industries Ltd v FAWU 2003) 2 BLLR 140 (LAC) at para [33]
JS491/10
South African Transport and Allied Workers Union and Others v Fedex Express Supaswift (Pty) Ltd (JS491/10) [2016] ZALCJHB 164 (12 February 2016)
Test for procedural and substantive fairness in dismissals for operational reasons revisited; Employer required to proactively supply relevant financial data justifying claims of cost saving, huge losses, for profit, where that is a ground for alleged operational requirements; Procedural lapses have substantive implications; Fair procedure serves a substantive purpose. [44]From the outset I think it ought to have been mentioned that the peremptory speak ofs189(3)must be purposefully aimed compelling the employer to proactively supply all information that is relevant to the other parties to consultation. This procedural step serves a substantive purpose. It allows the union to be fullyau fairwith the issues, so that it can be placed in the speed that will enable it run along with the employer, along the tramlines set in the items(a)to(j)in identifying all matters and details that needs to be identified and dealt with. ...[67] the organogram, as this court has observed, amounted to nothing more that moving chairs to different decks in the same vessel. It proposed reclassification of jobs without changing the job specifications. It was an attempt to derive a consent from employees for a change in their conditions of employment, which amounted to accepting demotions. It did not constitute a fair reason for the dismissal of the second and further applicants.
Moodley v Fidelity Cleaning Services (Pty) Ltd t/a Fidelity Supercare (2005) 26 ILJ 889 (LC) paras 5, 34.
A critical, if not the most central ingredient of the consultation process, is the requirement of written notice and the disclosure of information. Effective consultation requires employees to have an opportunity to prepare for consultation by being given sufficient advance notice, an agenda and adequate information. Without this, the joint consensus-seeking process mandated by the legislature is hardly likely to be meaningful . . . The failure of employers to fulfil this obligation meaningfully, invariably leads to disputes, misconceptions, a breakdown in trust and the delegitimizing of the joint consensus-seeking process mandated by the statute.
This does not entitle the court to decide if the reasons given by an employer are the best reasons available. The Labour Court is constitutionally and statutorily required to supervise the fairness of reasons given by employers where they dismiss employees on operational grounds. This cannot happen in vacuo. Where an employer contends that the operational justification for its decision to dismiss is reduction of operating costs, it must at least put forward evidence showing the actual operating costs which it sought to reduce. This can be done by producing financial information which demonstrates the relevant operating costs. This should not been an onerous task. Any sensible employer wishing to reduce costs must first know what costs are to be reduced.In addition, where an employer wishes to cut operating costs by reducing its headcount, it must at least produce evidence of the costs associated with the headcount and how this will meet the overall target of cost reduction. In the absence of this information, it is not possible for a court to decide if the decision is not arbitrary or capricious. Nor is it possible to decide if the decision is a rational or reasonable one, based on the information which was available to an employer at the time it decided to embark on a restructuring exercise.
JS49/12
South African Transport and Allied Workers Union and Others v G4S Aviation Secure Solutions (JS49/12) [2016] ZALCJHB 10 (13 January 2016)
in my view falls squarely within the realm of economic reasons contemplated within the meaning of operational requirements. These reasons related to the financial management and competitiveness of the enterprise (within the meaning of similar reasons)
BMD Knitting Mills (Pty) Lt [2001] 7 BLLR 705 (LAC)
The starting point is whether there is a commercial rationale for the decision. But, rather than take such justification at face value, a court is entitled to examine whether the particular decision has been taken in a manner which is also fair to the affected party, namely the employees to be retrenched. To this extent the court is required to enquire as to whether a reasonable basis exists on which the decision, including the proposed manner, to dismiss for operational requirements is predicated. Viewed accordingly, the test becomes less deferential and the court is entitled to examine the content of the reasons given by the employer, albeit that the enquiry is not directed to whether the reason offered is the one which would have been chosen by the court. Fairness, not correctness is the mandated test
JS1079/12
South African Commercial & Catering Workers Union obo Bheki and Others v Entabeni Private Game Lodge (Pty) Ltd (JS1079/12) [2015] ZALCJHB 410 (18 November 2015)
Kotze v Rebel Discount Liquor Group (Pty) Ltd (2000) 21 ILJ 129 (LAC) at para 18(h)-(i)
The final decision to retrench must be informed by what transpired during consultation. That is why consultation must precede the final decision. The requirement of consultation is essentially a formal or procedural one, but it also has a substantive purpose. That purpose is to ensure that such a decision is properly and genuinely justifiable by the operational requirements or by a commercial or business rationale.AndThe function of the court in scrutinising the consultation process is not to second-guess the commercial or business efficacy of the employers ultimate decision but to pass judgment on whether such a decision was genuine and not merely a sham. The courts function is not to decide whether the employer made the best decision under the circumstances, but only whether it was a rational commercial or operational decision, properly taking into account what emerged during the consultation process.
JS788/2012
Ndaba and Others v T - Systems (Pty) Ltd and Others (JS788/2012) [2015] ZALCJHB 346 (7 October 2015)
It therefore follows from the above that the claim brought before the Court after the dismissal took place can only be in respect of an alleged substantive unfairness in terms of section 189A(18) and section189(19) of the LRA. The Court therefore lacks jurisdiction in regards to any claim of procedural unfairness in respect of the retrenchments. Furthermore, in line with the principles as set out in Edcon, there is no basis for any conclusion to be reached that the retrenchments were unlawful, invalid and/or of no force and effect.
JS906/10
MMusi and Another v Vemisani Security Services CC (JS906/10) [2015] ZALCJHB 343 (6 October 2015
unfair for an employer to dismiss an employee simply because a third party demands so
Lebowa Platinum Mines Limited v Hill (1998) 18 ILJ 1112 (LAC)
Nape v INTCS Corporate Solutions (Pty) Limited (2010) 31 ILJ 2120
JS 44/12, JS 62/12
National Union of Metalworkers of South Africa and Others v DC Steel Construction (JS 44/12, JS 62/12) [2015] ZALCJHB 342 (6 October 2015)
It would therefore be permissible to retain employees for example, with a skill that is vital to the business of the employer despite their years of service, their production output and work record. This criteria is obviously subject to the proviso that it is fairly and objectively applied.
Van Rooyen & Others v Blue Financial Services (SA) Pty Ltd [2010] 10 BLLR 1119 (LC)
There is no basis to conclude that the selection criteria applied was not fair, objective, and justifiable and based on rational grounds
JS955/2011, JS54/2011
Ledwaba v BP Southern Africa (Pty) Ltd (JS955/2011, JS54/2011) [2015] ZALCJHB 255 (12 August 2015)
Restructuring employer adopting a new organogram employees invited to apply for new positions employee not appointed and subsequently retrenched new position not materially different from the previous one employee not offered available alternative position dismissal unfair.
South African Airways v Bogopa and Others (JA 36/05) [2007] ZALAC 10 (3 August 2007), at para 60
An employer may not dismiss an employee for operational requirements when such employer has a vacant position the duties of which the employee concerned can perform with or without at least minimal training []. Where the employer has a vacancy and the employee can perform the duties attached to that vacancy, the employer would be acting unfairly in dismissing the employee without offering the employee such a position and the ensuing dismissal would be without a fair reason.
If an employer can show that a good profit is to be made in accordance with sound economic rationale and it follows that fair process to retrench an employee as a result thereof it is entitled to retrench. When judging and evaluating an employers decision to retrench an employee this court must be cautious not to interfere in the legitimate business decisions taken by employers who are entitled to make a profit and who, in so doing, are entitled to restructure their business
Carephone (Pty) Ltd v Marcus NO and Others
The word fair introduces a comparator, that is, a reason which must be fair to both parties affected by the decision. The starting point is whether there is a commercial rationale for the decision. But, rather than take such justification at face value, a court is entitled to examine whether the particular decision has been taken in a manner which is also fair to the affected party, namely the employees to be retrenched. To this extent the court is entitled to enquire as to whether a reasonable basis exists on which the decision, including the proposed manner, to dismiss for operational requirements is predicated. Viewed accordingly, the test becomes less deferential and the court is entitled to examine the content of the reasons given by the employer, albeit that the enquiry is not directed to whether the reason offered is the one which would have been chosen by the court. Fairness, not correctness, is the mandated test.
General Food Industries Ltd v FAWU
.a company is entitled to insist by economic restructuring that a profitable centre becomes even more profitable
Adcock Ingram
Consultation in terms of section 189 of the Act, is a two-way process. No meaningful consultation can take place if one party withdraws from the process. There should also ultimately be finality in the consultation process. It cannot be held in abeyance by a party who insists that the process is not finalised when it is quite clear that the process had been.
JS 805/04
Khanyile and Others v Air Chefs (Pty) Ltd (JS 805/04) [2015] ZALCJHB 238 (4 August 2015)
NUM and Another v Black Mountain Mining (Pty) Ltd (CA22/2012) [2014] ZALAC 78 (10 December 2014) and at [37]
..An employer must first establish on a balance of probabilities that the dismissal of the employee contributed in a meaningful way to the realisation of that need. In my view, dismissals for operational requirements must be a measure of last resort, or at least fair under all of the circumstances. A dismissal can only be operationally justifiable on rational grounds if the dismissal is suitably linked to the achievement of the end goal for rational reasons. The selection of an employee for retrenchment can only be fair if regard is had to the employees personal circumstances and the effect that the dismissal will have on him or her compared to the benefit to the employer. This takes into account the principles that dismissal for an employee constitutes the proverbial death sentence.
South African Commercial Catering and Allied Workers Union (SACCAWU) and Others v Gallo Africa (JS1495/01) [2005] ZALC 93 (17 October 2005) at para 29.
Nhlamulo Ndhela v Sita Information Networking Computing BV (Incorporated in the Netherlands) CASE NO: JS 960/12
Section 189 of the LRA sits alongside a cluster of statutory rights which give practical meaning to the right not to be unfairly dismissed which is contained in section 185 of the LRA. Although crafted in procedural terms, the object of section 189 is substantive. It is aimed at the retention of jobs and if the jobs cannot be retained, at ensuring that any processes resulting in job losses are fair and the adverse effects of job losses are mitigated. In National Education Health and Allied Workers Union v University of Cape Town & Others, the Constitutional Court stated that the LRA must be interpreted in a manner which respects security of employment as a core value of the Constitution (Citations omitted)
Obligation not to dismiss if can be avoided; Measure of last resort
A substantively fair dismissal could not be transformed into a substantively unfair dismissal nearly by a finding of gross procedural unfairness.
If employer chose not to refer dispute at earliest permissible moment. If agreement was not reached in respect of the retrenchment and the dispute was referred for conciliation, it would have to hold off from issuing notices of termination for the period mentioned in s 64(1)(a).
Section 84(1) of the BCEA. As his employment after retirement was for less than a year he therefore was not entitled to severance pay in terms of s 41 of the BCEA. Employee not entitled to severance pay.
LIFO principle. Not only criterion. as it need to retain the best skills given the consolidated position that the respondent needed to fill.
Ignored the obligation to consult on the timing of the dismissal; ways to mitigate the adverse effects of the dismissals; and the severance pay for dismissed employees. Pay 12 months' compensation.
Agreement was in full and final settlement. He had a duty to enquire into the merits of the contention by the applicant that he had not waived his rights to challenge what he considered a retrenchment that did not accord with the law. There had been no consultation prior to the retrenchment and the applicant had been presented with a fait accompli.
Irvin & Johnson Ltd v CCMA (2006) 27 ILJ 935 (LAC)
There was therefore no evidence to prove that there was consultation on the selection criteria; that the employees knew and understood the selection criteria; that the selection criteria were fair and objective; the two respondents were fairly identified for retrenchment; that the two respondents did not apply for positions; and that the employees that were appointed to the respondents positions had more skills or more appropriate skills than the respondents
FIFO as a selection criterion could not be held to be fair and objective criterion
Refuce to apply
Failing to offer positions
the employer will resort to a dismissal as a measure of last resort. Such an obligation is understandable because dismissals based on operational requirements constitute so-called no-fault dismissals.
Employees to participate
Genuine justified, fair reason to dismiss
not included in consultation process
S189
Advise ee consultation was to avoid dismissal, minimize, reduce impact
No power to approve
Ultra Vires
As long as an employer was able to prove that the dominant purpose of the retrenchment route was the economic viability of the enterprise, the employer might well be entitled to utilize s 189.
predetermined email
rather poor performance
LIFO was the most objective and fair criterion to use; This criterion, however, need not be applied in those cases where its application could result in loss of skills or disrupt the business operations
189(3)(b) and s 189(3)(d)
189(3)(b)
197
Legal causation
would be established through an objective test of determining whether the strike was the main, dominant, prominent, or proximate likely cause of the dismissal.
factual causation enquiry
question whether the dismissal would have taken place but for the strike action
Where an employer consults in terms of a collective agreement with a majority union which requires it to consult with that union in the event of retrenchment, the employer has no obligation in law to consult with any other union nor with any individual employee
such as the alleged failure by the employer to apply fair selection criteria; its alleged failure to consider properly alternatives to retrenchment and the fairness of the severance package that they had been offered.
They are intertwined
J1114/07
Banks & Another v Coca-Cola of SA
one employee and only substantive fairness refer to arbitration
Disclose all info, to engage meaningfully
Duties of Facilitator
May not make rulings
189A(7)(b)(ii)
With reference to the decision of the LAC in Nehawu v University of Pretoria (2006) 5 BLLR 437, the court held that an employer may come to the consultation table with a predisposition towards a particular method of solving the problem which has given rise to the possibility of retrenchment.
the court found that the applicants decision to reject the offer of alternative employment had been taken precipitously and was unreasonable in all the circumstances. She was therefore not entitled to any severance pay.
The court confirmed that the consultation process entails a dual participatory role
Procedurally unfair
The court noted that in terms of sec 189A(13) read with (7)(b)(ii) and (8)(b)(ii)(bb), procedural fairness can only be challenged by way of motion proceedings. Quite plainly, the drafters of sec 189A had mass retrenchments in mind when introducing it into the Act. [They] could not have intended to non-suit individual employees from raising procedural fairness in trial proceedings, even if he or she had referred the aspect in terms of sec 189A of the Act. It would often be impractical to do so. There is no reason why the two aspects could not be heard simultaneously, particularly since the individual may not invoke strike action. See also Numsa & Others v SA Five Engineering [2005] 1 BLLR 53 (LC).
Held that this argument was incompatible with the judgment in Dudley v City of Cape Town ((2004) 25 ILJ 305 (LC)) and PSA obo Karriem v SAPS & Another (unreported C435/04) that there was no obligation on an employer, when contemplating retrenchments, to give preference to suitably qualified employees from a designated group. Held further that if the individual employee had no enforceable right under the EEA then no failure by the employer to consider its obligations under the Act could render a dismissal unfair
Court a quo favored a strict test as set out in BMD Knitting Mills (Pty) Ltd v SACTWU ((2001) 7 BLLR 795 (LAC)) and Nehawu & Others v The Agricultural Research Council & Others ((2000) 9 BLLR 1031 (LC); The Court held that the employer had failed to discharge its onus to establish the existence of a commercial rationale behind the retrenchments for operational requirements.
On appeal the Court noted that the employees were not retrenched because either Fauna or Forecourt were running at a loss but because Forecourt had decided to run the business in a different way. Further that an employer has the right to choose the manner in which he runs his business provided he respects the workers contracts of employment and obtains their consent or consults with their representatives in altering such contracts or contemplation of retrenchments for operational requirements. However it was also noted that it was unfair of an employer to choose a solution that entailed job losses if there was another solution which was viable.
different treatment of employees on retrenchment, without good cause, would result in an unfair dismissal i.t.o. Chapter VIII of the LRA
employer was obliged i.t.o. s189(7)(b) to use fair and objective criteria as contemplated in the Act. The company had conceded that the criteria of willingness and the interview were subjective and this portion comprised 20% of the criteria. They argued that 20% was insignificant and ought to be ignored. Held that this was not so and the selection criteria were therefore not fair and the dismissals were substantively unfair
After the meeting the three staff members concerned were summoned to individual meetings and given letters setting out the reasons for restructuring and terminating their employment as of 28 September 2001; the letters of dismissal were drafted prior to the meetings.
that the absence of a proper retrenchment process impacted on the substantive fairness of the dismissal because it excluded a discussion of the selection process.
the obligation to consult only arose when the employer contemplated dismissing employees for operational requirements, prior to which there was no such duty. Held that although the employer was inclined towards outsourcing this was not in conflict with s 189 of the Act.
LIFO and skills
this method is open to abuse. General Food Industries Ltd v Food and Allied Workers Union ((2004) ILJ 1655
employers misrepresentations and subsequent failure to disclose fully and timeously the selection criteria and how they were to be applied was in bad faith and unfair. Held further that they had failed to discharge their onus to prove the selection criteria were fair and fairly applied and that the dismissals were substantively fair.
D113/00
CEPPWAWU (o.b.o. Gumede) v Republican Press (Pty) Ltd
the car allowance, medical and pension benefits for one month for breach of contract under s 77(3) of the BCEA as read with s 195 of the LRA; the value of his share options and accrued profits as at 28 February 2003 ; one months pay as notice pay; the balance of his salary for June, July and November 2002 ; his salary for December 2002 and January 2003; two weeks severance pay ; the balance of his relocation allowances and his accrued leave pay ; twelve months compensation for unfair retrenchment
Frys Metals a distinction was drawn between a dismissal effected in order to compel employees to accept a demand in respect of a matter of mutual interest and a dismissal for operational requirements. Held that this dismissal did not fall under the definition of an automatically unfair dismissal contemplated by s. 187(1)(c)
Frys Metals (Pty) Ltd v NUMSA & Others (2003) 24 ILJ 133(LAC)
entry-level specification ; that the choice of an invalid assessment tool was unfair
that such dismissals be shown to have been a measure of last resort which could not be avoided
CWIU & Others v Algorax (Pty) Ltd (2003) 11 BLLR 1081(LAC)
submitted that the decision taken by the board in June 1999 was not final, but merely a provisional one; was no evidence that the decision of the board was not a final one and that therefore Enterprise Foods fell far short of the standard demanded by s.189 which requires bona fide consultation to precede a final decision to dismiss
the respondents accepted that there were justifiable economic reasons for closing the plant; there were objective reasons for the restructuring; which included job losses
that in signing the agreement and accepting payment the employee had settled any dispute between himself and the employer
retrench prior to consulting
Kotze v Rebel Discount Liquor Group (Pty) Ltd (2000) 21 ILJ 129 (LAC),
the employer had not only come to a general decision on the need to retrench prior to consulting with the employees, but even identified the specific employees to be dismissed
LC will not ordinarily interfere with decisions taken by employers where that decision was clearly and objectively in the best commercial interests of the business concerned
the first employee ought to have been placed in one of the new positions without an interview and that his dismissal was therefore substantively unfair
s41(4) of the BCEA
alternative employment may incorporate employment by the same employer in the same position but on terms and conditions of employment that differ either in some or in all respects with the terms and conditions of employment that applied to the employee before or at the time the offer was made. [22] It is the employment that is required to be alternative and not the position; where an employee accepts such new position he either enters into a new contract of employment or amends his existing contract; the employees rejection of that offer was unreasonable
employee had been placed on suspension for a long period
not conducted any interview and had placed far greater reliance on the test than was warranted
had not shown that the selection criteria were fair and that for this reason the dismissal was substantively unfair
Section 189(3) notice: that information in terms of this section must be given to the employee before the decision to dismiss is made in order for the employee to be able to participate meaningfully in the consultation process
the complete failure of the [employer] to provide any of the written information required by the LRA, the only conclusion that can be drawn is that the [employer] failed to follow a fair procedure
On the proposition that s189 prevents an employer from consulting with individual employees at any stage where there is a representative union, noted that bypassing a union undermines collective bargaining but held that if deadlock is reached with the union, and if the employer has in fact discharged all its consultation obligations with the union, I can see no reason why the employer should not be permitted to consult thereafter with the affected individuals
It creates a statutory minimum that has to be paid when an employee is dismissed for reasons based on the employers (sic) operational requirements. The only logical interpretation that can be given to the words at least in section 41(2) of the [BCEA] is that it should mean not less than
In a factory where employees perform more or less the same duties LIFO can be applied [between departments]. However, where there are different departments were (sic) persons perform different skills it is not always possible
bumping is situated within the LIFO principle. Longer serving employees have devoted a considerable part of their working lives to the company; is sufficient reason for them to remain and others to be retrenched
bumping should always take place horizontally before vertical bumping is resorted to; domino bumping; minimising the disruption to the employer; geographical limits to bumping ; independence of departments as separate business entities may be relevant
Court not to second guess employer but to decide whether the ultimate decision is "operationally and commercially justifiable on rational grounds"; (Carephone v Marcus)
posts being renamed; competency of employees;
desire to steamroll the retrenchment process' and irreconcilable with the obligation to engage in a process of meaningful consultation in the form that is required (Kotze v Rebel discount Liquor Group (2000) 21 ILJ 129 (LAC))
All affected employees should directly or indirectly be given opportunity to influence the employer's decision making process (Johnson & Johnson v CWIU)
S194 remove any need for evidence
No compensation awarded
Joint-problem solving process; Atlantis Diesel Engines v NUMSA (1994) 15 ILJ 1247 (A)
Length of service, prospects finding alternative position and financial position of employer are not relevant factors.
Forfeited
Employees were not consulted as contemplated by s 189 of the LRA. The respondent contended that it did not dismiss the employees at the end of December 2009 but their services automatically terminated in terms of specific provisions of their contracts of employment.
The court held that a contractual provision that provided for the automatic termination of the employment contract at the behest of a third party or external circumstances beyond the rights conferred to the employee in our labour laws, undermined an employee's rights to fair labour practices and was disallowed by labour market policies.
s 198A(8)
Because the notices of termination did not comply with the statutory requirements it axiomatically followed that the dismissals were invalid and of no force and effect, was wrong. Non-compliance with s 198A(8) not necessarily resulting in invalidity or nullity of dismissals.
still showed a preference for using contracting companies.
the deferential approach was no longer part of our law and dismissal for operational requirements had to be a measure of last resort, or at least fair under all the circumstances. A dismissal could only be operationally justifiable on rational grounds if the dismissal was suitably linked to the achievement of the end goal for rational reasons. Dismissals had to be a last resort and if they were not, that rendered them unfair.
Consultation must take place once the possible need is identified and before a final decision is made.
