Using case law to fight unfair retrenchment
The first challenge in the case of the alleged unfair retrenchment of Jan Badenhorst by Southern Star Engineering, was to get condonation for the late submission of the dispute certificate.
The certificate was filed four years after it was meant to be filed – 10 days is the normal limit! The second was to research case law to substantiate his claim. Booysen Mashego details the case law that he used to argue the case successfully.
Our case centered around Section 188(1) (a) (ii) which imposes an onus upon the employer to show that when an employee is retrenched for operational requirements, that there was a fair reason to do so.
Thus, the onus is on the employer to prove valid economic reasons for dismissal. Heigers v. UPC Retail Services [1998] 1 BLLR 45 (LC), at 48HThe employer must also prove that the reason for dismissal was for operational reasons as defined; that the requirements of the Act were followed; and that the dismissal was for a fair reason.Sacwu & others v. Afrox Ltd [1999] 10 BLLR 1005 (LAC), at paragraph 38The employer must, on balance of probabilities, prove the following: * The cause or reason for the dismissal; * The defined operational requirements that the dismissal was based on; * A fair procedure in accordance with section 189 of the Act; and* The facts upon which a finding of a substantively fair reason for the dismissal can be made.Sacwu & Others v. Afrox Ltd [1999] 10 BLLR 1005 (LAC), at paragraph 38.
The employer failed to provide employees with adequate information and explanation of why their particular positions were declared redundant and hence the retrenchment is unfair.Fawu & Another v. National Sorghum Breweries [1997] 11 BUR 1410 (LC), 1422G – 1423FFounding Affidavit, paragraphs 19.2.1 and 19.2.3On substantive fairness, the employer is required to show that retrenchment of an employee is an action of last resort.
The employer failed to prove that there were no other feasible alternatives to retrenchment.Manyaka v. Van De Watering Engineering (Pty) Ltd [1997] 11 BLLR 1458 (LC), at 1463J – 1465CKotze v. Rebel Discount Liquor Group (Pty) Ltd [2000] 2 BLLR 138 (LAC), paragraphs 37 and 38Nehawu & others v. The Agriculture Research Council & others [2000] 9 BLLR 1081 (LC), paragraph 27The Company could not prove that: * the dismissal was for operational reasons as defined; * the requirements of the Act were followed; and * the dismissal was for a fair reason.Hence, the Court declared that the dismissal was both substantively and procedurally unfair.
Badenhorst was compensated with an amount of more than R54 000.We further argued that the company failed to consult on several issues, including the issue of the severance package.
Further that an employer must give employee parties and or relevant parties opportunities to consult on all matters mentioned in the Act before dismissing employees.
Where the employer fails to do so and does not give the relevant parties opportunity to consult on issues like severance pay (as the respondent did in the present circumstances) the dismissal is unfair.
CWIU v. Johnson & Johnson (Pty) Ltd [1997] 9 BLLR 1186 (LC), at 1198 – 1208Whall v. Brand add Marketing (Pty) Ltd [1999] 6 BLLR 626 (LC), at paragraphs 11, 19 and 25 The Company unilaterally offered severance packages to the employees after the process of consultation had commenced.
It is unfair for the employer to unilaterally offer severance packages after the process of consultation had commenced.SATU v. Press Corporation of SA Ltd [1998 11 BLLR 1173 (LC), at 1185C / 1187BThe Company misconstrued the purpose of the consultation.
One of the purposes of the consultation is to give affected employees the opportunity to suggest alternatives to the employer’s proposal. Due to the failure on the part of the Company to consult properly, the final decision taken by the Company was not based on consensus.
The final decision is and must be informed by what transpires during consultation. Where there had been no consultation on some of the issues, the obvious conclusion is that the Company unilaterally took the final decisions on such issues contrary to the provisions of the Act.Kotze v Rebel Discount Liquor Group (Pty) Ltd [2000] 2 BLLR 138 (LAC), at paragraph 18
As the head of Legal Department I must commend Ncumisa James for her sterling performance to call head office and tell us about this matter which was left unattended from 2004 till 2007.
The success of operation Mababuyiselwe is a collective effort on the part of the employee and the Regional Legal officer (s) .
Booysen Mashego is the head of Numsa's legal department
Briefs:If you are a manager or in a position of seniority, watch your step outside your workplace!
The general rule is that an employee cannot be held accountable for transgressions committed outside the workplace after hours.However, in any rule there are exceptions.
The company must prove that there is a connection between the employee’s conduct and the nature of business of the employer.The position of the employee must also be taken into cognizance.
A person who occupies a position of seniority should be treated differently from a person who does not have underlings.
A manager who manages staff members should be held responsible for transgressions occurring outside his workplace, because he should lead by example at all times.
The case of Visser and Woolworths (2005) 14 CCMA 8.8.2 supported this rule.So too did Nehawu obo Burne v/s Department of Foreign Affairs. Mr Burne worked in the South African High Commission in London, and he sexually harassed, hurled insult at cabin crew and overstepped safety rules.
France Ntuli
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Numsa News