|The factual context from which this judgment arises concerns the substantive fairness of a retrenchment dispute. In this action, Mark Anthony Sampson (“the Employee”) challenged the substantive fairness of his dismissal, asserting that it was not effected in accordance with section 189 of the LRA.
Truvelo Manufacturers (Pty) Ltd (the “Employer”) commenced a retrenchment process by calling a meeting with its employees in the Armoury Division. The Employer duly dispatched section 189(3) notices in terms of the LRA to all its employees.
The Court, when considering the factual matrix was guided by the sentiment elucidated in SA Clothing and Textile Workers Union and Others v Discreto, wherethe Labour Appeal Court (LAC) held as follows:
“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 employer’s ultimate decision.”
At the heart of the Employee’s disputations was that there were alternatives to retrenchments. The Employee contended that the Employer failed to consider the implications of the retrenchment, as well as exploring viable alternatives.
|In light of the meaningful consultation process envisaged by the LRA, the Court found that the Employer had left much to be desired.
The court held that the Employer had failed to engage in a meaningful consultation process and concluded that viable options short of retrenchment had not been considered.
In essence, the Employer failed to apply the selection criteria fairly, there was no proper consideration of alterative positions, the Employer was cognisant of the applicable legal requirements which culminated in the dismissal of the Employee being substantively unfair.
In light of the above, the court granted a just and equitable award to the Employee, being equivalent to 12 months’ salary.
|This judgement highlights that there are numerous substantive hurdles which an employer must consider when embarking on retrenchment action. It further illustrates that if employers fail to adhere to these stipulations, employers will be punished by the court. The judgment underscored the detrimental effect retrenchments have socially and economically and one gets an indication of the severity with which employers will be dealt with if they attempt to avoid the stipulated parameters of S189 of the LRA.|
Written by John Mackechnie and supervised by Omphile Boikanyo