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[1999] ZALAC 25
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Johann Lindenberg Kotze v Rebel Discount Liquor Group (Pty) Limited (CA3/98) [1999] ZALAC 25 (8 November 1999)
IN THE LABOUR APPEAL COURT OF
SOUTH AFRICA
HELD AT CAPE TOWN
CASE NO: CA 3/98
In
the matter between:
JOHANN LINDENBERG KOTZE
Appellant
and
REBEL DISCOUNT LIQUOR GROUP (PTY) LIMITED
Respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
MOGOENG
AJA
[1] The Appellant was employed by the Respondent
as the executive Director of National/Coastal Operations as at the
time of his retrenchment.
[2] The Respondent and Gilbeys Distillers and
Vintners (Pty) Ltd (AGDV@) are wholly owned subsidiaries of W &
A Gilbeys South
Africa (Pty) Ltd (AWAG@). GDV is engaged in the
production and wholesale trading of liquor whereas the Respondent is
engaged purely
in the liquor retail trade, with retail liquor stores
throughout the country.
[3] These companies (Athe Group@) are
essentially run as a single economic entity with common
directorship, financial inter-dependence
and a centralized human
resources directorate. Decisions regarding the day to day running of
the group are taken by the executive
committee (AExcom@) consisting
of the top directors of these three companies.
[4] Towards the end of 1992 the Respondent was
in serious financial difficulties and operated at a loss running
into millions of
rands. As a result, it embarked upon a cost-cutting
exercise which included the retrenchment of sixty employees at the
level of
store manager and below with effect from 28 February 1993.
[5] A senior management meeting was held during
the first two weeks of January 1993 at Craighall. At this meeting
the Group Chief
Executive Officer, Mr Peter Fleck, instructed each
director to reduce the budgeted overhead costs for the 1992/93
trading year
by a further 10%. Pursuant to this directive Mr Trevor
Pearman, the Managing Director of the Respondent, and the Appellant
identified
and agreed on areas where the appropriate cuts would be
made.
[6] Pearman and Mr Anton Erasmus, the Group
Human Resources Director, also reviewed the Respondent=s head office
structure and identified
the need to phase out the Appellant=s
position and divide his functions between Pearman and Mr Rob
Naysmith, the Respondent=s Marketing
Director. Consequently, Pearman
and Erasmus sought and obtained approval for their proposal from
Fleck and Excom.
[7] On 26 February 1993 a meeting took place
between Pearman and the Appellant. The Appellant was reminded of the
recessionary conditions
under which the Respondent had been trading
and the consequent enormous financial loss it had incurred. He was
told that it had
become necessary to retrench him. The Appellant was
upset by his treatment and reacted by saying A
youâre crazy
,
Iâm the only productive director in the company
@. It was
then that Pearman handed him two documents which the Appellant read
immediately. The one informed him about his retrenchment
(Aexhibit
H@) and the other was a staff notice announcing the Appellant=s
retrenchment (Aexhibit I@). Their discussion ended on
that note.
[8] The factual dispute between the parties was
whether the discussion was ended at the instance of Pearman or the
Appellant.
[9] Pearman summoned Erasmus to his office soon
after his discussion with the Appellant had ended. This sequence of
events was pre-arranged.
Erasmus=s role was to discuss the severance
package with the Appellant. The Appellant asked Erasmus why he, and
not Naysmith or
Mr Corrie Maloney ( the Inland Operations Director),
was retrenched. Erasmus informed him that the last in first out
(LIFO) principle
was used as a criterion to select him for
retrenchment. When the appellant pointed out that he became a
director long before Naysmith
and Maloney, Erasmus replied that they
had a longer service as employees.
[10] Erasmus handed to the Appellant a document
containing his proposed retrenchment package (Aexhibit J@). The
Appellant remarked
that it was generous.
[11] It is common cause that the Appellant was
unhappy with his retrenchment with the result that he decided to
take the matter
up with Fleck. He asked both Pearman and Erasmus to
withhold the staff notice announcing his retrenchment pending the
outcome of
his meeting with Fleck.
[12] About a week later Appellant met with
Fleck. He told Fleck that he was unhappy with his retrenchment and
reiterated that he
was the Respondent=s only productive director.
Fleck made it clear that he did not want to talk about his
retrenchment. He advised
the Appellant to see it as a challenge.
Appellant said he gave up hoping to avoid his retrenchment because
it was clear from Fleck=s
attitude that the Respondent was
determined to retrench him.
[13] Subsequent to this meeting with Fleck,
Appellant met with Pearman and Erasmus again. He made an
unsuccessful attempt to negotiate
a better severance package with
them.
[14] The following possibilities , none of which
materialized, were discussed in the meetings the Appellant held with
Pearman, Erasmus
and Fleck:-
(a) helping the Respondent on an
ad hoc
basis to negotiate its way out of certain leases and in disposing of
some of the Respondent=s properties;
(b) acting as a consultant to the Respondent;
(c) the sale of the Claremont liquor store to
the Appellant;
(d) coordinating franchising operations on the
Respondent=s behalf.
[15] The Appellant=s services were effectively
terminated on 31 March 1993.
[16] Thereafter he launched an application in
the Industrial Court in terms of section 46(9) of the Labour
Relations Act No. 28
of 1956 (Athe LRA@) on the basis that his
retrenchment constituted an unfair labour practice. I will only
mention those grounds
on which the Appellant still relies:
(a) the respondent presented the Appellant=s
retrenchment as an accomplished fact;
(b) there was no proper commercial rationale for
the termination of the Appellant=s services.
[17] The application was dismissed by the
Industrial Court. This appeal is against that determination and it
is based on the above
grounds. Those grounds require that the
principles governing a fair retrenchment process be revisited.
Fair
Retrenchment Process
[18] This process entails questions such as:
(i) how and when does retrenchment present
itself as an option;
(ii) why is it imperative that an employer
consults with employees and which employees have to be consulted;
(iii) what does the envisaged consultation
entail;
(iv) when is retrenchment justified;
(v) what is the court=s approach to the
determination of the fairness or otherwise of the retrenchment
process?
(a) At some stage management may perceive or
recognize that its business enterprise is ailing or failing,
consider the causes and
possible remedies, appreciate the need to
take remedial steps and identify retrenchment as a possible remedial
measure. See
Atlantis Diesel Engines (Pty) Ltd v National Union
of Metalworkers of SA (1994) 15 ILJ 1247 at 1252
F (Athe ADE
case@)
(b) Having foreseen the need for retrenchment,
and while still contemplating it, the duty to consult the employees
or their union
then arises. See
ADE case supra
at1252G
.
(c) Such consultation becomes an integral part
of the process leading to the final decision on whether or not
retrenchment is inescapable.
The need to consult before a final
decision is taken has its rationale in pragmatism, in principle and
now also in the Constitution.
(i) It is rooted in pragmatism because,
(aa) the main object must be to avoid
retrenchments altogether, alternatively to reduce the number of
dismissals and mitigate their
consequences;
(bb) consultation provides employees or their
union with a fair opportunity to make meaningful and effective
proposals relating
to the need for retrenchment or if such need is
accepted, the extent and implementation of the retrenchment process.
(ii) It satisfies principle because it gives
effect to the desire of employees, who may be affected, to be heard
and helps to avoid
or at least reduce industrial conflict. See
ADE
case at1253A.
(iii)
Section 23(1) of the Constitution
of the Republic of South Africa Act No. 108 of 1996 provides that
>everyone has the right to
fair labour practices.=
This
entrenched fundamental right is a further basis for the need to
consult. See
SA Clothing & Textile
Workers Union & Others v Discreto- A Division of Trump &
Springbok Holdings (1998) 19 ILJ 1451
(LAC) at 1454G-H (the Discreto
Case)
.
(d) Implicit in the requirement of a fair
opportunity to make meaningful proposals is the duty to give
employees reasonable notice
of the proposed retrenchment. Such
notice must allow them time and space to absorb the shock brought
about by the daunting prospect
of losing their jobs. As a general
proposition, no employee can reasonably be expected to
constructively and effectively engage
the employer on such a serious
matter from the very minute the bad news is broken to him or her. He
or she must be afforded the
opportunity to come to terms with the
situation, to reflect on the matter, to seek advice and prepare for
consultation and only
then can a fair and genuine consultation
begin. What constitutes such reasonable time would depend on the
circumstances of each
case.
(e) A fair retrenchment process imposes an
obligation on the employer to disclose to the employees all relevant
information and
that obligation has since been codified in the terms
set out in section 189(3) of the Labour Relations Act No. 66 of 1995
(>the
Act=).
(f) The duty to engage in meaningful and genuine
consultations is owed to all employees from the lowest to the
executive level.
(g) The process=s fairness to the employer finds
expression in the recognition of its prerogative to make the final
decision to
retrench. ( See
ADE
case at
1252H
and
Discreto at 1454H
).
(h) 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. (
Discreto
at 1454I-J)
.
(i) The function of the court in scrutinising
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. (See
Disreto at 1454J-1455A-C
).
I turn now to consider the procedural and the
substantive fairness of the Appellant=s retrenchment.
Procedural
Fairness
[19] Mr Rogers, for the Appellant, submitted
that the question before us is not whether the Respondent had made
an immutable decision
when its intention to retrench the Appellant
was conveyed to him, but rather, whether the Respondent went further
along the way
in making the decision to retrench the Appellant than
it was entitled to go before consulting with him. He further
submitted that
if this question is answered in the affirmative, then
the Appellant=s dismissal is at least procedurally unfair. Mr Gamble
on the
other hand submitted that the retrenchment of the Appellant
must be found to be procedurally fair because:-
(a) The Appellant never complained to any of
the officials he held meetings with about the alleged unfairness of
his retrenchment.
He therefore acquiesced in the fairness of the
process.
(b) He is an experienced businessman with a
strong personality who could not have remained silent in the face of
an injustice or
unfairness.
(c) Having regard to the Appellant=s litigation
with his previous employer, he would have approached an attorney for
advice sooner,
had he thought that the process was unfair.
(d) The Appellant was an executive director and
he recognised that knocking out his position and LIFO made sense.
(e) The fact that the Appellant approached
Fleck after his meeting with Pearman and Erasmus shows that he did
not believe the decision
to be immutable.
These submissions will be dealt with hereinafter
without necessarily individualising them. I intend adopting a more
general approach
which will have the effect of addressing all of
them.
[20] The Appellant was told about the
Respondent=s intention to retrench him, for the first time, on 26
February 1993. A few minutes
later, Pearman presented him with
exhibit AH@ which is not dated but was signed by Pearman. This is an
extract from it:
AIt is with regret that I have to
inform you of our intention to retrench the position of
Operations/Coastal Director.
.............................................................................................................................
Your retrenchment package will be
discussed on Friday 26 February 1993 with Anton Erasmus and will, I
trust, be to your best interests.
Johann, I am sorry to have to give
you such news and assure you that, should a suitable vacancy within
the W&A Gilbeys Group
occur, you will be considered.
All the best with your future
plans.@
[21] The first paragraph encapsulates the
intention to retrench the Appellant. The second and third
paragraphs, which I have omitted
from the above quotation, deal with
the Respondent=s trading and financial difficulties which made
retrenchment necessary. The
paragraphs following seem to be premised
on the assumption that the retrenchment of the Appellant will be or
would have been accepted
when exhibit AH@ is presented to the
Appellant. These paragraphs do not seem to leave room for the
decision to retrench the Appellant
being changed. What remained to
be discussed appeared to be the retrenchment package. This view
finds support in the paragraph
that assures him that he would be
considered should a suitable vacancy become available within the
group. It is also fortified
by the statement wishing him all the
best with his future plans. In other words, the Respondent was then
considered, by the author,
to be the Appellant=s past. The Appellant
contended that exhibit AH@ proves not only that the Respondent had
no intention to consult
him about his retrenchment but also that his
retrenchment was presented to him as an accomplished fact. On the
other hand, Pearman
and Erasmus testified that exhibit AH@ was only
meant to initiate the consultation process and to confirm the
discussion between
the Appellant and Pearman. It is imperative,
therefore, to examine this exhibit in its proper setting and context
so that its true
meaning and purpose can be established.
[22] Pearman, Erasmus, Fleck and Excom devised a
three-stage strategy for the retrenchment of the Appellant. The
first stage was
an ice-breaker meeting between the Appellant and
Pearman. The purpose of this meeting would be to break the bad news
to the Appellant
so that his frustration and state of shock would be
at a low ebb when the second phase of the consultative process
kicked in. The
second stage was intended to assume the form of
discussions after which exhibit AH@ would be handed to the
Appellant. Mr Rogers,
submitted that exhibit AH@ encapsulates the
Respondent=s final position on the Appellant=s retrenchment. It is
the purpose it was
meant to serve when it was written and when it
was presented to the Appellant notwithstanding the fact that the
first meeting was
never held.
[23] There is nothing in the exhibit which hints
at the possibility of any further discussions on the merits of the
Appellant=s
retrenchment. This creates the impression that the door
was closed to such discussions. The Appellant said that Pearman and
Erasmus
were not keen to consult on the merits of his retrenchment
but were rather keen to discuss the severance package. Pearman,
Erasmus
and the Appellant said that some alternatives to
retrenchment were discussed on 26 February. Those so-called
alternatives were
the possibility of the Appellant assisting in the
sale of the Respondent=s unwanted property, negotiating the
Respondent=s way
out of some lease agreements on an
ad hoc
basis, pioneering the franchising of the Respondent=s operations at
a commission and buying the Claremont liquor store from the
Respondent as a franchise on a Asoft@ loan from the Respondent.
These are, in my view, not alternatives to the Appellant=s
retrenchment.
On the contrary, they all have as a condition
precedent, the Appellant=s retrenchment. They are measures intended
to soften the
blow of retrenchment and are package-related. Thus
far, it appears that the Respondent had concentrated its efforts on
discussing
the package and was not keen to deal with the merits.
[24] Exhibit AI@ also helps to put exhibit AH@
and the meeting of 26 February in its proper perspective. It is a
staff notice dated
26 February 1993 signed by Pearman and reads as
follows:
A The position of
Operations/Coastal Director Rebel has been withdrawn with effect
[from] 1 April 1993. Johann Kotze will accordingly
be retrenched
from that date.
..............................................................................................................................
I trust you will wish Johann well
with his future plans and give him and his family the support that
is needed at this time.@
[25] As I said, this staff notice bears the same
date on which the Appellant was told, for the first time, that his
job was on the
line. It could not have been a draft because it was
already signed by Pearman. This notice betrays the real purpose of
the meeting
of 26 February 1993. Staff members were about to be
notified that the Appellant=s position >has been withdrawn with
effect [from]
1 April 1993' and that he >will accordingly be
retrenched.= But for the Appellant=s intervention it would in all
likelihood
have been pinned to the notice board on the same day.
This exhibit, therefore, seems to support the Appellant=s allegation
that
his retrenchment was a foregone conclusion before he was told
about it.
[26] According to both Pearman and Erasmus the
Appellant was shocked by the possibility of his retrenchment.
Appellant also said
that he was devastated. It was in the heat of
this frustration and extreme shock that exhibits AH@, AI@ and@J@
were presented to
him. The nature of the news, the exhibits and the
reaction of the Appellant to the above strongly suggest that he was
incapable
of rational thinking during the meeting of 26 February.
Meaningful and constructive discussions could not reasonably be
expected
to take place in such an emotional and tense atmosphere.
[27] The Appellant contended that Pearman put an
abrupt end to their discussion whereas Pearman blamed it on him. On
the other hand
Mr Gamble, for the Respondent, argued that on the
probabilities it was the Appellant who did, regard being had to the
fact that
the Appellant:-
1. had little or no regard for Pearman and would
rather discuss the matter with Fleck;
2. saw himself as the heir-apparent to Pearman=s
position and believed that Pearman was threatened by his
capabilities and therefore
wanted to get rid of him; and
3. believed that the decision to retrench him
was immutable.
There is substance in this submission but only
if one ignores the fact that Pearman was a bad witness who lied
about the retrenchment
of Schungh and Cook and the nature and
contents of exhibits AH@, AI@ and AJ@. These exhibits suggest that
the Respondent was not
keen to discuss the merits of the
retrenchment. The generous package was in all likelihood designed
to cajole the Appellant into
accepting his retrenchment without a
murmur. But even if the consultation was stopped by the Appellant it
would make no difference
to the fairness of the process of
consultation. It will take an employee with an extraordinary
personality and resilience to consult
effectively under similar
circumstances and the Appellant=s frustration and shock suggests
that he was not such an employee.
[28] Appellant testified that he realized from
his discussions with Pearman and Erasmus that they were not prepared
to discuss the
merits of his retrenchment, that they were only
prepared to discuss his package and were hellbent on relieving him
of his job.
It was for this reason that he asked for a meeting with
Fleck. Fleck also refused to discuss his selection and the merits of
his
retrenchment but confined their discussion to the package. Fleck
did not testify and there is no evidence to contradict the
Appellant=s
version. Therefore, it must stand.
[29] It is common cause that the Respondent
recruited the Appellant because of his special negotiating skills,
his expertise in
the liquor retail trade and his capacity to turn
around the ailing Respondent. To this end, he acquitted himself
well. It was admitted
by both Pearman and Erasmus that he was a more
experienced and better director than Maloney and that they did
consider offering
him Maloney=s position as an alternative to his
retrenchment. However this was not disclosed to him and the merits
and demerits
of such a move were not discussed with him. They
believed that he would reject this alternative. The correct legal
position is
that alternatives must still be disclosed even if the
employer believes that they are likely to be rejected, (
see Eyre
v Hough t/a Miller Eyre Travel (1999) 20 ILJ 1047 (LC) at
1052-3
).This position holds even if the employer believes that
the employee=s fate is sealed and that such consultation would be
fruitless.
After all the no difference rule is not part of our law,
(see
Whall v Brandadd Marketing (Pty) Ltd (1999) 20 ILJ 1314 (LC)
at 1321A-B
). Had the Respondent approached the Appellant with an
open mind, the alternative would have been raised and seriously
considered.
[31] Instead of disclosing and consulting on the
alternative to the Appellant=s retrenchment, the Respondent was
over-zealous to
reach an agreement on the retrenchment package. This
is a wrong and undesirable procedure. (
Vickers v Aquahydro
Projects (Pty) Ltd (1999) 20 ILJ 1308 (LC) at 1312A-C
;
Bank
of Lisbon International v Pinheiro (1998) 19 ILJ 549 (LAC)
(APinheiro@) at 553E-F
). Logically, alternatives to retrenchment
should be discussed before the terms of the retrenchment package
(
Pinheiro at 554C
). Only when retrenchment is accepted or
when consultation has taken place but no agreement can be reached
may the package be discussed.
[32] As Mr Rogers correctly pointed out, the
fact that the Appellant was an executive
employee does not exempt an employer
from the duty to observe the
audi alteram
partem
rule. After all,
being an executive employee simply suggests that such an
employee is privy to more information relevant
to his or her retrenchment than is the case with a lowly placed
employee. He or she
is, therefore, enabled by that information to
consult from a position of some power. The need to consult fairly on
alternatives
and all other issues which an employee is entitled to
be consulted about extends to him or her. Furthermore, there should
be consultation
specifically about the need to retrench at a senior
executive level even if the need to retrench in general is common
cause. This
position provides an answer to Mr Gambleâs
abovementioned submissions.
[33] The fact that the Appellant was not given
the opportunity to recover from the shocking news before the
consultation, that he
was presented with the three exhibits almost
simultaneously, that the exhibits were prepared at the same time,
and that the respondent
was not prepared to discuss any real
alternatives to retrenchment, are consistent with the desire to
steamroll the retrenchment
process and irreconcilable with the
intention to consult meaningfully and constructively.
[34] The savings arising from the Appellant=s
retrenchment were reflected in the report to the holding company in
London some time
before the actual retrenchment of the Appellant.
This further reinforces Mr Rogers=s submission, with which I agree,
that the Respondent
went further on the way in making the decision
to retrench the Appellant than it was entitled to go before
consulting him. I am
therefore satisfied that the Appellant=s
retrenchment was procedurally unfair.
Commercial
Rationale
[35] It is common cause that the Respondent was
trading under difficult and recessionary conditions as at the time
of the Appellant=s
retrenchment. This state of affairs is borne out
by the profit losses which ran into millions of rands over a period
of two successive
financial/trading years. Having perceived this
situation the Appellant identified and suggested the retrenchment of
employees from
the level of store manager and below as the
appropriate remedial measure. His suggestion was endorsed by the top
management of
the Respondent. The Appellant was charged with the
responsibility to identify thirty of the sixty employees to be
retrenched at
the beginning of 1993 and he carried out that
responsibility. Furthermore, the Appellant admitted under
cross-examination that
retrenchment in general was a necessary and
fair option as at January 1993. He also admitted that as a matter of
business planning
or commercial rationale retrenchment was a fair
decision to make as at the beginning of 1993. He only had
reservations about retrenchment
in so far as it affected employees
at the executive level.
[36] I have considered Mr Rogers=s submission
that there should have been a moratorium on salary raises, bonuses,
promotions etc
as an alternative cost-cutting measure to the
Appellant=s retrenchment. This suggestion effectively ignores that
the subject was
previously raised with top management and rejected
because of its potentially demoralizing effect on employees. The
Appellant had
also suggested that the GDV throughput policy, which
required of the Respondent to give prominence to the GDV products in
its trading,
be abandoned. He believed that such a move would
improve the Respondent=s trading and therefore its profitability.
This suggestion
was also
previously discussed with the top management
and it was rejected. These so-called alternatives do not only fly in
the face of the
Appellant=s own admission that retrenchment was fair
and necessary but also the correct approach that this Court has to
adopt in
scrutinizing the consultation process. The Appellant now
wants this Court to second-guess the commercial and business
efficacy
of the employer=s decision to retrench. He also wants us to
decide whether the employer made the best decision under the
circumstances.
This we cannot do. 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. In the present case, I am
satisfied that there was a genuine commercial rationale for a
staff
reduction.
The
Effect of Failure to Consult on Existing Alternatives, on
Compensation
[37] The failure to consult the Appellant on
known alternatives does not affect or detract from the existence of
a valid or genuine
commercial rationale for retrenchment. It only
affects his selection. The selection of an employee for retrenchment
does not only
impact on the procedural purpose of consultation but
also on its substantive purpose. This is so because failure to
consult on
known alternatives leaves open a possibility that the
affected employee might, contrary to the employerâs belief, have
accepted
the undisclosed alternative to his or her retrenchment. If
he or she would have, then it follows that he or she would not have
been retrenched and the decision to retrench him or her would
therefore be both procedurally and substantively unfair
notwithstanding
the existence of a genuine business rationale
therefor.
[38] Therefore, it is necessary to consider the
impact on compensation of the Respondent=s failure to consult with
the Appellant
on the alternatives to his retrenchment. As I said
above, the Respondent did consider the possibility of offering
Maloney=s position
to the Appellant. The only reason why it thought
that this option was not viable , was that the Appellant had, some
two years before,
expressed his unwillingness to move to the
Transvaal which is where he would have to go if he was to be
transferred to that position.
Otherwise it is an alternative that
the Respondent would have seriously considered had it thought that
the Appellant would accept
it. A possibility exists that faced with
the choice between losing his job or moving to the Transvaal, the
Appellant may well have
opted for a transfer. The Respondent should,
therefore, have given the Appellant the opportunity to persuade it
to retain his services
as Inland Director and to retrench Maloney
instead. (See Pinheiro at 555A-G ). The fact that the Respondent was
entitled to use
the LIFO principle does not detract from the
importance of consultation on the alternatives including those which
are likely to
be rejected.
[40] I am, therefore, of the view that had
proper consultations been held, the Appellant might have remained in
the employ of the
Respondent at least until 3 March 1995 which is
the effective date of Maloney=s retrenchment.(Pinheiro at 555G-H).
This is one
of the factors to be taken into account in dealing with
the question of compensation.
In the result I make the following order:-
1. The appeal is upheld with costs;
2. The determination made by the Industrial
Court is set aside and substituted with the following:
A(i) The Applicant=s retrenchment was
procedurally unfair and thereby constituted an unfair labour
practice.
(ii) There will be no order as to costs.@
3. The Respondent is to pay the costs of the
preliminary application.
4. This matter is remitted to the Industrial
Court to determine the issue of compensation.
________________
MOGOENG AJA
25