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[1999] ZALAC 41
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Kotze v Rebel Discount Liquor Group (Pty) Limited (CA3/98) [1999] ZALAC 41; [2000] 2 BLLR 138 (LAC); (2000) 21 ILJ 129 (LAC) (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 (
A
GDV
@
)
are wholly owned subsidiaries of W & A Gilbeys South Africa (Pty)
Ltd (
A
WAG
@
).
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 (
A
the
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 (
A
Excom
@
)
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
(
A
exhibit H
@
)
and the other was a staff notice announcing the Appellant
=
s
retrenchment (
A
exhibit 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 (
A
exhibit
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 (
A
the
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 (
A
the
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
A
H
@
which is not dated but was signed by Pearman. This is an extract from
it:
A
It
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
A
H
@
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
A
H
@
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
A
H
@
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
A
H
@
would be handed to the Appellant. Mr Rogers, submitted that exhibit
A
H
@
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
A
soft
@
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
A
I
@
also helps to put exhibit
A
H
@
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
A
H
@
,
A
I
@
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
A
H
@
,
A
I
@
and
A
J
@
.
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) (
A
Pinheiro
@
)
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
Date of Judgment: 8 November 1999