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[2017] ZALAC 63
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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)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case no: CA 16/2016
LC case no C285/2014
In
the matter between:
SOUTH
AFRICAN BREWERIES (PTY) LTD
Appellant
and
LOUW,
RUDOLPH
STEPHANUS
Respondent
Held:
29 August 2017
Delivered:
24 October 2017
Coram: Coppin,
Sutherland JJA and Savage AJA
JUDGMENT
SUTHERLAND
JA
Introduction
[1]
The
respondent (Louw) was employed by the appellant (SAB) as the Sales
Manager, Southern Cape Region, based in George. Owing to
a
restructuring of the business in the Eastern Cape, among other
changes, Louw’s post became redundant. The functions formerly
performed by him in the sales field were subsumed into a newly
created post of an “area manager”, based in George.
The
new post embraced other management functions in addition to managing
sales. It included operations, which functions were to
be integrated
with sales in the new business model. The new post was also pitched
at a higher level of management, as determined
on the Hay job grading
system. SAB invoked section 189 of the Labour Relations Act 66 of
1995 (LRA) when the planning for a wide-ranging
restructuring
programme identified his post for abolition and absorption into the
new post. Eventually, when Louw was retrenched,
he was aggrieved and
a trial took place into an alleged unfair retrenchment. The Labour
Court found he was unfairly retrenched
and reinstated him
retrospectively. The appeal lies against that order.
[2]
Two
distinct controversies arise for decision:
2.1.
First,
whether the court
a
quo
could legitimately make the critical factual findings underpinning
its conclusion that the retrenchment was both substantively
and
procedurally unfair, given that those critical factual issues were,
so it was argued, neither pleaded nor encapsulated in the
narrowed
down terms of a pre-trial conference minute.
2.2.
Second,
whether the critical findings of the court
a
quo
could correctly be made on the evidence adduced and, upon the proper
application to those facts, of the norms enshrined in section
189 of
the LRA.
[3]
These
two controversies are addressed discretely. We hold that the first
controversy must be decided in favour of the appellant,
and that,
axiomatically, is dispositive of the fate of order sought to be set
aside. Nonetheless, the controversies in the second
issue raise
questions that it is appropriate to address because it appears that
certain conceptual confusions exist about the proper
application of
section 189 to the notions of selection criteria for dismissal and
the scope for legitimate and fair alternatives
that an employer might
propose. On the second controversy, we have also found in favour of
the appellant. As a result, a peripheral
matter about the propriety
of reinstatement, the subject matter of a last minute unopposed
amendment at the outset of the trial,
does not require attention in
this judgment.
The First Controversy:
The necessary discipline of orderly litigation
[4]
To
state the obvious, litigation is complex. Among the duties of legal
practitioners is to conduct cases in a manner that is coherent,
free
from ambiguity and free from prolixity. True enough, the holy grail
of translating what is complex into simplicity is not
always
attainable, but the ground rules are irrefrangible: say what you
mean, mean what say and never hide a part of the case by
a resort to
linguistic obscurities. The norm of a fair trial means each side
being given unambiguous warning of the case they are
to meet.
Moreover, these requirements are not mere civilities as between
adversaries; the court too, is dependent upon the fruits
of clarity
and certainty to know what question is to be decided and to be
presented only with admissible evidence that is relevant
to that
question. Making up one’s case as you go along is an anathema
to orderly litigation and cannot be tolerated by a
court. Counsel’s
duty of diligence demands an approach to litigation which best
assists a court to decide questions and no
compromise is appropriate.
[5]
The
critical complaint in this matter is that the court
a
quo
decided the case on factual issues not properly put before it on the
pleadings, nor as refined in the pre-trial conference minute.
The
complaint had been raised during the hearing and in argument at the
conclusion of the trial, considered by the court
a
quo
and dismissed. In our view, the complaint is justified and the court
a
quo
was in error.
[6]
The
two key findings of the court
a
quo
are these:
6.1.
The
retrenchment was substantively unfair because Louw should have been
appointed to the vacant post of area manager, based in Aliwal
North,
which would have discharged the employer’s obligation to
exhaust all reasonable measures to avoid a dismissal.
6.2.
The
retrenchment was procedurally unfair because objectively unfair
selection criteria were chosen; in particular, that the past
performance ratings of the candidates interviewed to fill the newly
created post of area manager, based in George, were used, and
Louw
did not accept that his own rating as “2” was correct or
fair, which factor prejudiced his prospects of selection.
[7]
Counsel
for Louw, in the appeal, when invited to trace the thread back from
these findings to the pre-trial conference minute and
further back to
the pleadings, properly acknowledged that there were no express
allusions that could be invoked. Indeed, she was
driven to invoke the
mantra expressed in the statement of claim where Louw averred his
dismissal was both “procedurally and
substantively unfair”,
that this foundation had not been abandoned and was thus the
“legitimising” peg upon which
hang the findings. In our
view, this stock phrase is hardly ever useful in communicating what
exactly is the
causa
of the unfairness, which is what both court and counsel need to know
in order to address it.
[8]
The
relationship between the pleadings and the pre-trial conference
minute has been the subject of several judicial pronouncements.
[1]
In short, a minute of this sort is an agreement from which one cannot
unilaterally resile. Also, a pleading binds the pleader,
subject only
to the allowing of an amendment, either by agreement with the
adversary, or with the leave of the court. The case
pleaded cannot be
changed or expanded by the terms of a minute; if it does, it is
necessary that that change go hand in hand with
a necessary
amendment. The chief objective of the pre-trial conference is to
agree on limiting the issues that go to trial. Properly
applied, a
typical minute – cum – agreement will shrink the scope of
the issues to be advanced by the litigants. This
means,
axiomatically, that a litigant cannot fall back on the broader terms
of the pleadings to evade the narrowing effect of the
terms of a
minute. A minute, quite properly, may contradict the pleadings, by,
for example, the giving an admission which replaces
an earlier
denial. When, such as in the typical retrenchment case, there are a
potential plethora of facts, issues and sub-issues,
by the time the
pre-trial conference is convened, counsel for the respective
litigants have to make choices about the ground upon
which they want
to contest the case. There is no room for any sleight of hand, or
clever nuanced or contorted interpretations of
the terms of the
minute or of the pleadings to sneak back in what has been excluded by
the terms of a minute. The trimmed down
issues alone may be
legitimately advanced. Necessarily, therefore, the strategic choices
made in a pre-trial conference need to
be carefully thought through,
seriously made, and scrupulously adhered to. It is not open to a
court to undo the laces of the strait-jacket
into which the litigants
have confined themselves.
[9]
A
reading of the relevant passages in the pleadings and pre-trial
conference minute reveal the following (tautologous material and
other irrelevancies are omitted):
Statement
of Case
9.1.
The
statement of case was crafted in bland terms.
9.2.
It
identifies Louw as having been employed by SAB for 11 years, latterly
in the post of sales manager, Cape Southern Region, which
covered
George and Knysna.
9.3.
In
2013, a restructuring exercise took place over some time. Insofar
that process was of any interest to Louw, he was alerted on
18
September 2013 that the sales manager posts based in George and in
Aliwal North had been identified for redundancy. Apparently,
the
Aliwal North, sales manager post was in any event vacant when the
restructuring exercise began.
9.4.
As
part of an envisaged new structure, new posts would be created called
“area Managers” in George and in Aliwal North
which would
incorporate the sales managerial function.
9.5.
Louw
averred:
9.5.1.
That
he was “already attending to the responsibilities of the
proposed area manager [ie George]”;
9.5.2.
That
he was treated unfairly in his recent performance review.
9.5.3.
That
he applied for the [George] area manager post “in good faith”
and the invitation to him to do so was a sham.
9.5.4.
That
after 4 November [by which time he had not succeeded in getting the
[George] area manager job], he “was not presented
with any
development opportunities, and….was also not presented with
any of the alleged “various other recruitment
and redeployment
opportunities’” alluded to by Theresa Davidson, his
immediate superior.
9.5.5.
That,
hence, his dismissal was procedurally and substantively unfair.
Statement
of Defence
9.6.
The
statement of defence averred:
9.6.1.
The
usual consultations were held.
[2]
9.6.2.
Louw
was assured that the redundancy of his sales manager post was not
based on his personal performance.
9.6.3.
Louw
applied for the new area manager post based in George, was
interviewed with two other candidates, but was not chosen to fill
the
post.
9.6.4.
After
that, other potential opportunities were put to him for
consideration; however, he declined what was on offer and on 13
November,
agreed with Cate Band, the HR manager, that they “saw
no further suitable alternatives”, whereupon he was retrenched.
The
Minute
9.7.
The
parties then met at a pre-trial conference and recorded, insofar
relevant to the controversy, in their minute:
9.7.1.
That
it was common cause that on 4 and 13 November 2013, Louw and Band
were in contact and that Louw initially said he was considering
other
redeployment opportunities but after considering them “neither
[Louw] nor Band saw further suitable alternative positions”.
9.7.2.
That
the court had to decide “whether the dismissal…was
procedurally and substantively fair”.
9.7.3.
That
Louw denied that there was a general need to retrench, and that the
factual basis for the denial was that: “[Louw] was
already
fulfilling the role that [SAB] was allegedly creating.”
[3]
9.7.4.
In
response to the requirement to declare what alternatives to
retrenchment, Louw contended existed, the answer was: “[SAB]
should have appointed [Louw] in the new position without retrenching
him as he was already fulfilling the duties of the new post”
[4]
9.7.5.
In
response to the requirement to state whether the selection criteria
were in dispute and were alleged to be unfair, the answer
given was:
“The selection process was unfair as [SAB] indicated that it
needed someone with more senior managerial experience
to fill the
position. Yet the person appointed had less experience that
[Louw]”.
[5]
[SAB] replied
that Louw was one of a number of candidates and a “more
suitable and experienced candidate, ie Lee Stevens,
was appointed”.
Elsewhere in the minute, [SAB] avers that the new post was designed
to “…manage both sales and
operations…focussed on
driving integration between operations and sales…”
9.7.6.
In
response to the question about the respects in which the retrenchment
was procedurally unfair, the answer given was: “The
proposed
changes were a
fait
accompli
,
in that, prior to his retrenchment, [Louw] was already treated
unfairly in his last performance review and that, subsequent to
this
performance review, he was already told by Band that he should
“consider another role”. The consultation process
amounted to a sham.
[6]
[10]
It
is plain that the references to the “area manager”, in
the minute, can only be understood to refer to the George
post. Not
only is the Aliwal north post not mentioned, there is no reasonable
doubt that the case sought to be advanced was that
the “new
area manager” job was indistinguishable from Louw’s old
post and he ought to have been “translated”
into the new
post without having to compete for it. The reason he was not given
the new post was the result of a prior
mala
fide
decision to get rid of him, probably because it was thought his
performance was poor, itself an unfair opinion to hold of him.
[11]
The
allusions to the unfair performance ratings are obscure. The mention
of it in the statement of case simply hangs there without
a context.
Only in the minute is some flesh given, as cited above. The proper
understanding of the case so formulated was that
an enquiry was
necessary to determine if the old post, now redundant, was, in fact.
the equivalent of the new post, (ie the George
Area manager) and
whether Louw’s performance was at all relevant to the
declaration of his post as redundant.
[12]
This
survey illustrates that the judgment
a
quo
was in error when the following findings were made which are not
foreshadowed by the pleadings or the minute.:
Substantive
unfairness
12.1.
As
regards substantive fairness at: [41] – [46], the court
a
quo
held that:
‘
[41] It is
common cause …. that the position of the area manager in
Aliwal North remained vacant for some time even after
the
unsuccessful application for the same position at George by the
applicant. There is no evidence from the respondent as to why
that
position could not have been used as an alternative to either delay
the retrenchment or for that matter avoiding it by either
appointing
the applicant in an acting position or full time into it.
[42] The vacancy at
Aliwal North arose not as a result of the restructuring but because
the incumbent was promoted.
[7]
The respondent advertised for the position but could not for some
time obtain a suitable candidate. The position remained vacant
even
after the unsuccessful application for the position at George by the
applicant. There seems to be no doubt that the applicant
qualified
for the position as he had been shortlisted and was interviewed for
the position.
[43] There seems to be no doubt from
the facts of this case that the respondent in dealing with this
matter closed its mind to any
alternative but focused on the fact
that it had adopted the selection criteria which required the
applicant to apply and compete
for the position. Accepting for a
moment that the George position involved other internal candidates
who were affected by the restructuring,
the same does not apply to
the Aliwal North position. As stated earlier, the position remained
vacant for some time and after several
attempts at recruiting a
suitable candidate. An external candidate was found some time after
the applicant was notified of the
intention to retrench him and after
he was unsuccessful in his application for the position at George.
[44] I have already
said that the applicant qualified
[8]
for the position at Aliwal North having been shortlisted, interviewed
and obtaining position two in that interview. The interviewing
panel
in a sense found him a competent person to perform the function of
the area manager.
[45] The respondent contended that the
applicant was to blame for his dismissal in that he failed to apply
for the position even
after he was invited to do so. In a sense, the
applicant was dismissed for failing to apply for the position at
Aliwal North. In
other words, at the time of his dismissal there was
work that he could still d.’
Procedural
unfairness
12.2.
As
regards procedural fairness at [33] – [37], the court
a
quo
held the following:
‘
[33] Turning
to the inclusion of the performance rating in the selection criteria,
it is common cause that the interview panel took
that into account in
assessing the applicant’s application. ….
[34] ….
[34] ….
[35] Although, Ms Band sought to down
play the use of the performance review by the interviewing panel, it
is apparent from the
record of the interviewing panel that the
performance rating of the applicant was not simply an observation
made in passing. In
my view, the performance review formed part of
the evaluation and the comparison between the candidates ….
[37] In my view, subjectivity crept
into the selection criteria through the use of performance rating in
evaluating the candidates.
This also brought into the selection
criteria the element of fault on the part of the applicant. It is as
though the applicant
brought on himself the retrenchment because of
his failure to perform at the required standard. The fact that he did
not appeal
against the performance rating is, in my view, irrelevant
in the assessment of the fairness of the selection criteria and its
application.
The respondent was aware long before it formulated the
selection criteria that the applicant was unhappy with the rating
that he
received. The respondent should for this reason not have
included this factor into the selection criteria before affording the
applicant the opportunity to be heard in that regard.’
[13]
In
argument, and in the judgment
a
quo
,
it was emphasised that the pleadings and the minute must be read
together. This is true but unhelpful in these circumstances.
The
judgment
a
quo
proceeded from the premise that the averment that the procedural and
substantive unfairness of the dismissal pleaded in the statement
of
case had not been “abandoned” by anything stated in the
minute. The court
a
quo
held as follows:
‘
[27] In the
present matter, the pre-trial minutes provide the following under the
heading: “4. ISSUES THE COURT IS TO DECIDE:”
‘
Whether the
dismissal of the Applicant was procedurally and substantively fair.’
[28] The essence of the respondent’s
contention is that the applicant challenge to the selection criteria
has to be limited
to the issue of whether Mr Stevens had less
experience than him and not to the other issue of his appointment.
[29] It is apparent from the reading
of the pre-trial minutes and the pleadings in general that it can
never be said that the applicant
abandoned his cause of action in
relation to both substantive and procedural fairness by signing the
pre-trial minutes. There is
nowhere in the pre-trial minutes where
the applicant can be said to have abandoned issues relating to the
cause of action set out
in the pleadings, mainly the alleged
substantive and procedural fairness of the dismissal.’
[14]
That
is an incorrect approach. Those issues were indeed not abandoned, but
the premises upon which the issues were to be advanced
had been
refined and limited by the terms of the minute, which is the very
purpose of the minute and more particularly, the very
purpose of the
directives in the practice manual. It was therefore inappropriate to
fall back on the generalities of averments
about procedural and
substantive unfairness. Were that approach to be permissible, there
would be no point at all to efforts to
narrow issues and trim down
the scope of contestations. It was suggested in argument on behalf of
Louw that the contention on behalf
of SAB was that Louw had narrowed
his cause of action; that understanding is incorrect. The argument,
properly understood, was
that the terms of the minute narrowed the
permissible grounds upon which the cause of action was to be
presented.
[15]
Accordingly,
the judgment cannot be sustained because its findings are based on
issues not put to it for a decision. If the court
a quo took the view
that the case as pleaded and refined was not proven, the order ought
to have been a dismissal of the application.
If a litigant pleads a
bad case, it must lose, and it cannot be rescued from failure,
because it is possible to conceive and construct
a better case.
[16]
On
those grounds, the appeal must succeed.
The
second controversy: was the retrenchment unfair anyway?
[17]
Nevertheless,
we deal with the merits of the allegation of unfair dismissal itself.
For reasons of clarity, we address first the
issue of “selection
criteria” mentioned in section 189(2)(b). Section 189(1) and
(2) provide:
‘
189
Dismissals based on operational requirements
(1) When an employer contemplates
dismissing one or more employees for reasons based on the employer's
operational requirements,
the employer must consult-….
(2) The employer and the other
consulting parties must in the consultation envisaged by subsections
(1) and (3) engage in a meaningful
joint consensus-seeking process
and attempt to reach consensus on-
(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.”
[18]
Typically,
retrenchments result from one of two main reasons. Often, there is
believed to be a need to cut costs by reducing staff;
ie the very
objective is to dismiss some staff and a decision has to be made
whose posts will be declared redundant and which incumbents
will be
retrenched. This scenario intrinsically envisages job losses. The
other main reason that results in retrenchments is the
restructuring
of businesses to achieve various aims related to efficiency and the
like. Unlike the former example, it is not the
very aim of the
exercise to reduce staff numbers. However, by restructuring the way
the business is to operate, the risk exists
that some existing posts
are no longer required because, either the need falls away or the
functions are distributed among other
new posts or subsumed into
fewer functionally broader posts. The result is dislocation of the
incumbents of such affected posts.
In a restructuring exercise, the
performance of an incumbent of a post is irrelevant to the
declaration of redundancy. In the present
case that is plainly what
happened.
[19]
Axiomatically,
an incumbent of a redundant post is not automatically dismissed; that
person is merely dislocated and only after
the opportunities to
relocate that person in another suitable post have been explored and
exhausted, may they be fairly dismissed.
[20]
When,
as typically is the position, several employees who occupy posts of
similar function, find themselves in a predicament that
only some of
a number of existing posts are to be retained, a selection method
that is fair must be chosen to decide who is to
stay and who is to
go. That is the precise objective of sections 189(2)(b) and 189(7).
However, when, as often is the case with
managerial posts, the
redundancy of a particular post, which is one of a kind, the
circumstances do not in any way trigger the
need for “selection
criteria” in any meaningful sense. The reason is plain. No
“selection” for redundancy
takes place when only one post
is made redundant. In this matter, the post of Sales Manager, South
Cape Region, based at George
is one of a kind. Of course, there are
doubtless many “sales managers” in other regions, but the
redundancy of this
post in this region is the outcome of the
restructuring. The circumstances where cross-geographical bumping may
fairly occur were
not raised in this matter, correctly so in our
view, and do not require our attention in this judgment.
[21]
In
this matter, what has been inappropriately labelled as the “selection
criteria” is the inclusion of past performance
ratings in the
assessment process for the competitive process to select an incumbent
for the new job of area manager, George. This
is not a method to
select who, from the ranks of the occupants of potentially redundant
posts, is to be dismissed and is not what
section 189(2)(b) is
concerned to regulate. The fact, as illustrated in this matter, that
a dislocated employee, who applies for
a new post and fails, and by
reason thereof remains at risk of dismissal if other opportunities do
not exist does not convert the
assessment criteria for competition
for that post into selection criteria for dismissal, notwithstanding
that broadly speaking
it is possible to perceive the assessment
process for the new post as part of a long, logical, causal chain
ultimately ending in
a dismissal. Accordingly, in our view, it is
contrived to allege that the taking into account of performance
ratings in a process
of recruitment for a post is the utilisation of
an unfair method of selecting for dismissal as contemplated by
sections 189(2)(b)
and 189(7).
[22]
An
employer, who seeks to avoid dismissals of a dislocated employee, and
who invites the dislocated employee to compete for one
or more of the
new posts therefore does not act unfairly, still less transgresses
sections 189(2) (b) or 189(7). The filling of
posts after a
restructuring in this manner cannot be faulted. Being required to
compete for such a post is not a
method
of selecting for dismissal
;
rather it is a legitimate method of
seeking
to avoid the need to dismiss
a
dislocated employee.
[23]
Intrinsically,
a competitive process for appointment makes assessments of the
relative strengths and weaknesses of the candidates.
What Louw is
aggrieved about is that he was uncompetitive in these assessments.
This condition, so he says, derives from unfair
treatment in an
earlier, routine performance rating process. It is not apparent to us
that this allegation was substantiated on
the evidence, but assuming
that such a view was plausible, he went into the interview process
well knowing of this circumstance.
It is common cause he could have
invoked standard procedures to have a poor performance rating
re-examined. He failed to exhaust
those remedies.
[24]
In
the judgment
a
quo,
it was held this failure to raise a grievance was irrelevant. We
cannot agree; Louw cannot have his cake and eat it. The notion
that
using performance ratings was tantamount to intruding into the
process a “fault” element is without any foundation
in
the evidence and does not follow from the inherent requirement of a
competitive process
per
se
.
The interview panel cannot be faulted for dealing with his candidacy
on the footing upon which it was presented.
[25]
However,
independently of these considerations, the issue of the so-called
selection criteria is wholly academic because, even taking
Louw’s
self-perception as a point of departure, the successful candidate,
Stevens, in any event, had been rated higher than
Louw believed he
himself ought to have been. The purpose to be served by raising the
selection criteria in whatever guise was therefore
stillborn, on the
facts. Moreover, it was one of several factors and not an obviously
determinative consideration.
[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.
[27]
The
judgment a
quo
is
premised on the Aliwal North post remaining unfilled for some time
after the George post had been awarded to Stevens. However,
if there
was a difficulty in attracting candidates, perhaps not wholly
unrelated to the chilling prospect of actually living in
Aliwal North
not being at the top of anyone’s list of priorities, that fact
cannot metamorphize into an obligation to give
it to Louw on a
platter. But, to belabour the point, it is academic, because the
evidence discloses that although Louw said, at
one point, that he
would ‘consider’ applying for it, he ultimately chose not
to do so. The finding that Louw was dismissed
for failing to apply
for the Aliwal North post is therefore unsustainable. By contrast,
the corroborated and common cause evidence
which shows Band making
opportunities known to Louw, establishes that SAB did comply with its
obligations in terms of section 189
in this regard.
Conclusions
and Costs
[28]
The
appeal must succeed.
[29]
Both
parties seek costs. Accordingly, costs shall follow the result.
The
Order
(1)
The
appeal is upheld.
(2)
The
order
a
quo
is set aside and substituted with an order as follows:
“
The
application is dismissed with costs”.
(3)
The
costs of suit of the appeal shall be borne by the respondent.
_______________
Sutherland
JA
Sutherland JA (with whom
Coppin JA and Savage AJA concur)
APPEARANCES:
FOR
THE APPELLANT:
Adv G. A. Leslie,
Instructed by R. Carr of
Bowmans.
FOR
THE RESPONDENT:
Adv T. Golden SC,
Instructed by F. Schroter
of Schroter Attorneys,
[1]
See:
Price
N.O. v Allied - JBS Building Society
1980 (3) SA (AD) 874 at 882 D-E;
Zondo
v St Marks Church
(2015)
36 ILJ 1386 (LC) at [10] – [11].
[2]
The evidence showed
several meetings or telephone discussions between 27 September 2013
and the eventual dismissal. Louw put up
a counter-proposal on
structure on 2 October, but it was not adopted.
[3]
These statements were
made in compliance with paragraph 10.4.2.1 (b) of the Labour Court
practice manual.
[4]
See:
Practice
manual paragraph 10.4.2.1(c)
[5]
See: Practice manual
10.4.2.1.(d)
[6]
Practice
manual 10.4.2.1(f).
[7]
This is incorrect; the
old sales manager post was vacant, then abolished and a new area
manager post was created.
[8]
What ‘qualified’
means in this context is not clear; it is probable that it is used
in the sense of eligible, or that
Louw was a credible candidate.
That fact that Louw was ranked second of three candidates for the
George post gives the context.