THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable
Case no: JS863- 21

In the matter between:
LEWUSA OBO MAESELA AND 3 OTHERS Applicant s
and
RGM CRANES (PTY) LTD R esponde nt
Heard: 23 & 24 May 2024
Delivered: 29 April 2025


JUDGMENT

MOLOTSI, AJ

Introduction

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[1] This is a referral in terms of Rule 61 of the then- Rules of this Court. The
applicant s, LEWUSA obo Maesela and three o thers, referred an unfair dismissal
dispute claiming that the individual employees’ (applicants) dismissal for operational
requirements was both substantively and procedurally unfair. One of the applicants ,
namely Dickson Chauke, is no longer part of the applicants. The respondent is RGM
Cranes (Pty) Ltd.

[2] The applicants were dismissed by the respondent on 21 January 2021 and 23
January 2021, respectively. The applicants referred an unfair dismissal dispute to the
Commission for Conciliation, Mediation and Arbitration (CCMA) on 26 January 2021.
The matter was set down for conciliation on 20 October 2021. The dispute could not
be resolved, and a certificate of non- resolution was issued.
[3] The applicant filed a statement of case on 20 January 2022.

The relevant facts
[4] On 2 November 2020, the r espondent issued all affected employees ,
including the applicants, with an undated notice in terms of section 189(3) of the
Labour Relations Act
2 (LRA) , which set out inter alia that the r espondent was
contemplating retrenchments , and extending an invitation to the applicants to consult
on, amongst other things, possible alternatives to dismissal.
[5] On 4 November 2020, the first section 189 meeting was held between the
respondent and the applicants. The trade union representative, Joshua Mokoena, was also in attendance. The meeting was held at the r espondent’s premises.
[6] On 13 November 2020, and after the first meeting, the Respondent’s
compliance manager, Murray Vinnicombe, sent an email to the trade union attaching
the minutes of the first meeting and requesting to have another meeting on 18

1 GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court (repealed, effective 17
July 2024).
2 Act 66 of 1995, as amended.
3

November 2020 at the r espondent’s premises. On 18 November 2020, the
applicants and Mr Mokoena attended the second meeting.
[7] On 27 November 2020, Mr Vinnicombe sent an email to the trade union
attaching the minutes of the second meeting. On 3 December 2020, Mr Vinnicombe sent an email to the trade union inviting the applicants to a meeting to be held on 9 December 2020. The meeting of 9 December 2020 was cancelled, and a further
meeting was requested to be held on 23 December 2020 at 08h00. The meeting of
23 December 2020 did not take place.
[8] On 9 December 2020, the respondent’s M anaging Director signed a notice of
retrenchment indicating that the applicants’ services would be terminated as a result
of their positions becoming redundant, as well as the fact that the r espondent did not
have any suitable alternative positions available.
[9] Tornado Maesela, Petrus Hlatshwayo, and George Mok gwashana were
dismissed on 21 January 2021.

Evidence
On behalf of the Respondent
[10] Mr Vinnicombe testified under oath that he was employed by the respondent
as a compliance manager around August 2020. He facilitated the return to work of
employees during the COVID -19 pandemic.
[11] From March 2020, the respondent had implemented a no-work , no-pay policy.
There were a lot of issues at the workplace relating to COVID- 19, including social
distancing and the employees ’ comorbidities . During October – November 2020, Mr
Vinnicombe facilitated a section 189 process on behalf of the respondent. The
section 189 process was a last resort to be considered by the respondent.
[12] During that time, the respondent had lost a number of projects as its clients
had put their projects on hold. Capex , i.e. the design and manufacturing of
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equipment, was put on hold as a result of the hard lockdown. Non-critical work at the
workshop was also put on hold. As a result, the respondent’s sales were
jeopardi sed. Mr Vinnicombe was further informed that the respondent had
implemented a policy of paying employees reduced salaries. The respondent
consequently lost a significant amount of money as a result of the COVID -19
pandemic.

[13] As a result of social distancing challenges, most of the respondent’s work was
not performed in the workshop but rather at its client s’ premises. The respondent’s
business involved the servicing of overhead cranes , and the nature of the work is
that the equipment cannot be brought to the respondent’s workshop, hence, the
overhead cranes were serviced at the clients ’ premises. During September 2020,
Capex was reinstated only at reduced levels. Capex was done by the projects
department, and the manufacturing of big equipment was subcontracted.
[14] Prior to the commencement of the section 189 process, the respondent
considered other options like short -time layoff of employees and one d irector and
finance manager had to be let go. Around June 2020, the respondent also put forward a proposal of voluntary retrenchment , and four technicians accepted
voluntary retrenchment. Furthermore, the employees took a 10% reduction in their
salaries.
[15] The respondent further concluded a shutdown agreement with employees ,
which provided that:
‘a. All staff to take annual leave for the period of the shutdown.
b. Staff who currently don’t have enough leave to cover the shutdown
period will be allowed to go into the negative on their leave allocation.
c. Monthly paid employees will be required to take unpaid leave during
the rest of the year, until such time that they are in credit with their leave allocation.
d. Weekly paid employees will be requested to work weekends, at normal
rates (no overtime) to make up the negative leave balance.
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e. Should the shutdown be extended beyond the 17th April 2020, the
company will have no alternative but to implement the temporarily layoff all
staff until such time that the company can resume its operations.’

[16] The above options were implemented prior to the respondent proceeding with
the section 189 process. The respondent started implementing the section 189 process towards the end of October 2020. Retrenchment was the last resort
considered by the respondent. The respondent’s sales as compared to a previous
period had decreased by about R 20 million. Employees considered for retrenchment
were employees who were not able to work due to COVID- 19 restrictions. The
original number of people identified was ten employees , and then this number was
eventually reduced to four. The affected employees were from the following
categories: four employees from the projects division , comprising one off-painter and
from the workshop division , one off-painter and two off-general labourers .

[17] The original ten employees were identified based on the LIFO principle,
retention of skills and people who were not able to come back to work due to
COVID- 19 restrictions. On 2 November 2020, the employees were issued with a
section 189(3) notice. The key points in the section 189(3) notice were that: reasons for dismissals were based on operational requirements; Covid -19 lockdown; pricing
affecting the sales, global economy , as the business was largely project -orientated,
to reduce the total costs of the respondent.

[18] The method of selecting the employees for retrenchment consisted of LIFO
and retaining specific expertise and skills, some individual responsibilities may increase or decrease on the redefined job function and demotions as a result of the
redeployment of staff to other divisions or intergroup subsidiaries. The retention of
skills and expertise necessitated that the technicians were based at the clients ’
premises , and work carried out at the respondent’s workshop was minimal.

[19] As a result of the new organi sational structure, previously they had eight
heads of department ( HODs ), and in the new structure, they had three. The three
HODs were the finance manager, technical director and technical manager .
6


[20] Two consultation meetings took place between the respondent and the
applicants and the applicants were represented by a union official. Mr Vinnicombe
attended the consultation meetings. The first consultation took place on 4 November
2020. The purpose of the consultation was to ascertain from the employees if they have other alternatives to the alternatives provided by the respondent. During the consultation, the union stated that the process was unfair. There was a short
discussion on short time, and one person, namely Mr Chauke (one of the employees
identified for retrenchment) , knew that he (Mr Vinnicomb e) recently joined the
company and therefore wanted other senior managers to be part of the section 189
process. Mr Mokoena asked about the process of rotating staff, and he (Mr
Vinnicomb e) stated that the idea was to reduce the costs of the respondent.

[21] He explained that the respondent had already considered: the reduction of
work ing hours in accordance with the requirements of the COVID regulations and the
Disaster Management Act
3 (DMA); 10% reduction of wages across the company;
systematic return of individuals that could work in accordance with the COVID
regulations and DMA , taking into account the comorbidities as defined by return to
work policy; restructuring of the company due to lost income and early retirement of certain individuals ( two individuals took this option); mutual separations; and
resignations ( three individuals took this option).
[22] The applicants did not raise any issues in respect of the measures which were
taken by the respondent prior to the commencement of the section 189 process. The
applicants only took issue with how money was handled. This is related to the TERS
and UIF payments. Mr Chauke further stated that the respondent wasted money as
they bought vehicles. Another issue raised by the employees was that the
respondent initially indicated that there would be no layoff when they accepted the
10% salary r eduction, and why the respondent was not utili sing a rotation system. A
feasibility study was conducted, and it was agreed to sell the company vehicles and
lease vehicles for three years.


3 Act 57 of 2002.
7

[23] During the first consultation, Mr Chauke demanded a qualification audit of the
technicians as he believed that he was more qualified than other technicians.
However, Mr Chauke only had two years of service with the respondent at that time. The minutes of the first consultation were circulated to the union, and the respondent
did not receive any disagreements in respect of the minutes. During the first consultation, the applicants did not discuss alternatives to retrenchment.

[24] The second consultation meeting took place on 18 November 2020. In the
second meeting, the minutes of the first meeting were discussed , and Mr Mokoena
raised an issue about the minutes. The feedback given arising out of the first
consultation was that: regarding TERS payment , the respondent paid employees
advances for the month of April on a weekly basis; the respondent received TERS payments and the employees were paid and that the respondent never said that there would not be layoff when the employees accepted the 10% salary r eductions.
[25] The respondent di d not utilise the rotation system because there was little to
no work required for the sandblaster. Sandblasting was previously done by Petros
Hlatshwayo, an assistant at the workshop. Each technician was now responsible for
their own sandblasting and consequently, there was no need for Mr Petros Hlatshwayo. In respect of George Mokgwashana, a general worker , what little
painting that was required in the workshop was carried out by each technician or
assistant technician.
[26] In respect of Tornado Maesela, the projects painter, the respondent lost a
number of tenders that it had hoped to secure. There were no large amounts of work
in the projects division , and in June 2020, Tornado messed up when he was painting
monorail beams ; he also booked the wrong hours. The applicants failed to provide
details on how the process was flawed. [27] During the second consultation meeting, the respondent was working at less
than 50% of its capacity. In the consultation, Mr Mokoena raised issues relating to
the previous layoff , and this had nothing to do with the retrenchment process. The
applicants provided no alternatives to avoid retrenchments. At the end of the second
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consultation, Mr Vinnicombe requested the third consultation meeting to take place
on 9 December 2020.


[28] The minutes of the second consultation meeting w ere circulated to the trade
union, and no comments were received as to whether the minutes correctly reflect ed
what was discussed during the second consultation meeting.
[29] On 9 December 2020, the applicants arrived for the third consultation
meeting. The applicants did not enter the meeting venue as they were waiting for the union representative to arrive. The meeting was supposed to start at 08h30 on 9 December 2020. The union representative failed to attend the meeting, and the
applicants did not attend the meeting. The applicants stated that they would go to
the union offices. At 09h15, Joshua Mokoena arrived, and he informed him that the
applicants had gone to the union offices. Mr Vinnicombe denied that the applicants
were refused entry to attend the meeting on 9 December 2020.

[30] Mr Vinnicomb e then sent another email requesting the next consultation
meeting to be held on 23 December 2020. The applicants and the union
representative did not attend the meeting on 23 December 2020, and the decision to
retrench the applicants was taken on the same day . Mr Vinnicombe proceeded to
prepare the retrenchment letters. Despite the fact that the notice of retrenchment is dated 9 December 2020 and signed by Mr Alex Dowling, the managing director, on 9 December 2020, the employees did not attend the consultation meeting on 9 December 2020. [31] The date of retrenchment is not 9 December 2020. The intention of the
consultation meeting of 9 December 2020 was to inform the applicants that unless they provide alternatives, no other discussions would follow other than the
retrenchment.
[32] The applicants had the following service period with the respondent: George
Mokgwashana had 16 years of service; Tornado Maesela had three years of service;
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Petros Hlatshwayo had three years of service, and Dickson Chauke had two years of
service.

[33] Under cross -examination, Mr Vinnicomb e confirmed that he worked for the
respondent as a consultant and he bec ame part of management. That he had 25
years’ experience at that time , and he followed the main agreement of the MEIBC
when he conducted the retrenchment process. He confirmed that he has never seen
the applicants ’ work.

[34] He confirmed that the applicants were not part of the new structure, which
was drafted on 26 August 2020. He did not know prior to the first consultation that
the applicants were members of the union. The applicants were chosen for
retrenchment as their relocation was not possible.
[35] He agreed that the applicants signed for 10% salary r eductions in order to
avoid retrenchment. He confirmed that four other employees returned to work , and
they worked as and when required. He confirmed that the respondent’s HOD s
indicated that the applicants could not do any other work. The applicants did not have their curriculum vitae in their files. He looked at the performance appraisals and
competency assessment of the applicants.
[36] He could not deny that applicants were on an extended layoff when the
consultation process started. He further could not deny that Tornado Maesela was last at work on 30 June 2020, George Mokgwashana was last at work on 26 May
2020, and Petros Hlatshwayo was last at work on 26 May 2020. Despite the
applicants being on an extended layoff, functions performed by the applicants were not going to be performed in the company in future, hence the retrenchment was a
cost-saving exercise.
[37] He further confirmed that some individuals were given an opportunity to clean
the workshop. He confirmed that in 2021, the respondent employed other people in
certain jobs , like the lady who was employed in stores from a subsidiary company.
He confirmed that the respondent had subsidiary companies. There was an RGM in
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Rustenburg, but there was no possibility to utili se the applicants in RGM Rustenburg.
RGM Rustenburg had crane assistance and not workshop assistance. He did not
inform the applicants about RGM Rustenburg. The applicants never suggested to the respondent that they should be demoted.
[38] A person by the name of Elias was not retrenched but kept in the panel
building. A person by the name of Enos earned R60 per hour with eleven years of
service and was not retrenched, and George Mokgwashana earned R81 per hour
and was retrenched. A person called Sam returned to work and was earning R34 per
hour, and was able to perform other duties like collecting refuse at the workshop.
[39] Mr Vinnicomb e confirmed under cross -examination that the meeting of 23
December 2020 was not confirmed by the union and the applicants. On behalf of the applicants
[40] Mr Joshua Mokoena testified under oath that the trade union started recruiting
members at the respondent’s workplace in July 2020. In August 2020, they wrote a letter to the respondent as per section 21 of the LRA. The union then referred a dispute to the CCMA [41] He was involved in the retrenchment process. He confirmed that he takes no
issue with the minutes of the consultation meetings except paragraph 3.5 of page 9
of the bundle of documents (trial bundle) . During the consultation meetings, the
union presented options to the respondent and asked the respondent why it was retrenching the applicants.
[42] There was an option available other than retrenchment , and the employees
had already signed for that option. The union expected the respondent to propose a
further reduction in the salaries of the applicants , like a 15% or 20% salary r eduction
instead of retrenchment. The issue of the 10% salary r eduction was done by the
respondent and the applicants without the trade union.

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[43] He attended the consultation meeting on 18 November 2020. This was after
he confirmed the meeting after receiving the request from the respondent. The
respondent did not consider the issue of a salary cut during the consultation process.
The selection of the applicants for retrenchment was unfair. The 10% salary reduction affected all employees at the workplace, and now it was unclear how the
applicants were identified for retrenchment.

[44] He arrived late for the meeting of 9 December 2020. When he arrived for the
consultation meeting, he was informed that the applicants had left. He called the
applicants , and the applicants informed him that the respondent had cancelled the
meeting.
[45] The trade union normally closes its offices for the December holidays, during
the second week of December. He did not attend the meeting of 23 December 2020,
as it would have been difficult to attend such a meeting, as the Union office closed
during the second week of December 2020. It is clear that the respondent had already made up its mind to retrench the applicants. The applicants could have been
taken to other departments. It was the respondent who should have considered alternatives to dismissal.
[46] Under cross -examination, he confirmed that the applicants were not at work
on a full-time basis. When he drafted an email dated 5 October 2020, he was
informed by the workers that the respondent had asked them to collect mutual separation monies , and hence he drafted the email dated 5 October 2020. The
workers were previously offered a 10% salary reduction and later told to collect
mutual separation monies. He confirmed that all of these happened prior to the retrenchment process.
[47] During the consultation meeting of 4 November 2020, they disagreed about
other matter s before they could discuss the procedure followed by the respondent.
There were other non- union members who attended the consultation meetings , and
he therefore did not want to dominate the consultation process. The respondent had to show them why they were not taking up the option of a further salary reduction.
12

This was an important issue for the trade union. The respondent did not indicate to
the trade union why the existing 10% salary r eduction was not working at that stage.


[48] The alternatives put forward during the consultation meeting were a further
decrease in the applicants’ salaries.

[49] Mr Tornado Maesel a testified under oath that he was employed by the
respondent as a painter. He was painting cranes, beams, etc. He spay ed cranes at
the workshop and thereafter install ed them at the client’s sites. During COVID, he
installed cranes at Komatsu. He was not only responsible for painting but also did
other duties as well.

[50] The other duties that he performed were to assist technicians when their
assistance were not at work. He would also accompany the technicians to the
client’s sites and dig holes and perform boilermaking duties. He was working every
day prior to COVID- 19. George Mokgwashana was doing similar work to him.
[51] Petros Hlatshwayo was doing sandblasting. Petros Hlatshwayo would also go
to the client’s sites. Petros Hlatshwayo did sandblast ing at SAPPI. Petros
Hlatshwayo would also assist technicians. They would also do general work that the
respondent would ask them to do, like cleaning the workshop.
[52] On 26 March 2020, the respondent called all the staff members into a
meeting. They were told about the leave days. The respondent called them one by one to sign the leave forms. He did not sign the leave form as he asked the respondent when COVID- 19 would end. His last day at work was on 29 June 2020,
and he was not working every day and only worked when required .
[53] During the consultation meeting of 4 November 2020, they agreed with the
trade union that Mr Chauke would speak on their behalf. It was not necessary for all of them to speak. At the time of the consultation process , work was continuing.
Moeketsi, a cleaner, was doing painting work. Sam, another cleaner, was doing
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painting work. Sam was performing George Mokgwashana’s duties. It was clear that
when the first consultation meeting took place, the respondent had already taken a decision to retrench them. Both Moeketsi and Sam were still doing the work that he
and George Mokgwashana were doing.
[54] Mr Vinnicomb e, on 9 December 2020, whilst they were standing outside at the
gate, informed them that the consultation meeting was cancelled. After this meeting,
he travelled home to Limpopo. He does not know about the meeting of 23 December
2020.
[55] Under cross -examination, he confirmed that he accepted the 10% salary cut
as he wanted to save his job.

Evaluation
[56] The advent of the COVID- 19 pandemic and the subsequent lockdown did not
give employers a license to dismiss employees based on operational requirements
without fair reasons. No matter the reasons, dismissal based on operational requirements is not just a mere tick -box exercise. This Court is duty -bound to
determine whether there were fair reasons for dismissal and whether the dismissal was effected in accordance with a fair procedure.
[57] Section 188(1) of the LRA provides that:
‘(1) A dismissal that is not automatically unfair, is unfair if the employer fails
to prove – (a) that the reason for dismissal is a fair reason –
(i) related to the employee’s conduct or capacity; or
(ii) based on the employer’s operational requirements; and
(b) that the dismissal was effected in accordance with a fair procedure.’

[58] The respondent , like many other employers across the country and the g lobe,
faced difficult decisions when the hard lockdown commenced towards the end of
March 2020. The respondent concluded a shutdown agreement with its employees.
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What the respondent further agreed with its employees was that all the employees
would get a 10% salary r eduction. The evidence shows that the purpose of this 10%
salary reduction was to ensure that the employees kept their jobs.
[59] The respondent , upon the relaxation of the hard lockdown rules , was faced
with a loss of revenue. The respondent ’s Capex was severely affected as clients put
orders on hold. The respondent’s sales were severely dented to the value of R20
million as compared to the previous year prior to COVID- 19. As a result of this, the
respondent had to cut costs to ensure the survival of the business. During that time,
the employees were on a layoff , i.e. working as and when required to work.
Employees were not working regularly.
[60] When the respondent employed Mr Vinni combe around August 2020, it was
clear something had to be done. The respondent had previously embarked on voluntary retrenchments and mutual separations. Some employees accepted these
options. Other employees resigned. The evidence of the respondent suggest s that
this was not enough, as the respondent continued to suffer los ses.
[61] Mr Vinnicomb e’s evidence was that the retrenchment of employees was
considered as a last resort. Even if retrenchment wa s considered as a last resort, the
retrenchment process must comply with section 189 of the LRA. Section 189(3) of the LRA required the respondent to issue a written notice to the applicants inviting them to consult and to disclose all the relevant information including but not limited to: the reasons for the proposed dismissals, the alternatives that the employer considered before proposing dismissal, and the reasons for rejecting each of those alternatives, the number of employees likely to be affected and the job categories in which they are employed, the proposed method of selecting which employees to dismiss, the time when or the period which, the dismissals are likely to take effect, the severance pay proposed, any assistance that the employer proposes to offer to the employees likely to be dismissed.
[62] The respondent on 2 November 2020 issued a written notice in terms of
section 189(3) of the LRA. The written notice is undated and was signed by the
15

respondent’s Managing Director, Alex Dowling. The written notice was issued to the
trade union of the applicant s. In terms of the written notice, in compliance with
section 189(3) of the LRA, the respondent amongst others stated the reasons for
dismissal , based on operational requirements as being (i) the current downturn
experienced by the respondent due to continued COVID -19 lockdown extensions
and sales compared to the previous year decreased by R20 million; (ii) pressure
regarding pricing which has negatively affected sales ; (iii) corporates disinvestment
in the form of work either been stopped or delayed affecting sales : and (iv) a rise in
manufacturing costs and clients’ unaffordability. [63] Was there a justifiable and genuine reason to dismiss the applicants based on
operational requirements ? The requirements listed in section 189(3) of the LRA in
respect of the alternatives to retrenchment to be considered by the respondent and
reasons for rejecting the alternatives, the proposed method of selecting employees
to be retrenched, the number of employees likely to be affected and the job categories in which they are employed, had to be complied with. In essence, a
proper consultation process must follow.
[64] A consultation process between the respondent and the applicants and their
trade union representative took place on 4 November 2020 and 18 November 2020,
respectively . Only two consultation meetings were held. The minutes of the two
consultation meetings were not in dispute except for a minor issue raised by M r
Joshua Mokoena. [65] The summary of the consultation meeting reveals the following: On 4
November 2020, this meeting was characteri sed by discussing issues related to the
layoff of employees (a process which took place before the retrenchment exercise)
and why the practice of rotating staff was not being done. The other issue which was
discussed related to TERS payment to the employees, and that other employees are doing the work of the applicants , as well as a request to conduct a qualification audit
for all technicians , as per the minutes . Mr Vinnicomb e viewed the purpose of the
meeting as to discuss any issues and possibilities of negotiating points that would
require top management input.
16



[66] Mr Vinnicomb e then went on to discuss what the respondent has previously
done, i.e. reduction of working hours in accordance with requirements of the COVID-
19 regulations, a 10% salary r eduction across the board, return of employees to
work in accordance with COVID- 19 regulations, restructuring of the company due to
loss of income.
[67] As to the consultation meeting on 4 November 2020, nothing was discussed
relating to the selection method used for identifying the applicants to be retrenched.
Nothing was discussed regarding the alternatives considered by the respondent and why such alternatives were rejected by the respondent. Nothing was disclosed to the union and the applicants as to why the previous measures implemented by the
respondent were not working. This latter part relates to what is called the disclosure
of all relevant information. [68] The consultation meeting held on 18 November 2020 can be summari sed as
follows: The meeting started by giving feedback on the issues raised in the first
consultation, which , amongst other s, included TERS payment to employees and
reasons why rotation of employees was done. Then Mr Vinnicomb e, in what appears
to be an attempt to indicate why the applicants were selected for retrenchment ,
stated that there is little or no work for sandblasting, which was performed by Petros
Hlatshwayo.
[69] As for George Mokgwashana, the workshop painter, little painting work is
required at the workshop. As for Tornado Maesela, the respondent lost a number of tenders it had hoped to secure and that during June 2020, Tornado messed up a
painting of monorail beams. As for Dickson Chauke, due to his declaration of HIV
status and due to COVID- 19 regulations that anyone with existing co- morbidity would
make them susceptible to COVID- 19 and must have reduced interaction and that
Dickson has a reputation of being difficult to work with.

17

[70] The meeting of 18 November 2020 then discussed the issue regarding the
non-training of black employees and whereas w hite employees were trained. The
union members were discriminated against and victimi sed. Again, the issue of layoff
was discussed as the union representative stated that the layoff was unfair and
wanted the employees to be reinstated. Mr Vinnicomb e stated that the issue
regarding the reinstatement of employees was presently under review at the
bargaining council after the union had referred an unfair labour practice dispute.
Eventually, the feedback which was given by Mr Vinnicombe was rejected by Mr
Mokoena.

[71] Mr Mokoena stated that the layoff was impacting the employees and that the
process was unfair and procedurally incorrect. The union then demanded the immediate reinstatement of employees, the resolution of section 189, whilst the
employees were back at work, and that the employees were not getting paid.
[72] During the consultation meeting of 18 November 2020, nothing was discussed
regarding the alternatives considered by the respondent and the reasons for
rejecting the alternatives. The only thing which was discussed appears to have been the selection method. Furthermore, on the face of it, no sufficient information was
disclosed to the applicants and the union during the consultation process to enable the consultation process to take place fairly .
[73] The consultation meetings between the applicants and the respondent fell
short of being a meaningful joint consensus -seeking process. In SA Clothing &
Textile Workers Union and Others v Discreto – A Division of Trump & Springbok
Holdings
4, the Labour Appeal Court (LAC) held that:
‘[7] The need to consult before a final decision on retrenchment is taken, is
said to found its rationale in both pragmatism (the need to avoid retrenchment
altogether or at least to minimize dismissals and mitigate their consequences) and principle (to give employees a chance to be heard and to avoid or
minimize industrial conflict ) … .

4 (1998 ) 19 ILJ 1451 (LAC) at paras 7 – 8.
18

[8] …For the employee fairness is found in the requirement of consultation
prior to a final decision on retrenchment. This requirement is essentially a
formal or procedural one, but, as is the case in most requirements of this
nature, it has a substantive purpose. 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 scrutinizing the consultation process is not
to second- guess the commercial or business efficacy of the employer’s
ultimate decision (an issue on which it is, generally, not qualified to pronounce
upon), but to pass judgment on whether the ultimate decision arrived at was
genuine and not merely a sham (the kind of issue which courts are called
upon to do, in different settings, every day). The manner in which the court adjudges the latter issue is to enquire whether the legal requirements for a proper consultation process have been followed and, if so , whether the
ultimate decision arrived at by the employer is operationally and commercially justifiable on rational grounds, having regard to what emerged from the consultation process.’

[74] In BMD Knitting Mills (Pty ) Ltd v SA Clothing & Textile Union
5, the LAC held
that:
‘… The word ‘fair ’ introduces a comparator, that is a reason which must be fair
to both parties affected by the decision. The starting- point is whether there is
a commercial rationale for the decision. But, rather than take such justification
at face value, a court is entitled to examine whether the particular decision has been taken in a manner which is also fair to the affected party, namely the
employees to be retrenched. To this extent the court is entitled to enquire as
to whether a reasonable basis exists on which the decision, including the
proposed manner, to dismiss for operational requirements is predicated.
Viewed accordingly, the test becomes less deferential and the court is entitled
to examine the content of the reasons given by the employer, albeit that the
enquiry is not directed to whether the reason offered is the one which would

5 (2001 ) 22 ILJ 2264 (LAC) at para 19.
19

have been chosen by the court. Fairness, not correct ness is the mandated
test.’

[75] The selection criteria followed by the respondent was not fair and objective. At
worst , the selection criteria used by the respondent to select the applicants for
retrenchment was influenced by the applicants conduct at the workplace in respect
of Dickson Chauke and his medical condition, the applicants ’ high salary especially
George Mokgwashana who was earning R81 per hour, as per the evidence of Mr Vinnicomb e that he was earning more than other employees and lastly that their
relocation was not possible. The respondent was not confined to applying only the
LIFO principle.
[76] It is a trite principle that , absent an agreement, the selection criteria for
operational requirements dismissal must be fair and objective. In Jones v KPMG Aiken & Peat Management Services ( Pty) Ltd
6, the Industrial Court held that:
‘It is a truism that an employer should apply fair and objective criteria when
implementing retrenchments. The intrinsic value of such criteria was explained as follows in Williams v Compair Maxam 1982 IRLR 83:
‘The purpose of having, so far as possible, objective criteria, is to ensure that
redundancy is not used as a pretext for getting rid of employees whom some managers wished to get rid of for other reasons . Excepting cases where the
criteria can be applied automatically (eg last in, first out) in any selection for redundancy, elements of personal judgment are bound to be required, thereby involving the risk of judgment being clouded by personal animosity. Unless some objective criteria are included, it is extremely difficult to demonstrate that the choice was not determined by personal likes and dislikes alone.’
[77] The evidence shows that Mr Vinnicomb e has not observed any of the
applicants doing their work. The applicants ’ HODs or line managers did not testify
during the hearing. Mr Vinnicombe testified that the HOD were of the view that the
applicants could not perform any other duties. However far from it, the evidence of
Mr Maesela, which was largely uncontested, was that the applicants were able to

6 1995 16 ILJ 1241 (IC) at 1247B -D.
20

perform other duties which amongst other s included, being assistant technicians,
boilermakers, able to perform work at the client’s sites, and any other general work
which the respondent had assigned to them.
[78] Simply put, there was no fair and objective criteria used by the respondent to
select the applicants for retrenchment. The respondent , by taking into consideration
that some of the applicants were earning higher salaries, their medical conditions,
that one of the applicants was difficult to work with, and that their relocation was not
possible, was far from being a fair and objective selection criterion.
[79] The evidence of Mr Vinnicomb e that he looked at skills retention is rejected,
especially taking into consideration that Sam, Enos and others were doing the same
work that the applicants were doing prior to their retrenchments. What is also telling is that Sam and Enos were doing the work of the applicants whilst the consultation process was underway. There was no evidence tendered by the respondent to show that Sam and Enos were more skilled than the applicants.

[80] This raised the inevitability that the consultation process was just a mere box -
ticking exercise by the respondent and that the applicants were going to be
retrenched come what may.
[81] The consultation meeting held on 18 November 2020 did not finali se the
retrenchment process. Nothing was concluded on 18 November 2020, which was the last consultation meeting. More was still required, hence the parties agreed to meet
on 9 December 2020. The evidence of Mr Vinnicomb e was that the purpose of the 9
December 2020 consultation was to ask the union and the applicants to provide
alternatives. It is the respondent who must indicate to the applicants that it has
considered alternatives and to provide reasons why such alternatives were not considered. The respondent failed to do so.
[82] The applicants , together with their trade union, were not provided with an
opportunity after 18 November 2020 to indicate which alternatives the respondent could consider. The evidence of Mr Mokoena was that they did provide the
21

respondent with alternatives , which , amongst other s, included the option of a further
reduction in the salaries of employees by about 15% -20%. Although this option is not
indicated anywhere in the minutes of the consultations of 4 and 18 November 2020,
respectively, this Court accept that this would have been an option from the
applicants had the consultation meeting of 9 December 2020 taken place. At any
rate, the respondent had an obligation to disclose to the applicants why the measures implemented previously were not working.
[83] The consultation meeting of 9 December 2020 did not take place. The
respondent ’s version was that the applicants were waiting for the union
representative, hence, they did not enter the meeting venue, and they left to go to
the union offices. The applicants ’ version was that the respondent cancelled the
meeting. What is common cause between the parties is that on 9 December 2020, the union representative was running late for the meeting. [84] On the balance of probabilities , it is unlikely that the applicants would decide
to abandon the consultation meeting of 9 December 2020 simply because the union
representative was running late. The probabilities are that the respondent , having
observed that the applicants are not inside the meeting venue and the union representative was running late, decided to cancel the consultation meeting. [85] What substantiates the above finding is that the respondent’s Managing
Director , on 9 December 2020, signed the applicants’ dismissal letters. It is therefore
easier for the respondent to cancel the consultation meeting as it had already taken
a decision to dismiss the applicants on 9 December 2020.
[86] What to make of the alleged consultation meeting scheduled for 23 December
2020? The evidence shows that the parties agreed on the dates for each
consultation. The consultation dates were not imposed on one party by another
party. The evidence of Mr Mokoena, which was largely uncontested, was that the
trade union closed its offices during the second week of December 2020, and
therefore, it was going to be difficult to attend the consultation meeting on 23
22

December 2020. The union did not confirm 23 December 2020 as the date for the
consultation meeting.

[87] The evidence of Mr Vinnicombe that the decision to dismiss the applicants
was taken on 23 December 2020 is rejected. The documentary evidence clearly shows that the applicants ’ dismissal letters were signed by the respondent on 9
December 2020.

[88] It is clear that the 23 December 2020 consultation meeting was a sham as the
respondent ’s Managing Director had already signed the applicants ’ dismissal letters
on 9 December 2020. This conduct of the respondent was callous and resulted in unfairness towards the applicants. There was simply not going to be any purpose served by the consultation of 23 December 2020, as the applicants were already
dismissed at that time , despite the fact that the applicants were not aware of their
dismissals. The applicants received their dismissal letters in January 2021.

[89] Given all of the above, especially taking into consideration that other
employees were performing the duties of the applicants, that no fair and objective
selection criteria was followed by the respondent, the failure by the respondent to
consider alternatives to retrenchment and the respondent simply not inform ing the
applicants about alternatives at RGM Rustenburg. Adding to this, the fact that when
the new structure was drafted in August 2020, the applicants were already not part of the new structure despite the fact that the retrenchment process was considered at the end of October 2020, the fact that the applicants were already last at work 30
June 2020 and 26 May 2020 respectively , failure by the respondent to disclose to the
trade union and the applicants why the measures previously implemented were not working ( it was not enough for the respondent to mentioned the previous measures
taken) . All this illustrate s that there was no genuine and justifiable reason to dismiss
the applicants based on operational requirements. The respondent had no intention to participate in a meaningful joint consensus -seeking process in an attempt to avoid
or minimi se the retrenchment.

23

[90] It is the finding of this Court that the dismissal of the applicants was both
substantively and procedurally unfair.

[91] The applicants sought reinstatement. Reinstatement is a primary remedy in
terms of the LRA. There was no evidence tendered by the respondent to show that the continued employment of the applicants would be intolerable and that it is not
reasonably practicable for the respondent to reinstate or re- employ the applicants.
[92] Consequently, the applicants are entitled to reinstatement as a relief.
[93] In the premises, I make the following order:

Order
1. The dismissal of the applicants was substantively and procedurally
unfair.
2. The respondent is ordered to retrospectively reinstate the applicants to
their previous positions , which they occupied prior to their dismissal.
3. The respondent is further ordered to pay each applicant backpay
calculated at their rate of pay at the time of dismissal.
4. There is no order to costs.

H Molotsi
Acting Judge of the Labour Court of South Africa

Appearances :
For the A pplicant: A Goldberg
Instructed by: Goldberg Attorneys
For the R espondent: J Scallan
Instructed by: D.R. Du Toit