De Weijer v Babcock Africa Services (Pty) Ltd (JS195/21) [2025] ZALCJHB 193 (19 May 2025)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable
Case no : JS 195/21

In the matter between:

MICHAEL DE WEIJER Plaintiff

and

BABCOCK AFRICA SERVICES (PTY) LTD Defendant

Heard : 17 – 19 March 2025
(Heads of argument submitted on 26 March 2025 )
Delivered : 19 May 2025
___________________________________________________________________
JUDGMENT
___________________________________________________________________
PRINSL OO, J

Introduction

[1] The Plaintiff was dismiss ed in October 2020 for reasons related to the
Defendant’s (Babcock) operational requirements , as provided for in section

189 of the Labour Relations Act1 (LRA) . He filed a statement of claim ,
challenging the fairness of his dismissal .

The pleadings and pre -trial minute

[2] It is trite law that this Court and the parties are bound by the pleadings and
the pre -trial agreement2 and the issues they agreed to in the pre -trial minute .3
This Court cannot and should not go beyond the issues it is required to
determine , with reference only to the pleadings and the pre -trial minute .

[3] Jacob and Goldrein4 aptly capture the position as follows:

‘As the parties are adversaries, it is left to each of them to formulate his
case in his own way, subject to the basic rules of pleadings… For the
sake of certainty and finality, each party is bound by his own pleadi ng
and cannot be allowed to raise a different or fresh case without due
amendment properly made. Each party thus knows the case he has to
meet and cannot be taken by surprise at the trial.
The Court itself is as much bound by the pleadings of the parties a s
they are themselves. It is not part of the duty or function of the Court to
enter upon any enquiry into the case before it other than to adjudicate
upon the specific matters in dispute which the parties themselves have
raised by their pleadings. Indeed, the Court would be acting contrary to
its own character and nature if it were to pronounce upon any claim or
defence not made by the partie s…
The Court does not provide its own terms of reference or conduct its
own enquiry into the merits of the case but a ccepts and acts upon the
terms of reference which the parties have chosen and specified in their
pleadings. In the adversary system of litigation, therefore, it is the

1 Act 66 of 1995, as amended.
2 Chemical, Energy, Paper, Printing, Wood & Allied Workers Union and Others v CTP Ltd and another
[2013] 4 BLLR 378 (LC).
3 Professional Transport & Allied Workers Union on behalf of Khoza and Others v New Kleinfontein
Gold Mine (Pty) Ltd (2016) 37 ILJ 1728 (LC); National Union of Metalworkers of SA and Others v
Driveline Technologies (Pty) Ltd and another (2000) 21 ILJ 142 (LAC).
4 JIH Jacob, IS Goldrein, ‘ Pleading: Principles and Practice ’, (Sweet & Maxwell) at pp 8 - 9.

parties themselves who set the agenda for the trial by their pleadings
and neither party can complain if the agenda is strictly adhered to. ’

[4] In Candy and Others v Coca Cola Fortune (Pty) Ltd ,5 the Court considered the
purpose of a statement of claim and held that:

‘In its simplest terms, the statement of case must at least inform the
Respondent party what the pertinent facts are on which the Applicant
will rely in the case, and further, what the cause of action is that the
Applicant will pursue as founded on these fa cts. That must be done in
sufficient particularity so as to enable the Respondent to provide a
proper answer to these facts and the related cause of action. The
statement of claim and the answering statement thereto are not just for
the benefit of the part ies. They also serve the court, in that the issues
in dispute are properly determined and other possible alternative
causes of action are eliminated from having to be considered by the
court. A proper statement of claim and answering statement are
imperati ve to the fundamental requirement of expeditious resolution of
employment disputes in terms of the LRA. As the court said in Harmse
v City of Cape Tow n:
“[6] The statement of claim serves a dual purpose. The one
purpose is to bring a Respondent before the court to
respond to the claims made of and against it and the
second purpose of a statement of claim is to inform the
Respondent of the material facts and the legal issues
arising from those facts upon which Applicant will rely to
succeed in its claims.
[7] The material facts and the legal issues must be
sufficiently detailed to enable the Respondent to respond,
that is, that the Respondent must be informed of the
nature or essence of the dispute with sufficient factual

5 (2015) 36 ILJ 677 (LC) at para 38.

and legal particularity so that it knows what it is that the
Applicant is relying upon to succeed in its claim. ”’

[5] In SA Breweries (Pty) Ltd v Louw6 (Louw ), the Labour Appeal Court (LAC)
was required to, inter alia , determine a complaint by the appellant 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 L AC held
that:7

‘[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 i s not always attainable, but the ground rules are
irrefrangible: say what you mean, mean what you 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 c ase 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 a nd 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 pretrial conference minute.
The complaint had been rais ed during the hearing and in
argument at the conclusion of the trial, considered by the court a

6 (2018) 39 ILJ 189 (LAC) .
7 Ibid at paras 4 – 5.

quo and dismissed. In our view, the complaint is justified and the
court a quo was in error. ’

[6] The LAC further held that :8

‘The relationship between the pleadin gs and the pretrial conference
minute has been the subject of several judicial pronouncements9. 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 chie f
objective of the pretrial 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 of 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 pretrial
conference is convened, counsel for the respective litigants have to
make choices about the ground upon which they want to contes t 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 legit imately advanced. Necessarily,
therefore, the strategic choices made in a pretrial conference need to
be carefully thought through, seriously made, and scrupulously

8 Ibid at para 8.
9 See: Price NO v Allied - JBS Building Society 1980 (3) SA 874 (A) at 882D - E; Zondo and others v
St Ma rtin’s School (2015) 36 ILJ 1386 (LC) at paras 10 – 11.

adhered to. It is not open to a court to undo the laces of the straitjacket
into which the litigants have confined themselves. ’

[7] In Louw , the LAC held that the mantra expressed in a statement of claim
where an applicant averred that his dismissal was both ‘procedurally and
substantively unfair’, is a stock phrase that 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 i t. The terms of the pre -
trial minute narrow the permissible grounds upon which the cause of action is
to be presented.

[8] In summary, a statement of claim must inform the defendant of the material
facts and the legal issues arising from those facts upon which the plaintiff will
rely to succeed in its claims. Those must be sufficiently detailed to enable the
defendant to respond and to be informed of the nature or essence of the
dispute. Each side must be given an unambiguous warning of the case they
are to meet.

[9] A plaintiff ’s pleaded case must be supported by evidence during the trial. As
was held in Harmse v City of Cape Town :10

‘[8] The rules of this court do not require an elaborate exposition of
all facts in their full and complex detail - that ordinaril y is the role
of evidence, whether oral or documentary. There is a clear
distinction between the role played by evidence and that played
by pleadings - the pleadings simply give the architecture, the
detail and the texture of the factual dispute are provid ed at the
trial. The pretrial conference provides an occasion for the detail
or texture of the factual dispute to begin to take shape. In terms
of rule 6(4) (b) the parties in the pretrial conference must attempt
to reach consensus on facts that are common cause, facts that

10 (2003) 24 ILJ 1130 (LC) at paras 8 – 9.

are in dispute, the issues that the court is required to decide and
the precise relief claimed.
[9] Accordingly the rules of this court antic ipate that the relief
claimed might not have been precisely pleaded in the statement
of claim filed. The rules of this court further anticipate that the
factual matters at issue will be dealt with more fully and
precisely in the [pretrial ] conference. The rules therefore
anticipate that the parties at the pretrial conference will have
dealt in much more detail not only with the factual matters but
also the legal issues. The statement of claim and response
thereto foreshadow this activity but are not a subst itute for it. It is
for this reason that the rule on pretrial conferences provides for
reaching consensus on the issues that the court is required to
decide. ’

[10] The issues raised by the Plaintiff must be considered against the backdrop
that pleadings give the architecture and that the evidence at the trial provides
the detail and texture.

The Plaintiff ’s pleaded case

[11] In h is statement of claim, the Plaintiff challenged the procedural and
substantive fairness of his dismissal. He also claims a shortfall in his notice
and severance pay.

[12] The parties signed a pre -trial minute , and the precise relief sought by the
Plaintiff is for an order to declare that hi s dismissal was procedurally and
substantively unfair and that he be paid the shortfall in respect of notice and
severance pay.

[13] I have alluded to the importance of pleadings . The Court does not provide its
own terms of reference or conduct its own enquiry into the merits of the case
but accepts and acts upon the terms of reference which the parties have
chosen and specified in their pleadings and narrowed in the pre -trial minute.


[14] I will deal with the issues pleaded and narrowed in the pre -trial minute in turn
infra.

The background facts

[15] The following background facts are common cause and provide context to the
issues this Court has to decide.

[16] Babcock International Group is a multin ational entity , and Babcock
International Group Africa has its head office at Riley Road, Bedfordview. The
Defendant is a subsidiary of Babcock Africa.

[17] In January 2007 , the Plaintiff was employed by Babcock Central Flying
Academy on a 12 -month fixed -term contract. The contract became a
permanent one in April 2008, when the Plaintiff was appointed as the Chief
Operating Officer of Babcock Central Flying Academy. The contr act provided
for termination in clause 2 thereof , which provided that:

‘The contract of employment may be terminated by either party giving
one month’s notice in writing on either the 1st or 15th day of the month. ’

[18] The Babcock Central Flying Academy was cl osed down during 2013 , and the
Plaintiff transferred to Babcock Equipment , with effect from 1 November 2013.
His job title changed to property manager: projects , and his previous terms
and conditions of employment remained the same.

[19] The Defe ndant’s undisputed evidence was that the aforesaid position was
created for the Plaintiff after the Babcock Central Flying Academy closed
down , as t he Defendan t was trying to keep the Plaintiff employed and to save
his job. At that stage , the Defendant was considering the upgrading of its
branch in Middelburg, Mpumalanga, and moving to new premises. The
Plaintiff was appointed as project manager to oversee the building of the new
premises in Middelburg and to assist with the renewal of lease agreements.

The Pl aintiff occupied the same position until his services were terminated in
2020.

[20] On 28 July 2020 , Babcock issued an invitation to consult in terms of section
189(3) of the LRA to the Plaintiff. The parties held consultation meetings on 3
August 2020 (first c onsultation), 31 August 2020 (second consultation), 28
September 2020 (third consultation) and 2 October 2020 (final consultation).

[21] The Plaintiff was advised on 2 October 2020 that he would be retrenched. He
did a handover , and his last day of service was 9 October 2020. He was not
required to work his notice period , and he was paid up until 9 November 2020.

[22] The Plaintiff holds an honours degree in mechanical engineering from the
University of Pretoria and a certificate in financial analysis from Wits. It was
undisputed that he had qualifications in engineering and finance and that he
has a predominant finance background.

Substantive fairness

[23] The Plaintiff challenges the substantive fairness of his dismissal and claims
that he should not have been dismissed . His pleaded case is that there was
no genuine operational requirement for his retrenchment and that his position
was not redundant, alternatively that the Defendant failed or refused to
consider him for available vacant, alternative positions and further
alternatively, the Respondent should have and could have applied bumping.

Was there a need to retrench?

[24] The first challenge is that there was no genuine operational requirement for
the Plaintiff’s retrenchment.

[25] The core business of Babcock Equipment , whe re the Plaintiff was employed,
is to sell equipment, commonly referred to as ‘yellow metal’, primarily to the
mining industry as well as to the construction industry and plant hiring

companies. The term ‘yellow metal’ is a widely used colloquial term, whic h is
not strictly defined , but it commonly refers to off -highway vehicles for the
construction, mining and agricultural sectors. It is a generic term used to
describe construction and earthmoving equipment. I n the context of this case,
it refers to earthmoving machines and equipmen t. Mr David Vaughan, the
managing director (MD) of Babcock Equipment, testified that the smallest
machine would cost in the region of R 500 000 and that the large machines
are sold for R 24 million per piece .

[26] Babcock is the licensed agent for Volvo earthmo ving equipment for Southern
Africa , and the Defendant sells yellow metal in Zambia, Botswana and
Namibia. The machines so sold come with a warranty , and the Defendant has
workshops to honour the warranty . The Defendant also services and repairs
the parts o r components of the Volvo machines sold. The Defendant do es the
repairs , and if it is a warranty issue, it would submit the claims to Volvo and be
reimburse d.

[27] In the section 189(3) notice , the Defendant recorded the reasons for the
proposed retrenchment a s follows:

‘1. Despite our best efforts to adjust our operations and reduce
costs as a result of the COVID -19 crisis, we have had to take a
number of further measures to safeguard the future of the
business during the poor economic environment. These cost
containment measures were outlined in the group C EO’s
communication dated 3rd July 2020, including the possible
reduction of a number of positions. It has unfortunately become
necessary for the Company to propose possible redundancy of
certain positions within the Group. As a consequence of such
redundan cies there’s possible retrenchment of certain
employees. Accordingly, the company wishes to consult with
you in relation to your role and your possible retrenchment.
2. Reasons for the proposed retrenchments:

2.1 The Covid -19 crisis has had a negative effect on
economic activity in all our major markets in both the
short and medium term, which has negatively impacted
our volume of work.
2.2 Looking forward we are facing a pessimistic trading
scenario and we need sufficient liquidity to carry us
through the poor economic environment, thus the
complete closure of certain branches and the combining
of Equipment’s Eastern and Southern regions.
2.3. The lack of work is affecting all our standard operations
and key projects, which has now forced the c ompany to
outsource and automate certain DAF operational
activities.
2.4 Reducing costs will safeguard our ability to perform and
transform, today and tomorrow thereby ensuring possible
future employment, this includes how we operate from
home and reduce d ependency on property leases.
2.5 As a result of the above, the Company proposes to re -
position its businesses. The positions that may be
affected by this process are identified in annexure “A”,
and it is proposed by the Company that these positions
be made redundant. ’

[28] In the pre -trial minute , Babcock indicated that there was a need to retrench
and recorded that:

‘The Applicant was one of a number of employees who were
retrenched due to the need by the company, as a result of the Covid 19
crisis, to reposition its business and to reduce costs in the poor
economic environment. ’

[29] The Plaintiff did not admit the need to retrench and stated that his dismissal
was not based on a bona fide economic rationale and that he was presented
with a fait accompli.


[30] The first issue this Court has to decide is whether there was a need to
retrench.

[31] Mr Vaughan testified that the Defendant had found itself in a very difficult
situation due to Covid , and Babcock International in London took a dec ision to
cut cost s worldwide as a result of the Covid crisis. He explained that the
Defendant used to deliver between 30 and 40 machines per month, but in
April 2020 , only one piece of equipment was sold.

[32] The Defendant’s primary client was the mining industry , and from April 2020 ,
the mines were standing still due to the COVID -19 lockdown measures and
no services were rendered. This meant that not only were machines not sold,
but the Defendant did not service or repair any of the Volvo machines in its
workshops and could not do any business in Zambia, Botswana and Namibia.
This had a negative impact on the Defendant’s economic activity and volume
of work.

[33] The Plaintiff testified that he had always questioned the rationale for
retrenchment. He was of the view tha t due to Babcock’s substantial market
share in the mining sector, the effect of Covid was not ‘as bad’ and that the
mining sector is always the first to bounce back. Although he took issue with
the financial information that was provided, the Plaintiff conceded that he
could see from the information provided to him that the Defendant was behind
its target and budget. He explained that it was to be expected due to the
COVID -19 crisis, but that the Defendant would bounce back very quickly.

[34] In my view , the nee d to retrench must be assessed considering the prevailing
circumstances at the time when the decision to retrench was taken. One
cannot take an armchair approach, many years later, and say that the need or
the rationale at the time was questionable or not real, based on the possibility
or ability to ‘bounce back’.


[35] At the time, the Defendant was confronted with a situation which could not be
ignored in assessing the need to retrench.

[36] On 15 March 2020 , the coronavirus pandemic was declared a national
disaste r in South Africa , and the government announced a package of
extraordinary measures to combat this grave public health emergency. On 23
March 2020 ,11 President Cyril Ramaphosa (President) announced a
nationwide lockdown for 21 days with effect from midnight on 26 March 2020,
which was to be enacted in terms of the Disaster Management Act12. The
three -week lockdown entailed that all South Africans were required to stay at
home, except a handful of categories of workers who were regarded as
necessary and essential in the response to the pandemic.

[37] The President made it clear that South Africa found itself confronted not only
by a virus that has infected m illions of people across the globe but also by the
prospects of a very deep economic recession that will cause businesses to
close and that will result in many people losing their jobs. As a first phase of
the government’s economic response, measures were announced , and these
interventions included support for persons whose livelihoods would be
affected.

[38] On 9 April 2020 ,13 the President announced that the National Coronavirus
Command Council decided to extend the nationwide lockdown by a further
two weeks beyond the initial 21 days , and the lockdown measures remained
in force until the end of April 2020.

[39] On 21 April 2020 ,14 the President announced economic and social measure s
in response to the COVID -19 epidemic. He confirmed that the coronavirus
pandemic had damaged the economy, resulting in a sudden loss of income

11 Statement by President Cyril Ramaphosa on escalation of measures to combat Covid -19 epidemic,
Union Buildings, Tshwane, 23 March 2020.
12 Act 57 of 2002.
13 Message by President Cyril Ramaphosa on Covid -19 epidemic, 9 April 2020.
14 Statement by President Cyril Ramaphosa on further economic and social in response to the Covid -
19 ep idemic, Union Buildings, Tshwane, 21 April 2020.

for businesses and individuals and that it was to continue in the months to
come.

[40] On 23 April 2020 ,15 the President announced that the nationwide lockdown
could not be sustained indefinitely , as people need to earn a living and
companies need to be able to produce and trade, they need to generate
revenue and keep their employees in employment. A gradual and phased
recovery of economic activity was announced to commence after 30 April
2020 , when the lockdown restrictions were eased gradually. The President
announced that as of 1 May 2020 , the country would operate on alert level 4,
which allowed some businesses to resume operations under specific
conditions, including that they would not be able t o return to full production
and the workforce would only be able to return in limited batches.

[41] On 13 May 2020 ,16 the President announced that by the end of May 2020 ,
most of the country would be placed on alert level 3 , and this was confirmed
on 24 May 202017. It ha d been said over and over that the COVID -19 crisis
present ed an unprecedented challenge, unmatched since the Spanish Flu
and the Great Depression. It has depressed global economies and caused a
material shrink age in global trade .

[42] During this period , international and inter-provincial travel was not allowed or
was strictly limited , and business es did not operate as normal. The restrictions
on travel continued much longer.

[43] The COVID -19 pandemic had hit the world and South Africa without much
warning and there was not much time between the declaration of the state of
disaster and the announcement of the lockdown for companies to plan or
budget for the most unforeseen event, which transpired to hit even harder and
with more brutal force than what was initially expected or anticipated.

15 Statement by President Cyril Ramaphosa on South Africa’s response to the Coronavirus pandemic,
Union Buildings, Tshwane, 23 April 2020.
16 Statement by President Cyril Ramaphosa on South Africa’s response t o the Coronavirus pandemic,
Union Buildings, Tshwane, 13 May 2020.
17 Address by President Cyril Ramaphosa on South Africa’s response to the Coronavirus pandemic,
Union Buildings, Tshwane, 24 May 2020.


[44] Modern businesses and entities are part of a global value chain and do not
operate in a static environment. It is almost impossible to escape the ripples
caused by a shock induced in the global system, desirable or otherwise.
These shocks would leave a mark on the size and shape of many business
entities , and a s a result, they need to reinvent themselves.18 This was indeed
true about the Covid pandemic , which had hit the world and affected many
economies, business entities and individuals.

[45] It was within this context that the Defendant had to reconsider , reposition and
adjust its business operations .

[46] In my view, there was a rationale to retrench.

Redundancy

[47] The second issue taken with substantive fairness is that the Plaintiff’s position
was not redundant, alternatively that Babcock failed or refused to consider
him for available vacant alternative positions , further alternatively that the
Defendant should have and could have applied bumping as the Plaintiff had
longer service than a number of other employees and he had the required
skills, experience and expertise to be bumped into their positions, but
Babco ck failed or refused to do so.

[48] The LRA defines a dismissal based on the operational requirements of an
employer as one that is based on the economic, technological, structural or
similar needs of the employer. In the ‘Code of Good Practice on Dismissal
Based on Operational Requirements’19 (Code) , a dismissal based on
operational requirements is understood to include a dismissal as a result of
redundancy due to a restructuring of the workplace. The redundancy of posts
consequent to restructuring is regarded as a structural need of the employer.


18 R Le Roux ‘Retrenchment Law in South Africa’ , (LexisNexis) pp 1 -3.
19 Published under GN 1517 in GG 20254 of 16 July 1999.

[49] The Code suggests that an employer’s structural needs imply that posts have
become redundant as a result of restructuring. An employer has the right to
decide how to run its business , and the employer does not need the
employees’ permission or blessing to mak e such a policy shift to
accommodate its operational requirements. An employer does not need to
consult on the decision to restructure , but where the new structure is
advanced as a reason for retrenchment, the affected employees must be
consulted.

[50] The Defe ndant made it clear that the COVID -19 crisis has had a negative
effect on its economic activity in both the short and medium term, which ha d
negatively impacted Babcock’s volume of work . Mr Vaughan explained that
the aforementioned process of identifying a ffected positions is what was
referred to as ‘re-positioning ’ in paragraph 2.5 of the section 189(3) invitation
to consult. It stated that:

‘As a result of the above, the Company proposes to re -position its
businesses. The positions that may be affected by this process are
identified in annexure “A”, and it is proposed by the Company that
these positions to made redundant. ’

[51] Mr Vaughan testified that after Babcock in London took the decision that costs
must be cut due to Covid, the Defendant had t o consider the positions they
could do without, without hurting the business. The Defendant identified such
positions and they were listed in ‘Annexure A’ to the section 189(3) invitation
to consult. A total of 38 affected positions were identified and ult imately , 22
employees were retrenched.

[52] The MD explained that the affected positions were identified in an EXCO
meeting where all the MD’s were together, after he had a meeting with his
own management team to identify positions that they could do without, which
would not hurt the business operations as a whole . In the Exco meeting , they
considered positions or functions which could be combined with other
positions, they looked at the amalgamation of positions , and they identified

the positions which the business could do without. They identified various
positions which were duplicated and could be combined, without hurting the
business.

[53] To the extent that the Plaintiff seeks to infer some unfairness in the process
followed by Babcock in identifying t he affected positions prior to the
commencement of the consultation process, the LAC has held in SAA v
Bogopa and Others20 (Bogopa ) that where the employer made the decision to
declare the employees’ positions redundant before there could be
consultation w ith them, it was procedurally wrong. Whether something was
procedurally wrong is different from the question of whether it was
procedurally unfair. In Bogopa , the LAC considered a case where the
employees’ positions were declared redundant before the consu ltation and i t
was held that21:

‘There may well be circumstances where the consultation offered after
the declaration is even fairer than the consultation to which such
employee was entitled before the declaration. In such a case, if the
employee rejects an offer of such consultation, and a dismissal follows,
the dismissal might not be procedurally unfair… However, where the
employee agrees to consult with the employer after the employer has
declared his position redundant prior to consultation, th e procedural
fairness or otherwise of any subsequent dismissal would depend
largely on what happens during the consultation process. ’

[54] In Fletcher v Elna Sewing Machine Centres (Pty) Ltd22, a similar sentiment
was expressed:

‘In my perception, there can be few employers who, having identified,
as they are fully entitled to do, the necessity for a valid and bona
fide reason to reorganize, restructure or in some other manner,

20 [2007] 11 BLLR 1065 (LAC).
21 Ibid at para 44.
22 (2000) 21 ILJ 603 (LC) at para 39.

redefine their business operations, will not have decided in principle
what they p erceive is the optimum method of doing so. What I consider
to be the legitimate purpose of consultation with employees who might
thereby be affected therefore, is not to assist them in making up their
minds, but to determine, by way of consensus, whether t here is any
practical and viable basis for changing them. There is, to my mind,
nothing unfair in that concept. In its broad context, it is a realistic and
prevailing phenomenon of commercial life.’

[55] In casu , the Plaintiff’s position was identified as a position that ‘may be
affected’ by a proposed repositioning exercise , and it was proposed to be
made redundant. It is evident from the section 189(3) invitation that the
positions as identified in ‘annexure A’ there to were not declared redundant,
but rather were identified as possibly affected and proposed to be redundant.
Babcock identified the position as one they could do without as the position
‘looked after leases and projects ’ only, and at that point, the lease s slowed
down dramatically , and there were no new projects which required project
management. Mr Vaughan explained that the Middelburg project was done ,
and the reality was that th is position was specifically created for the Plaintiff to
absorb him after h e was transferred from the flying academy . The functions
performed by the Plaintiff could be absorbed into Mr Ward’s position , part of it
could be handled by the Head Office , and the commercial directors in the
southern and northern regions could also assist with the functions . The said
functions related to the renegotiation of lease agreements and identifying
premises.

[56] The MD made it clear that the position previously held by the Plaintiff no
longer exists and will not exist in the future , as the position was no longer
required.

[57] In cross -examination , it was put to him that the Plaintiff’s position was not
redundant because the property portfolio remained. Mr Vaughan agreed that
the property portfolio remained , and he explained that the pos ition was
redundant, but the functions remained , and those remaining functions were

distributed to other employees to perform them. He testified that prior to the
Plaintiff’s transfer from the flying academy, Babcock had new projects and
leases, which were successfully managed by other employees. The position
was created for the Plaintiff to accommodate him , but the functions were
previously handled by other employees , and it is currently again handled by
other employees.

[58] Mr Vaughan reiterated that the post of property manager no longer existed in
the Defendant’s organogram or HR system. He conceded that the ‘task is
there, but the position no longer exists’ and that the task is performed by other
employees.

[59] The Plaintiff’s pleaded case is that his positio n was not redundant. In National
Union of Mineworkers and Others v Free State Consolidated Gold Mines
(Operations) Ltd President Brand Mine23, the meaning of redundancy was
considered:

‘According to The Oxford Dictionary the meaning of 'redundant' (which
is an adjective) is superfluous, excessive or, in the case of an
employee or his post, liable to be dispensed with because it is no
longer necessary. The noun is 'redundancy'. On the other hand,
'retrench' (which is a verb) means cut down, reduce amount of
(especially expenses), economize, reduce expenses. The noun is
'retrenchment'. It follows that one can only retrench someone or
something that is redundant. One cannot 'redund'.
Support for my view is to be found in Brassey et al The New Labour
Law. Chapter 8, written by Halton Cheadle, deals with retrenchment. At
279 he says 'retrenchment means dismissal because the employee is
redundant. The redundancy can be caused by the introduction of new
technology, the reorganization of the enterprise, the rationalization
consequent upon a merger, or a drop in production caused by an
economic downturn or any number of other circumstances ' (emphasis

23 (1994) 15 ILJ 1161 (IC) at 1165I – 1166D.

added). He points out that in English law the term retrenchment is not
used. The phrase 'dismi ssal for redundancy' is employed instead. He
refers to the English statute which reinforces his view.
Whether a business is closing down completely, or just doing badly, if it
is necessary to reduce the workforce they will be retrenched and the
reason wil l be because they or their jobs have become redundant. The
fact that in the one case the job loss may be permanent and in the
other not, does not alter the fact that the workers are being retrenched. ’

[60] In Plaaslike Oorgangsraad van Bronkhorstspruit v Seneka l24, the Supreme
Court of Appeal considered the meaning of redundancy. The majority held
that:

‘[24] Myns insiens moet aan die begrip oortolligheid ('redundancy') 'n
wye betekenis gegee word. Die voor die hand liggende geval
van oortolligverklaring kom voor waar die werkgewer sy bedryf
sluit of afskaal, met die gevolg dat poste verdwyn. Maar die
begrip slaan klaarblyklik ook op 'n herorganisasie van 'n bedryf
of onderneming waar 'n spesifieke werknemer , om operasionele
of ander re des, in die slag moet bly. Dit is wat in die
onderhawige geval gebeur het. In National Union of
Mineworkers is met goedkeuring verwys na Brassey et al The
New Labour Law op 279:
'[R]etrenchment means dismissal because the employee
is redundant. The redunda ncy can be caused by the
introduction of new technology, the reorganization of the
enterprise, the rationalization consequent upon a merger,
or a drop in production caused by an economic downturn
or any number of other circumstances .' (Beklemtoning
bygevo eg.)
[25] Ek meen nie dat daar 'n numerus clausus van omstandighede,
wat tot oortolligverklaring kan lei, bestaan nie. …’

24 (2001) 22 ILJ 602 (SCA).


[61] In the minority judgment , it was held that:

‘[7] I turn to consider what is meant by the expression 'having been
declared redundant or having been retrenched'. I am unable to
agree that the words 'redundant' or 'retrenched' should be given
a wide or extensive interpretation. The context requires that they
should be given their ordinary dictionary meaning. That is how
the word s have been construed in this court. In West Rand
Bantu Affairs Administration Board v Jaques 1976 (4) SA 903
(A) Van Winsen AJA said the following at 911D -E:
'There is no reason to suppose, regard being had to the
context in which the word is used in the Act, that the
Legislature intended to use the word "redundant",
translated in the Afrikaans text - which is the signed one -
by the word "oortollig", in any meaning other than its
ordinary dictionary meaning. In English "redundant" is
defined in The Shorter Oxford English Dictionary as
"superabundant, superfluous, excessive" and "oortollig" is
assigned the meaning in HAT: Verklarende
Handwoordeboek van die Afrikaanse Taal , of "meer as
wat nodig is, wat gemis kan word".'
In Consolidated Frame Cotton Corporation Ltd v President of the
Industrial Court & others 1986 (3) SA 786 (A) ; (1986) 7 ILJ 489
(A) it was said at 797J -798A:
“To retrench in the present context means to cut down, to
reduce, the numbers of the work force because of
redundancy - a super fluity of employees in relation to the
work to be performed. Retrenchment does not
necessarily involve the abolition of "posts"; the employer
may merely lay off a number of his employees. ”
[8] Redundancy and retrenchment are sometimes used
interchangeably . They both involve the dismissal of an
employee because of a reduction in the employer's workforce,

whether because of the abolition of a post or because the
employees are superfluous for the employer's requirements. In
Barker & Holtzhausen SA Labour Glos sary , the following
definitions are given:
“[R]edundancy (oortolligheid ) Reduction in the labour
force of a firm for reasons for which the employees are
not responsible, eg the closure or transfer of the place of
work, the introduction of new technology or a reduction in
the demand for certain categories of employees. There is
thus a surplus of labour to be made redundant. This is
normally referred to as dismissal for reasons based on
the employer's operational requirements. Sometimes
distinguished from retrenchment. ”
“[R]etrenchment (personeelaflegging,personeelbesnoeiin
g) The dismissal of employees for reasons connected
with economic, technological, structural or similar
requirements ( see operational requirements). Often used
interchangeably with redundancy , but in some countries,
eg the USA, retrenchment refers to the adoption of a
smaller scale of operations in an organization, which may
result in lay-off as part of the effort to reduce the
workforce. ”
According to OED vol XIII 'redundant' means 'superabundant,
superfluous, excessive' (at 429) and 'retrench' (at 792) means 'to
cut down, reduce, diminish in extent, amount or number'. The
dictionary meanings coincide with the manner in which this court
has interpreted the words and with the way in which the
expressions would ordinarily be understood, ie a reduction in the
labour force. ’

[62] Considering the aforementioned authorities and the evidence placed before
this Court, it is evident that the position of project manager, previously held by
the Plaintiff, indeed became redundant.


Alternative positions

[63] Having found that there was a genuine operational ra tionale for retrenchment
and that the Plaintiff’s position was indeed redundant, it is necessary to
consider his case in the alternative - that is, that Babcock failed or refused to
consider him for available vacant alternative positions.

[64] In the pre -trial minute , the Plaintiff’s case is recorded as that the Defendant
failed and/or refused to properly consider and/or explore the ‘viable
alternatives to retrenchment’ he had proposed , being vacant positions which
existed at the time and the application of bump ing. I will deal with bumping
infra.

[65] During the trial , it became evident that there were no vacant alternative
positions available. This was even conceded by the Plaintiff during
consultation 2 . Mr Vaughan indicated that there were no vacancies and the
Plaintiff responded that: “I have looked on the intranet and David there are no
vacancies apparently in this group or none that I have seen published ”. Mr
Vaughan then confirmed that to be the position as ‘everything is on hold’ and
was ‘frozen’ at the time.

[66] In my view , there is no merit in the Plaintiff’s case that the Defendant failed or
refused to consider him for available vacant alternative positions. The
evidence adduced showed that there were no vacant alternative positions
available.

[67] In the pre-trial minute , the Plaintiff indicated that someone else should have
been selected for retrenchment in his place , and he listed Mr Grant Sheperd
and Mr Jonathan Howe, who should have been selected for retrenchment
through the process of bumping , as the Plaintiff had longer service than they
had. He also listed Mr Mannie Augistino and Ms Beulah Ferreira, who were
due to retire.


[68] During the trial, Mr Short, for the Plaintiff, attempted to distinguish between
the positions of Messrs Sheperd and Howe, as bei ng positions relevant for
purposes of bumping , and Mr Augistino and Ms Ferreira as being ‘alternative
positions ’.

[69] The difficulty is with the Plaintiff’s pleaded case. His case is that Babcock
failed or refused to consider him for available vacant alternat ive positions
which existed at the time. The Plaintiff could not point to any alternative
vacant position which was available at the time, as per his pleaded case.
Instead, his case was that Mr Augistino and Ms Ferreira were due to retire
and that Babcock should have offered these positions to him. If they were
indeed ‘alternatives’, they were not ‘available vacant positions’.

[70] There is , in any event , no merit in this claim. The undisputed evidence was
that Mr Augistino was Babcock’s national technical manag er, with more than
40 years of experience in the industry. All technical specialists reported to
him, and his position was a key technical position. Mr Augustino was sent on
more than 100 courses on the Volvo machines , and he was highly technical
and speci alised in Volvo. The Plaintiff did not attend a single course on Volvo ,
and Mr Vaughan was clear in his evidence that the Plaintiff did not have the
necessary skills, experience , and qualifications to be placed in the position of
national technical manager. He explained that although the Plaintiff is a
mechanical engineer, the position does not require a mechanical engineer,
but it requires someone who is ‘Volvo technical’, which is different from being
a mechanical engineer. Babcock could not put someone in that division who
does not have the required skills.

[71] In cross -examination , it became clear that the Plaintiff was not pursuing his
claim in respect of Mr Augistino’s position.

[72] Ms Ferreira was primarily a store manager, doing stock control. She was
employed on a fixed -term contract, but she passed away due to Covid before
the expiry of her contract. After Ms Ferreira’s passing away, her position was
scrapped , and it was merged w ith the position of Hans Roos. Mr Vaughan

testified that the Plaintiff never performed the function of store manager or
supply chain management. During his evidence , it became clear that the
Plaintiff was not pursuing his claim in respect of Ms Ferreira’s position as he
was of the view that it was too operational for him and he wanted a position
on a higher, more strategic level.

Bumping

[73] The Plaintiff’s further alternative case is that the Defendant should have and
could have applied bumping as he had longer service than a number of other
employees , and he had the required skills, experience , and expertise to be
bumped into their positions, but Babcock failed or refused to do so.

[74] In the pre -trial minute , the Plaintiff listed Mr Grant Sheperd and Mr Jonathan
Howe to have been selected for retrenchment through the process of bumping
as he had longer service than they had.

[75] During the trial, the Plaintiff did not persist with his claim in respect of Mr
Howe , and the only question which remains is whether bumping should have
been applied in respect of Mr Sheperd.

[76] Before I deal with the aforementioned question, it is prudent to first consider:
What is bumping?

[77] In Amalgamated Workers Union of SA v Fedics Food Services25, the Court
considered bumping and held that:

‘[3] This brings me to the question of precisely what 'bumping' is. M
H Cheadle 'Retrenchment: The New Guide -lines ' (1985) 6 ILJ
127 at 137, says the following:
“The LIFO principle is to retain long -serving employees at
the expense of those with shorter service in like or less

25 (1999) 20 ILJ 602 (LC).

skilled categories of work. Accordingly, LIFO would not
apply to employees in a different grade if the longer -
serving employee could not do the work of the employee
with shorter service in that grade. The principle, if not
qualified by agreement, should apply throughout the
establishment or the collective bargaining unit provided
that it falls within like or lesser categories of work. In other
words, should an employee with long service be made
redundant in one department he should be transferred to
a similar post elsewhere in the establishment, even
though it may be occupied by an employee with shorter
service. Should there be no such post, the pr actice is to
offer the longer -serving employee a less skilled position
occupied by employees with shorter service. This
procedure is graphically called "bumping". In short, one
"bumps" sideways and down. The restriction of this
principle to departments can lead to abuse. Long -serving
employees can be transferred to departments where
redundancy is expected and thereby retrenched at a later
stage. Such a practice would clearly subvert the objective
application of the principle. ”
[4] 'Bumping' as a practice h as been accepted in the Labour Appeal
Court. See Reckitt &Colman (SA) (Pty) Ltd v Bales (1994) 15 ILJ
782 (LAC) ; [1994] 8 BLLR 32 (LAC), where the following is said,
at 46G -H:
“Whilst every case must be considered on its merits,
there is no immutable rule that in applying the LIFO
principle, an employee should not be downgraded.
Indeed as appears from the article by Cheadle
"Retrenchment: The New Guide -lines" (1985) 6 ILJ 127 at
137-8, in reallocating of posts, as between employees on
the LIF O principle, there may be a process of "bumping"
both sideways and down. This is sometimes also referred
to as horizontal and vertical "bumping".

See Contemporary Labour Law vol 2 no 1 (August 1992)
at 8-10 and vol 2 no 8 (March 1993) at 1991. ”’

[78] In respect of bumping , the LAC found in Porter Motor Group v Karachi26
(Karachi) that:

‘[15] The Code of Good Practice on dismissal in schedule 8 to the Act
deals with selection criteria and lists length of service, skills and
qualifications as generally accepted considerations. Selection
criteria laid down by case law, in addition to the three factors
mentioned, for determining which employees are to be
retrenched, would include the employee's competence and
merit; technical knowledge or experience; condu ct; service
record; age; and gender.
[16] Early mention of bumping in South African labour law comes
from Professor H Cheadle's article 'Retrenchment: The New
Guide -lines' (1985) 6 ILJ 127 at 137, and this article has been
considered in a number of decis ions and has received some
academic attention. See inter alia Reckitt & Colman (SA) (Pty)
Ltd v Bales (1994) 15 ILJ 782 (LAC), Amalgamated Workers
Union of SA v Fedics Food Services (1999) 20 ILJ 602
(LC), SACCAWU & others v Wimpy Aquarium [1998] 9 BLLR
965 (LC) at 969E -F, Unilever SA (Pty) Ltd v Salence [1996] 5
BLLR 547 (LAC) at 557, Shangase & others v BKB Ltd (1999)
20 ILJ 2475 (CCMA) , Fisher v Sylko Paper Co (1998) 8 Arb
5.2.2, Nyathi & others v Queensburgh Equipment Rental NHN
11/2/3939 (1992) (IC), Professor Alan Rycroft's article 'Bumping
as an Alternative to Retrenchment' (1999) 20 ILJ 1489 and Le
Roux & Van Niekerk The SA Law of Unfair Dismissal . In
determining a fair selection of employees for
retrenchment bumping has often been implemented and the
following principles have developed in relation thereto. This

26 (2002) 23 ILJ 348 (LAC).

does not purport to be an exhaustive list and merely catalogues
the rules laid down which are relevant to this case.
(1) It should be reiterated once again that fairness is not a
one-way street. It must accommodate both employer and
employee. Section 189(2) of the Act requires both parties
to attempt to reach consensus on alternative measures to
retrenchment, so there is a duty on an employee as well
to raise bumping as an alternat ive. An employer is
obliged to consult with an employee about the possibility
of bumping.
(2) Bumping is situated within the 'last in first out' (LIFO)
principle which is itself rooted in fairness for well -
established reasons. Longer serving employees have
devoted a considerable part of their working lives to the
company and their experience and expertise are an
invaluable asset. Their long service is an objective tribute
to their skills and industry and their avoidance of
misconduct. In the absence of othe r factors, to be
enumerated hereinafter, their service alone is sufficient
reason for them to remain and others to be retrenched.
Fairness requires that their loyalty be rewarded.
(3) The nature of bumping depends on the circumstances of
the case. A usefu l distinction is that of dividing bumping
into horizontal and vertical displacement. The former
assumes similar status, conditions of service and pay and
the latter any diminution in them.
(4) The first principle is well established, namely that
bumping s hould always take place horizontally, before
vertical displacement is resorted to. The bumping of an
individual, in the absence of the other relevant factors,
seldom causes problems and the fact of longer service
establishes the inherent fairness thereof.
Vertical bumping should only be resorted to where no
suitable candidate is available for horizontal bumping.

Where small numbers are involved the implementation of
horizontal or vertical bumping should present few
problems.
(5) Where large -scale bumping, sometimes referred to as
'domino bumping', necessitates vast dislocation,
inconvenience and disruption, consultation should be
directed to achieving fairness to employees while
minimizing the disruption to the employer. Examples of
disruption include diffi culties caused by different
pay levels, client or customer reaction to a replacement of
employees and staff incompatibility. In evaluating the
competing interests of the employer and the affected
employees the consulting parties should carry out a
balancin g exercise. Where minimal benefits accrue to
employees, while vast inconvenience is the lot
of employers, fairness requires that fewer employees
should move.
(6) There will always be geographical limitations to bumping
in that fairness will require that li mits be placed on how
far an employee is expected to move to bump another.
Although prejudice to the employer in long-distance
relocation cannot be excluded, in practice this will be
rare. Generally speaking it is the employee who will suffer
as a result o f being removed from a cultural and social
environment he or she has become accustomed to.
Second guessing the desires of employees is
undesirable; if they are happy to translocate then
bumping should take place whatever the distances
involved.
(7) The poo l of possible candidates to be bumped should be
established and the circumference thereof will depend on
the mobility and status of the employees involved. The
managerial prerogative entails moving employees to the
best advantage of a company within the pa rameters of its

activities, national or international; fairness requires that
the same circumference should define the limits of
potential candidates to be bumped. The career path of
the employee in the company will often be a useful
indication of scale of mobility.
(8) The independence of departments as separate business
entities may be relevant but the argument that a
company's departments are managed separately should
be strictly scrutinized. Even if there is no past practice of
transferring between bran ches or departments, the
employer must consider interdepartmental
bumping unless it is injurious to itself and to other
employees.
(9) Bumping does not apply to employees in a different grade
if the longer serving employee cannot do the work of the
employe e with shorter service in that grade. This
limitation applies most frequently where
competence, technical or professional knowledge or
experience and specialised skills are involved. Where the
necessity arises of retraining those, who are transferred,
this should be carried out, unless it places an
unreasonable burden on the employer.
(10) The status of the post into which an employee is bumped
is relevant, as the employer's prerogative to choose
someone of managerial/supervisory level should be
respected. Management concerns that downgrading an
employee will be demoralizing will not justify a decision
not to bump downwards where the employee is prepared
to accept downgrading. On the other hand the
unwillingness of the affected employee to accept a lower
wage may justify not bumping. ’


[79] In Mtshali v Bell Equipment27 (Mtshali) , the LAC held that LIFO (last in, first
out) as a method of selection entails that employees are selected for
retrenchment according to the period they have been with the employ er. It
simply means that employees who have served for a shorter period would be
higher on the list of those likely to be retrenched. Although it has its own
difficulties, LIFO is still regarded as the most objective and fair method of
selecting employees. The LAC confirmed that bumping is situated within the
LIFO principle .

[80] This means that whenever LIFO is the agreed criterion, bumping must be
applied as a selection criterion.

[81] The issue of bumping is also relevant for purposes of the Plaintiff’s challenge
to procedural fairness, and I will deal with th at aspect when considering
procedural fairness infra.

[82] The Defendant’s evidence was that Mr Sheperd is employed as regional
manager : export , and he is responsible for the export regions. Mr Sheperd
was appointed in 2013 , and he was responsible for the Defendant’s new
SDLG unit, which was set up at the time. SDLG is equipment that was
sourced from China, as the Volvo equipment was too expensive for a certain
segment of the market.

[83] Mr Vaughan testified tha t prior to joining the Defendant in 2013, Mr Sheperd
had been employed with Daimler for many years, where he had sold trucks
and worked in five African countries . After that, he was employed by Volvo,
where he sold Volvo trucks and was responsible for eight African countries.
Mr Sheperd was employed by the Defendant in 2013 as he had experience in
selling trucks, he was already selling to Babcock’s clients , and he was used to
doing business in Africa. He still occupies the same position , and he has good
and established relationships in inter alia Zambia, Namibia and Botswana ,
and he does very well in his position.

27 (DA16/12) [2014] ZALAC 37 (22 July 2014) at par as 21 and 22.


[84] Mr Vaughan testified that Mr Sheperd could not be bumped as he was
experienced in selling trucks and doing business in Africa, which was a
complex and challenging market. The Plaintiff never held such a position , and
he has no experience in dealing with the African markets.

[85] The MD explained that the Plaintiff was academically qualified as a
mechanical engineer and he has no experience in selling, doing business in
Africa or yellow metal. Mr Sheperd was working with trucks, yellow metal and
in the African market since 2000. It was the Defendant’s case that the Plaintiff
did not possess the skills and experience to fulfil a regional manager’s
positio n.

[86] The Plaintiff’s version was that he could have been bumped into Mr Sheperd’s
position because he was exposed to equipment since 2007, when he joined
the flying academy, that the plant was not rocket science , and he was , after
all, an engineer with a di verse skill set. The Plaintiff testified that he had
crossed paths with the export division. His evidence was that he was
financially and technically competent to do Mr Sheperd’s job because ‘nobody
is better suited to deal with engineers than an engineer and he is holistically
well-rounded ’.

[87] In Karachi , the LAC confirmed that bumping does not apply to employees in a
different grade if the longer serving employee cannot do the work of the
employee with shorter service in that grade. This limitation applies most
frequently where competence, technical or professional knowledge or
experience and specialised skills are involved .

[88] In my view , the same principle applies in casu.

[89] The Plaintiff could not show, on a balance of probabilities, that he had the
required skills and experience to justify the bumping of Mr Sheperd. The
Plaintiff could not convince this Court that he had the experience and skills
which were required to perform Mr Sheperd ’s position. It was undisputed that

the Plaintiff had qualifications in engineering and finance and that he has a
predominant finance background, but this is not what was required to perform
the job of regional manager: export.

[90] For the reasons recorded supra, I cannot find that the Plaintiff’s dismissal was
substantively unfair.

Procedural fairness

[91] The Plaintiff’s pleaded case is that his dismissal was procedurally unfair
because his retrenchment was presented as a fait accompli and because the
Defendant failed and/or refused to share sufficient information and/or engage
with him so as to allow him a proper opportunity to consult in respect of the
reason for the restructure, alternatives to his retrenchment and his severance
benefit.

[92] In the pre -trial minute , it was recorded that this Court should decide the issue
of procedural fairness by making findi ngs as to whether the Plaintiff’s
retrenchment was presented as a fait accompli and whether the Defendant
failed and/or refused to share sufficient information and/or engage with the
Plaintiff so as to allow him a proper opportunity to consult in respect o f the
reason for the restructure, alternatives to his retrenchment, the method for
selecting the employees to be dismissed and his severance benefit.

[93] It is evident that the Plaintiff’s pleaded case did not include a complaint that
he was not consulted in r espect of the method for selecting the employees to
be dismissed. This was added in the pre -trial minute. Such cannot be
permitted.

[94] In Louw, the LAC made it clear that a pleading binds the pleader, subject only
to the allowing of an amendment, either by ag reement with the adversary, or
with the leave of the court. The case pleaded cannot be changed or expanded
by the terms of a pre -trial minute and if it does, it is necessary that that
change go hand in hand with a necessary amendment. The chief objective o f

the pre -trial conference is to agree on limiting the issues that go to trial.
Properly applied, a typical pre -trial minute will shrink the scope of the issues
to be advanced by the litigants.28 I will consider the Plaintiff’s pleaded case on
procedural fairness.

[95] In my view , the pleaded challenge to procedural fairness is twofold – one is
that there was no genuine consultation process and that he was presented
with a fait accompli , and the second relates to the sharing of information,
which deprived the Plaintiff of an opportunity to consult on certain aspects. I
will deal with them in turn.

Was there disclosure of information?

[96] The Plaintiff challenge s procedural unfairness on the ground that the
Defendant failed or refused to accede to the request to disclose relevant
information, as contemplated in section 189(4) of the LRA. The Plaintiff’s
pleaded case is that the Defendant failed or refused to share sufficient
information , and this deprived him of an opportunity to properly engage and
consult on the reasons for the restructur ing and alternatives to retrenchment.

[97] The Plaintiff s’ case is that , at the first consultation meeting held on 3 August
2020, he was informed that his position was redundant, and he proposed
positions for which he could be considered, but the Defendant was dismissive
of his proposals. He reiterated that he questioned the rational e for
retrenchment , and in the second consultation meeting of 31 August 2020, he
requested the financial statements for Babcock Equipment from April to July
2020. The Plaintiff’s case is that the mining sector had practically recovered
from the imposed lock down , and as the equipment division was deeply
correlated with the mining sector, analyst opinions predicted a buoyant year
ahead for the said sector. The Plaintiff requested the financials, as referred to
supra, so that he could get some insight into the business and see how bad
things really were. He stated that he always had access to the financial

28 Louw supra at para 8.

information and that he was in possession of the detailed financial accounts
for the 2020 financial year, which had ended in March 2020.

[98] The Plaintiff explain ed that he had requested the detailed financial
information , as that would give him an opportunity to drill into the issues of
profitability and to see in which divisions there were the most problems. He
also asked about the financial impact of the propose d retrenchment on the
payroll. On 31 August 2020 , Mr Ward sent him a document, which was a
screenshot of flash results for Babcock Equipment. The Plaintiff explained that
it was a snapshot for the period April to July 2020 , and it was not the
document he requested or expected , as he had always been provided with
the full financial details.

[99] The Plaintiff testified that he was expecting an Excel spreadsheet with the
financial information of all the branches, which would have e nabled him to
look at profits, losses and problem areas. Instead, he was provided with a
snapshot of the Defendant’s financial position. He explained that he could see
from the information provided that Babcock was behind target, but this was
expected due to COVID -19. According to the Plaintiff, Babcock would
‘rebounce ’ very quickly and although the Defendant was behind forecast and
budget, there was a R 24 million profit.

[100] The Plaintiff testified that he had requested the full financial information for
April to July 2020, and later he also requested for August 2020, but it was
never provided , and no reason as to why it was not given to him.

[101] In the third consultation meeting of 28 September 2020, Mr Vaughan referred
to the Plaintiff’s request for financial information, which was not given to him
and said that ‘so the process has carried on and it is nearly, I think nearly at
the end now. So the company feels that to show you all the financial
information at this point is kind of irrelevant ’. Mr Vaughan furth er said that ‘So
whilst the exercise, a by -product I suppose and obviously if you need people
going you do the cost saving, but it is a repositioning of the company etcetera.
So that is why I do not think that a whole lot of financials and you studying a

lot of financials is actually going to impact the situation or it is going to, we
think it will not be really relevant. That is the thought at this stage ’. The
Defendant’s position was that the retrenchment was more of an exercise of
business repositioning than cost -cutting.

[102] It is evident from the section 189(3) notice that Babcock recorded the reasons
for retrenchment as: despite the best effort to adjust operations and reduce
costs as a result of the COVID -19 crisis, they had to take a number of
measures to safeguard the future of the business during the poor economic
environment, cost containment measures included the possible redundancy of
certain positions, which could result in the retrenchment of certain employees,
COVID -19 had a negative effect on economic activity in the major markets,
Babcock needed sufficient liquidity to carry them through the poor economic
environment, the lack of work affected all standard operations and key
projects, reducing costs would safeguard the Defendant’s a bility to perform
and transform and as a result of all the aforementioned, Babcock proposed to
re-position its business.

[103] Notwithstanding the efforts by the Defendant to paint a picture that the reason
for retrenchment was not only for economic and financia l reasons, but that it
was also a restructuring exercise which had little to do with its financial
position, I am of the view that the reason for retrenchment was indeed the
poor economic environment and the financial challenges Babcock faced as a
result t hereof. The re -positioning of the business was not a self -standing
restructuring exercise, divorced from any economic considerations, but in fact,
it was directly linked to and as a result of the financial challenges faced by
Babcock at the time and as a r esult of the COVID -19 crisis.

[104] It is evident from the facts placed before this Court that the Defendant did not
absolutely refuse to make the requested financial information available , but
indeed agreed to make it available. The information that was made available
on 31 August 2020 was , however , not what the Plaintiff requested or expected
to receive .


[105] The question is whether the information that was provided was sufficient for
purposes of meaningful consultation and whether the failure to provide the
detailed information requested renders the Plaintiff’s retrenchment
procedurally unfair.

[106] Section 189(3) of the LRA obliges the employer to 'disclose in writing to the
other consulting party all relevant information, including, bu t not limited to' the
information listed in paras (a) -(h). The use of the words 'including, but not
limited to' makes it clear that the information which must be disclosed in
writing to the other consulting party is not confined to the listed information -
all relevant information must be disclosed .29

[107] Section 189(4) provides that the provisions of section 16 of the LRA apply,
read with the changes required by the context, to the disclosure of information
in terms of s ection 189(3). Section 16 is a general provision governing the
disclosure of information. Section 16(3) provides:

'Subject to subsection (5), whenever an employer is consulting or
bargaining with a representative trade union, the employer must
disclose to the represent ative trade union all relevant information that
will allow the representative trade union to engage effectively in
consultation or collective bargaining.'

[108] The effect of sections 189(4) and 16(3) read together is that, in a
retrenchment consultation situati on, the employer is obliged to disclose all
relevant information that will allow the other party concerned to engage
effectively in consultation on the contemplated retrenchments. This is,
however, subject to section 16(5) , which provides:

'An employer is not required to disclose information -
(a) that is legally privileged;

29 See Chotia v Hall Longmore & Co (Pty) Ltd [1997] 6 BLLR 739 (LC) at 743I -744B.

(b) that the employer cannot disclose without contravening a
prohibition imposed on the employer by any law or order
of any court;
(c) that is confidential and, if disclosed, may cause
substantial harm to an employee or the employer; or
(d) that is private personal information relating to an
employee, unless that employee consents to the
disclosure of that information .’

[109] Section 16(6) provides:

'If there is a dispute about what information is required to be disclosed
in terms of this section, any party to the dispute may refer the dispute
in writing to the Commission.'

[110] Section 16(8) requires the CCMA to attempt to resolve such a dispute through
conciliation. Se ction 16(9) provides that if such a dispute remains unresolved,
any party thereto may request that the dispute be resolved through arbitration.
Section 16(10) requires the commissioner who arbitrates the dispute first to
decide whether or not the informati on is relevant.

[111] In casu , the Plaintiff did not refer a dispute to the CCMA in respect of the
information he sought.

[112] What seems clear is that, in terms of s ection 16, it is for a commissioner of the
CCMA, and not for this Court, to determine disputes about what information is
required to be disclosed in terms of s ection 16. Does t his impl y that it is not
the function of this Court to determine whether the information concerned
should have been disclosed and that, if the applicant was aggrieved in this
regard, he was confined to his remedies as provided for in s ection 16 of the
LRA?


[113] In Robbertze v Marsh SA30, the Court held that:

‘[50] Section 189(3) casts a positive obligation on an employer
contemplating a dismissal for reasons based on its operation al
requirements to disclose all relevant information. It is clear that
compliance with the requirements of s 189 is highly material to,
if not determinative of, the question as to whether a dismissal
based on the employer's operational requirements is fair. (See
eg Johnson & Johnson (Pty) Ltd v CWIU (1999) 20 ILJ 89
(LAC) ; [1998] 12 BLLR 1209 (LAC) at paras 26 -31; Alpha Plant
& Services (Pty) Ltd v Simmonds & others (2001) 22 ILJ 359
(LAC) ; [2001] 3 BLLR 261 (LAC) at paras 7 -10.) It is the duty of
this court to adjudicate disputes concerning the fairness of a
dismissal based on the employer's operational requi rements. If
this court should find that relevant information required to be
disclosed in terms of s 189(3) was not disclosed, it is in my view
required to consider and determine whether such non -disclosure
rendered the dismissal unfair, for example, on the basis that it
prevented fair and adequate consultation. The fact that it was
open to the employee to invoke the procedures contemplated in
ss 16(6) -16(14) does not, in my view, deprive this court of the
right, and indeed the obligation, to determine wheth er the non -
disclosure of the information rendered the dismissal unfair. ’

[114] In United People's Union of SA v Grinaker Duraset31, the Court held that

‘The only issue for decision in these proceedings is whether the
respondent's failure to comply with the request for financial statements
amounted to a breach of its duty to consult in terms of s 189. In my
view it did not. The duty to provide information in the context of a
dismissal for operational reasons arises from subsections (3) and (4) of
s 189, read with s 16, subject to the changes required by the context.

30 (2002) 23 ILJ 1448 (LC).
31 (1998) 19 ILJ 107 (LC) at 116 H – 117D.

Read thus, s 16 requires the disclosure of all relevant information that
will allow the other consulting party to engage effectively in
consultation. Although a dispute over whether information is relevant is
reserved for arbitration under the Act, it is material to an assessment of
the fairness of a retrenchment in that relevancy is one of the
prerequisites to a duty to disclose: see National Union of Metalworkers
of SA v Atlantis Diese l Engines (P ty) Ltd (1994) 15 ILJ 1257 (A); FAWU
v Premier Foods Industries Ltd (Epic Foods Division) (1997) 18 ILJ
1082 (LC); [1997] 6 BLLR 753 (LC).
Apart from the duty to provide information regarding the specific
matters referred to in s 189(3), an employer is not obliged to comply
with a generalized demand for 'information' unless the party making
such demand lays some foundation for its relevance. This is not a
case, like NUMSA & others v Comark Holdings (Pty) Ltd (1997) 18 ILJ
516 (LC); [1997] 5 BLLR 589 (LC) in which the employer had
specifically claimed that it was considering retrenchment because it
was in financial difficulties. In the present case, the applicant first
raised a demand for financial disclosure on 21 January 1997 - some
four months after the re spondent had taken several steps to the
detriment of the earning capacity of a number of its members. When it
did, it was raised in the form of a generalized demand for 'the books',
which Mr Luthuli conceded simply meant the amount of money the
respondent had in the bank. ’

[115] If this Court find s that relevant information required to be disclosed in terms of
section 189(3) was not disclosed, it is required to consider and determine
whether such non -disclosure rendered the dismissal unfair, for example, on
the basis that it prevented fair and adequate consultation. Th is Court
must determine whether the non -disclosure of the information rendered the
Plaintiff’s dismissal unfair.

[116] The Plaintiff requested financial information, which was provided to him. His
evidence was that he wanted more detailed financial statements , as that
would give him an opportunity to drill into the issues of profitability and to see

in which divisions there were the most problems. This was also evident from
the third meeting when th e Plaintiff stated that one of the reasons he wanted
the detailed financial statements ‘was in my feeling there is probably a
plethora of losses running through the place that might need to be arrested or
might need a different commercial perspective to lo ok at this and I have
worked with Tim. Tim knows I am a strategic thinker. I might not come up with
a solution immediately, but I do my research… ’

[117] In my view , the Defendant furnished financial information to the Plaintiff , which
enabled him to see the financial status of the Defendant, necessary for
purposes of a section 189 consultation process.

[118] The Plaintiff requested more detailed financial information. It is clear that the
purpose of such request was not to enable him to consult meaningfully, but it
was rather for his own desire to drill into issues of profitability and to come up
with a solution – that is not information required for a consultation process and
it is not the purpose of providing financial information in a section 189
consultation pro cess.

[119] The Defenda nt’s failure to make th e detailed financial information available to
the Plaintiff, in addition to what was provided to him for purposes of
consultation, was not inconsistent with its obligations in terms of s 189(3) of
the LRA. The Plaint iff was unable to show that the financial information that
was provided to him was insufficient to allow a proper opportunity to consult.
He requested more detailed information for other purposes.

Was there meaningful consultation?

[120] The Plaintiff challenges the procedural fairness of his dismissal and claims
that the consultation process was not a genuine process, as his retrenchment
was a fait accompli. He testified that although there were four consultation
meetings held, there was no genuine consultation, there was no meeting of
the minds or consensus. He went into the consultation process, confident that
he would be able to weather the storm du e to his qualifications and

credentials, but he was met with a fait accompli. Every propo sal he made was
shot down , and by the second consultation meeting , it became clear that he
would be retrenched. The Plaintiff’s view was that the Defendant was merely
going through the motions.

[121] The Defendant’s case on the other hand is that the Plaintiff w as consulted
extensively over a period of three months, his proposals were not ignored or
rejected at the outset, but instead he was consulted extensively, his proposals
were considered and the mere fact that he did not get what he wanted, does
not mean th at the Plaintiff was not consulted or that his proposals were not
considered.

[122] The first question to be decided is whether there was meaningful consultation
as contemplated in section 189(2) of the LRA. I first deal with the applicable
principles that apply in general.

[123] Section 189(1) of the LRA requires an employer to consult with certain parties
when it contemplates retrenchment. The employer must invite the relevant
parties to consult by way of a notice issued in terms of section 189(3). Section
189(3) enu merates the relevant information that is required to be disclosed to
the consulting parties.

[124] Section 189 (2) provides that:

‘(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 minimize 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.’

[125] Section 189(2)(a) of the LRA provides that the employer and other consulting
parties must consult and engage in a meaningful joint consensus -seeking
process to attempt to reach consensus on certain prescribed issues . The
Plaintiff was indeed invited to con sult on these issues.

[126] The main objective of consultation before a final decision on retrenchment is
taken must be to avoid retrenchments altogether, alternatively , to reduce the
number of retrenchments and to mitigate the consequences .32 The objective
is not to ensure that the status quo is maintained.

[127] Section 189 of the LRA imposes a number of obligations in peremptory terms,
for instance , the employer ‘must consult’, ‘must issue a written notice’ and that
the employer and the other consulting parties ‘must’ engage in a meaningful
joint consensus -seeking process.

[128] Consultation in a retrenchment process must be distinguished from
negotiation s during a collective bargaining process. Consultation in
anticipation of retrenchment calls for a joint problem -solving approach, so that
the needs of all the parties can be explored .33 Section 189(2) places an
obligation on both parties to consult. The e mployer has to invite the other
parties to consult, but the consultation process is a two -way street and
requires engagement by all the consulting parties, with the aim to reach
consensus. There is a duty on the other consulting party to put alternatives o n
the table and to make an effort to participate in a meaningful way. Adopting an
obstructive attitude does not assist the process.

[129] As the LAC found in Karachi:


32 Atlantis Diesel Engines (Pty) Ltd v National Union of Metalworkers of SA (1994) 15 ILJ 1247 (A).
33 Karachi supra .

‘It should be reiterated once again that fairness is not a one -way street.
It must accommodate both employer and employee. Section 189(2) of
the Act requires both parties to attempt to reach consensus on
alternative measures to retrenchment, so there is a duty on an
employee as well to raise bumping as an alternative. An employer is
obliged to consult with an employee about the possibility of bumping. ’34

[130] The obligation to consult placed on the employer by s ection 189 places a
correlative duty on the other consulting party to cooperate in the attempt to
reach consensus before the employer ultimately exercises its right to take the
final decision.

[131] The employer has a duty to consult, but it has no duty to reach consensus, as
is reflected in the wording of section 189(2) that the parties must ‘attempt’ to
reach consensus. Consultation may be terminated by the employer if a
deadlock is reached, that would be a point where the employer may proceed
unilaterally.

[132] The Plaintiff’s pleaded case is that he was met with a fait accompli and that
the consultations that were held were superfluous. He also complains that he
was not allowed a proper opportunity to consult in respect of the reasons for
the restructure, alternatives and his severance benefit.

[133] It is evident that the reason why the Plaintiff’s position was identified for
retrenchment was discussed during the first meeting on 3 August 2020. It was
recorded that the Plaintiff’s position was identified for the reasons mentioned
in the section 189(3) invitation to consult, as well as the fact that there were
no projects that Babcock would be pursuing. On his own version, the Plaintiff
was in agreement with the fact that there were no projects at the time.

[134] I am satisfied that the reasons for the retrenchment were discussed with the
Plaintiff , and there is no merit in his case that he was not a fforded an

34 Ibid at para 16.

opportunity to consult in respect of the reasons for the retrenchment. To the
extent that the Plaintiff takes issue with the fact that he was not provided with
sufficient information as to the reasons for the retrenchment and restructure, I
have dealt with that aspect supra.

[135] The Plaintiff also took issue with the fact that he was not properly consulted in
respect of alternatives. His case is that he was told that he would be
retrenched, all his proposals were shot down , and the alternatives he
proposed were not considered.

[136] I already alluded to the fact that the alternatives referred to the available
vacant positions and bumping. These issues were fully considered supra , and
this Court found that bumping was not possible or feasible , but left the
question of the procedural fairness thereof to be decided separately. The only
position relevant for purposes of this judgment is that of Mr Sheperd.

[137] The Plaintiff’s case is that he proposed the position of Mr Sheperd for
purposes of bumping , as he was of the view that he could perform the tasks of
the said position. In Court , Mr Vaughan provided an explanation as to why the
Plaintiff was not suitable for Mr Sheperd’s position , and he explained in length
why Mr Sheperd was the most suitable ca ndidate for the position.

[138] The reasons advanced on behalf of the Defendant why Mr Sheperd was not
retrenched at the time , clearly considered that the Plaintiff did not have the
required experience and that he was not capable of performing the functions
of Mr Sheperd, as he never occupied the position of regional manager and he
had no experience in working in the African market. C ogent evidence was
presented to show that the employee identified by the Plaintiff and who was
retained was better skilled and capable than the Plaintiff in respect of the
position he was retained in .

[139] In Mtshali , the LAC held that:


‘It is clear from the authorities referred to above that bumping forms
part of LIFO as a method for selection of employees to be retrenched.
It was therefore incumbent on the respondent to have consulted on its
application to determine whether its application would have been
appropriate in the circumstances of this case. It was not for the
respondent to decide unilaterally that it would not be appropr iate to
apply bumping especially where it was not specifically prohibited in the
collective agreement. Reasons why the respondent considered the
application of bumping inappropriate or unfair should have been tabled
for consideration by the consultation pa rties before a final decision
could be taken. ’35

[140] It is evident from the transcript of the second consultation meeting that the
Plaintiff asked Mr Hlope, the Defendant’s HR business partner, whether
Babcock explored bumping , and Mr Hlope responded that ‘We, firstly we are
exploring what is in the letter, under section five of the letter. Remember in
your position, in the whole of Equipment you are the only project manager. So
if that position is redundant there is no LIFO because you are the only person
in that position ’.

[141] Also in the second meeting and as the consultation progressed, the Plaintiff
requested Mr Hlope to invoke bumping. Both Mr Vaughan and Mr Hlope
indicated that they would do so and that they would give fee dback to the
Plaintiff. Mr Vaughan undertook to give feedback , and he stated that ‘...in
Equipment we have had a look at the whole gambit and at all vacant
positions. But now I am not sure, where do you think you would fit in Michale,
because I mean what y ou are doing now is asking us in Equipment to bump
somebody else and keep you ’. The Plaintiff then indicated that Babcock
should consider the positions of Grant Sheperd and Jonathan Howe, upon
which Mr Vaughan indicated that the Plaintiff would not be able to do their
jobs and the Plaintiff responded ‘granted, granted, yes …’.


35 Mtshali supra at para 30.

[142] The second meeting concluded with Mr Hlope stating that ‘we will give you
feedback on the issues you have raised and although we have given you
feedback which will answer bumping, we w ill provide feedback again on
bumping and then we need to close the consultation ’.

[143] In the third consultation meeting , Mr Vaughan gave feedback to the Plaintiff
on the issue of bumping , and it is evident from the transcript that there was a
discussion on th e issue of bumping. Mr Vaughan stated, with reference to the
previous discussion , that: ‘...I know we have spoken about Manny and
Jonathan and Grant and things like that. But we don’t need mechanical
engineers in those positions, we don’t need finance guys in those positions.
You know it is ploughing the seeds, you know customer relationships, product
knowledge, machine product knowledge, Volvo knowledge, SLG and all the
other stuff that goes with it. That is what makes bumping not possible in t his
instance …’.

[144] Mr Hlope then asked , ‘Michael, in your opinion, if I may ask, which position do
you think you can be bumped into, considering the skill set of the position, the
requirements and qualification? ’ The Plaintiff responded that he had been with
the Babcock group for so long , and he understands so much about it , and he
believed that he had exposure to look at the division holistically and that he
was fully competent to ‘catch the ball.’

[145] The LAC in Karachi and Mtshali confirmed that an employer is obliged to
consult with an employee about the possibility of bumping and that it is
incumbent on an employer to consult on its application to determine whether
its application would have been appropriate. It is not for an employer to decide
unilaterally t hat it would not be appropriate to apply bumping.

[146] In my view, there is no merit in the Plaintiff’s complaint that the Defendant
refused or failed to consult with him on alternatives to retrenchment or the
issue of bumping.


[147] The transcribed record of the co nsultation meetings show that the alternatives
and bumping were discussed , and it was indicated to the Plaintiff that his skills
and experience were not required for the positions he identified as positions
where bumping could take place and the Defendant made it clear that for that
reason, bumping would not be possible.

[148] The te rmination of the Plaintiff's employment was being contemplated for
reasons that had nothing to do with fault on his part. In these circumstances ,
the LRA required the Defendant to consult in good faith and to give the
Plaintiff a fair opportunity of seekin g to persuade it not to retrench him. The
Plaintiff was afforded s uch an opportunity , and in the circumstances , the
process followed compl ied with the consultation requirements of the LRA and
the principles of procedural fairness.

[149] I am also not convinced t hat the Plaintiff was met with a fait accompli and that
the consultations that were held were superfluous. There was no convincing
evidence placed before this Court to show that the Defendant approached the
process with a predetermined outcome or that a decision was already taken,
and that the Plaintiff was faced with a fait accompli. The mere fact that his
name was included on a list of position s which may be affected and b e made
redundant is not sufficient to establish a fait accompli, nor is the fact that the
Plaintiff was unable to come up with sufficiently persuasive arguments for the
employer to change . In National Education Health and Allied Workers Union
and others v University of Pretoria,36 the LAC considered a matter where the
employees challenged the fairness of their dismissals inter alia on the ground
that their union was faced with a fait accompli by the time the consultation in
terms of section 189 of the LRA c ommenced. were held that:

‘[51] Section 189 of the Act does envisage that the employer may
come to the first consultation table with a proposal that can be
said to be not only his preferred proposal but, indeed, one that
he strongly views as the solution t o the problem. The obligation

36 (2006) 27 ILJ 117 (LAC) at paras 51 – 53.

placed upon the employer to consult only arises in terms of s
189(1) of the Act when a situation has been reached where he
“contemplates dismissing one or more employees” for
operational requirements. In other words, before he reaches
such stage, he is under no obligation to consult and is within his
rights to try and deal with the problem on his own with such
assistance and advice as he may in his discretion feel he needs
which need not be that of the consulting parties envisa ged in s
189(1). This is because the employer is entitled to deal with the
problems of his business without consulting the parties
envisaged in s 189(1) as long as he is not contemplating the
dismissal of any employees for operational requirements. It
would be natural for him to form a view or even a strong view
about one or other possible solution to the problem out of all
those that he might have applied his mind to while trying to solve
the problem before contemplating the dismissal. Section
189(1)(b), ( c),(3)(c) and (g) refer to “employees likely to be
affected.” The frequent reference in those provisions to
“employees likely to be affected” is an indication that it is
permissible for the employer to have already grappled with the
problem to the extent t hat he has in mind “employees likely to be
affected by the proposed dismissal.”
[52] Section 189(3) requires the employer to disclose the reason for
the proposed dismissals, the alternatives that he considered
before proposing the dismissals and the reasons for rejecting
each one of those alternatives, the number of employees likely
to be affected and the categories in which they are employed,
the time when or the period during which the dismissals are
likely to take e ffect. The content of what s 189(3) requires the
employer to disclose suggests quite clearly that the employer is
allowed to initiate the consultation process after he has done a
lot of work to try and resolve the problem on his own. He is
permitted to hav e done so much work that –

a) he is in a position to propose dismissal because in his
view there are no other acceptable alternatives that can
address the problem satisfactorily without dismissals.
b) he has reasons for proposing dismissals as opposed to
other alternatives.
c) before proposing the dismissal, he has considered other
alternatives and has rejected them.
d) he has reasons for rejecting other alternatives and is
ready to articulate them.
Section 189 contemplates that, when the employer initiates the s
189 consultation process, he contemplates the dismissal of one
or more of his employees for operational requirements; that is
why already in paragraph (b), (c) and (d) of sec 189(1) there are
references to “proposed dismissals”. So what s 189(1)
contemplat es is that the employer is already proposing a
dismissal or dismissals when he initiates the s 189 consultation
process.
[53] The fact that s 189(3)(b) contemplates that, when the employer
initiates the consultation process in terms of s 189(1) of the Act,
he has already considered alternatives to dismissals which he
has rejected for certain reasons and requires him to disclose the
reasons why he rejected such alternatives does not mean that
such alternatives cannot be revisited in the consultation process.
Of course, they can be because the other consulting party or
parties may view them as potentially viable solutions. Obviously,
the employer may have strong views on such alternatives
because he will have had an opportunity to consider them
already and wil l have already rejected them before. For the
employer to pretend as if he has no views on such alternatives
would be dishonest because he will already have formed some
or other view on them. However, what will be required is that the
employer should consid er honestly and properly whatever the
other consulting party may have to say on such alternatives and
change its mind or view on them if the other consulting party

comes up with sufficiently persuasive arguments for the
employer to change. Before consideri ng such alternatives, the
employer may have found it necessary to launch some or other
research or investigation into the viability of such alternatives
and may, therefore, seem to have strong views on them
because it has considered them properly and thoro ughly. ’

[150] The LAC concluded that37:

‘In the light of the above I conclude that there is nothing wrong with an
employer coming to the consultation table with a predisposition towards
a particular method of solving the problem which has given rise to the
contemplation of dismissal of employees for operational requirements.
What is critical is that the employer should nevertheless be open to
change its mind if persuasive argument is presented to it that that
method is wrong or is not the best or that there is o r may be another
one that can address the problem either equally well or even in a better
way. He should engage in a joint problem -solving exercise with the
other consulting party or parties.’

[151] In short, the LAC found that an employer may have strong views on
alternatives because the employer would have had an opportunity to consider
and reject them already and for the employer to pretend as if it has no views
on such alternatives would be dishonest, because it would already have
formed some or other view on them. However, what will be required is that the
employer should consider honestly and properly whatever the other consulting
party may have to say on such alternatives and change its mind or view on
them if the other consulting party comes up with suffic iently persuasive
arguments for the employer to change . In casu, the Plaintiff could not come
up with sufficiently persuasive arguments to avoid his retrenchment. That
does not equate to a fait accompli.


37 Ibid at para 55.

Severance pay

[152] The Plaintiff’s pleaded case is that the Defendant refused to engage him and
to consult on the issue of his severance benefit.

[153] In my view , there is no merit in this complaint.

[154] It is evident that in the section 189 notice , Babcock proposed severance pay
in accordance with the Basic Conditions of Employment Act38 (BCEA) and the
Main Agreement’s dispensation, namely one week’s remuneration for each
completed year of service.

[155] The transcript of the consultations held also show that the issue of severance
pay was canvassed and discussed. It was raised by the Plaintiff in the third
consultation meeting and he wanted the MD to raise the issue with Babcock’s
CEO and to revert on the possibility of a separation agreement. The Plaint iff
requested that the proposed severance pay of one week’s remuneration for
each completed year of service be reconsidered and that he be paid more.
This request was motivated by the Plaintiff and he stated that his request was
based on his feeling that h e had contributed significantly to Babcock, he
added a lot of value over the years, he was 55 years old which was “the worst
age in the worst economy to be retrenched. I am a 55 year old white male and
it will probably take me a year to find another job.” Mr Vaughan undertook to
raise the issue with the CEO the following day.

[156] On 30 September 2020 , Mr Vaughan sent an email to the Plaintiff, giving him
feedback, following the meeting held on 28 September 2020. He was
informed that: ‘Your request that the company considers increasing the
current severance package of one week’s salary for every full year of service
completed with the company has been denied ’.


38 Act 75 of 1997.

[157] In the final consultation meeting , Mr Vaughan reported back on the request for
an improved severance pay to be paid , and he confirmed that the request was
denied. This was perceived by the P laintiff as there being ‘ no will to soften or
mitigate the risks of retrenchment ’. Mr Vaughan responded that ‘the overriding
thing is that they still want to treat everybody the same, because there’s also
some other people that are unfortunately in the sam e position here, you know
that were with the company for a long time and it is a standard thing across
the board for everybody. That is the way I understand it. That they wouldn’t
like to single out certain people for fairness ’.

[158] The fact that the Plaintiff ’s request for an increased severance benefit to be
paid to him was de nied does not mean that there was no proper consultation
on the issue. The Defendant wanted to treat all retrenched employees the
same, by paying the prescribed statutory severance pay t o all of them. The
Plaintiff did not get what he had requested, but that does not mean that the
issue was not consulted on, nor does it mean that it was unfair. On the
contrary, the Defendant’s refusal to pay him more was to ensure fairness and
equality am ong all retrenched employees.

[159] The Plaintiff further claims the sum of R 84 797.89 as the shortfall in the
severance pay which was paid to him. His claim is that the severance pay
was not paid in terms of section 41(1) of the BCEA in that the severance pay
was calculated on the Plaintiff’s basic remuneration, excluding benefits, and
not on his gross remuneration, inclusive of all benefits.

[160] Mr Hlope testified that the Plaintiff’s severance pay was calculated as one
week’s remunerati on for every completed year of service , and the Plaintiff had
13 years of completed service. His severance pay was R 244 975,48 and it
was calculated on the Plaintiff’s basic salary only (R 81 595), excluding his
benefits.

[161] The Plaintiff testified that his total remuneration was R 107 000 per month,
including his benefits and that his severance pay should have been calculated
on his total remuneration, instead of his basic salary only.


[162] The Plaintiff explained that his total weekly remuneration was R 24 795, 85,
which should have been multiplied by 13 weeks ’ severance pay, which equals
R 322 346,05. He was paid severance pay of R 244 975,48, which leaves a
shortfall of R 77 370,57.

[163] In my view , there is merit in this part of the Plaintiff’s claim.

[164] Section 41 of the BCEA provides for severance pay , and section 41(2)
provides that:

‘An employer must pay an employee who is dismissed for reasons
based on the employer’s operational requirements … severance pay
equal to at least one week’s remuneration for each completed year of
continuous service with that employer, calculated in accordance with
section 35.’

[165] Section 41(2) of the BCEA provides the default position.

[166] In Barrier v Paramount Advanced Technologies (Pty) Ltd39 (Barrier) , the LAC
considered the issue of severance pay and held that:

‘[32] It is generally accepted that a fair severance allowance, upon
the termination of employment for operational requirements, is
one based (at least) on the employee’s length of employment
with the employer and his (or her) remuneration.
[33] Section 41(2) of the BCEA deals with severance pay. The
section in particular (as has been mentioned above, albeit in
paraphrasing) provides as follows: “An employer mu st pay an
employee who is dismissed for reasons based on the
employer’s operational requirements, or whose contract of
employment terminates or is terminated in terms of section 38 of

39 (2021) 42 ILJ 1177 (LAC) .

the Insolvency Act, 1936 (Act No. 24 of 1936) severance pay
equal to at least one week’s remuneration for each completed
year of continuous service with that employer, calculated in
accordance with section 35.”
[34] The section is relatively unambiguous. An employer who
dismisses an employee, inter alia, for operational reasons is
obliged to pay that employee severance pay, the amount of
which, at least, must be equal to one week’s remuneration for
every completed year of continuous service with that employer. ’

[167] Prior to its amendment in 200240, section 35, which is referred to in section
41(2), deal t with the calculation of remuneration, and section 35(5) specifically
provide d for the calculation of remuneration for the purposes of severance
pay and provide d that:

‘(5) For the purposes of calculating an employee’s …. severance
pay in terms of section 41 an employee’s remuneration —
(a) includes the cash value of any payment in kind that forms
part of the employee’s remuneration unless the employee
receives that payment i n kind ; but
(b) excludes —
(i) gratuities:
(ii) allowances paid to an employee for the purposes
of enabling an 15 employee to work; and
(iii) any discretionary payments not related to the
employee’s hours of work or work performance. ’

[168] The Minister of Labour has passed regulations in terms of section 35(5) of the
BCEA to assist with the determination of whether a particular category of
payment forms part of an employee’s remuneration for purposes of the
calculation of inter alia severanc e pay. The Government Notice No. 691 in
Government Gazette 24889 of 23 May 2003 , published the notice in terms of

40 The Basic Conditions of Employment Amendment Act 11 of 2002.

section 35(5) of the BCEA and stipulates what benefits must be included and
which benefits must be excluded for purposes of calculating severance pay. A
housing or accommodation allowance or subsidy, a car allowance, an
employer’s contributions to pension, provident fund or similar schemes,
medical aid contributions and funeral or death benefit schemes are
specifically included .

[169] The Defendant indeed excluded categories of benefits which should have
been included for purposes of calculating the Plaintiff’s severance pay , and in
considering only the basic salary, the Defendant indeed short -paid the Plaintiff
in respect of his seve rance pay.

Notice pay

[170] The Plaintiff claims damages in the sum of R 30 440,62 as the shortfall in
respect of the payment of notice pay. This claim is premised on a breach of
contract in respect of notice period.

[171] It is trite that in a contractual claim for damages , the plaintiff has to plead the
terms of the contract, the breach thereof and the damages suffered as a result
of the breach. A plaintiff must specify the terms that were breached , the
nature of the breach , as well as the nature and extent of the damages
suffered as a result of the defendant’s breach.

[172] In Toyota SA Motors (Pty) Ltd v Nzuza and another41, the LAC considered the
difference between a claim in terms of the LRA and the BCEA and held that in
claims made in terms of the BCEA:

‘….Firstly, unlike in the LRA the claimant must prove an unlawful
breach and not unfairness for the termination of the employment; next
in terms of the LRA reinstatement is generally compulsory where a
dismissal is found to be substantively unfair, specific performance

41 (2020) 41 ILJ 908 (LAC) at para 10.

consequent upon a breach is not, and generally it is a discretionary
relief. Furthermore, in terms of the LRA an employee whose dismissal
is found to be unfair will receive compensation. In an action in terms of
s 77, if the employee is able to prove a breach by the employer the
only amount s/he will receive is the loss s/he has proved to have
suffered as dam ages. Here s/he must also show that s/he has tried to
mitigate the damages etc. There is no way s/he can receive damages
equal to the amount they would have earned from the date of the
breach to the date that they would eventually have retired! This absurd
prayer which is so regular seems to take leave of the basic rule that
one is awarded damages that are proved not what you would have
been paid had you remained in your employ till retirement. ’

[173] In Pilanesberg Platinum Mines (Pty) Ltd v Ramabulana42 (Ramab ulana) , the
LAC confirmed that an employee proceeding in terms of the BCEA must
prove the damages she has suffered to obtain monetary relief and held that:

‘With regard to damages, as I said earlier, there was a duty upon the
respondent to prove the quantum of her damages — to simply demand
damages in the amount that she would earn until her retirement is
totally misconceived. Damages in a breach of contract needs to be
proved, she failed to prove any, nor does she allege that she has been
out of work from the date of her employment being terminated. In the
circumstances, had the respondent proved a breach, she would not in
law be entitled to any relief. ’

[174] In KwaZulu-Natal Tourism Authority and Others v Wasa43, the LAC held that:

‘The employee did not seek compensation based on her dismissal
being unfair in terms of the Labour Relations Act (LRA), she sought
damages in terms of the BCEA consequent upon a breach of contract.
She instituted a civil claim for damages. Two issues arise in this

42 (2019) 40 ILJ 2723 (LAC) at 32.
43 (2016) 37 ILJ 2581 (LAC) at para 32 .

respect. Firstly, she had to prove that she suffered damages as a
consequence of the breach, that there is a link between the damages
she suffered and the breach; and, secondly, the quantum of damages
she actually suffered. ’

[175] In his statement of case , the Plaintiff stated that he was advised on 2 October
2020 that he would be retrenched. He was not required to work out his notice
period , and he was paid up until 9 November 2020, being his date of
dismissal.

[176] His pleaded case is that his employment was terminated in b reach of his
contract of employment. This is so because the contract of employment
should have terminated on one month’s notice, with effect from 15 October
2020 and terminating on 15 November 2020. His contract was , however ,
terminated on 9 November 2020.

[177] There a re two material difficulties with the claim.

[178] First, the Plaintiff did not plead the necessary averments to support his claim
for breach of contract. He failed to plead the specific and relevant terms of his
contract, he failed to plead a breach and to establish that he had suffered
damages as a result of the breach.

[179] The Plaintiff’s pleaded case in respect of the damages he seeks is limited to
the following:

‘The applicant was advised on 2 October 2020 that he would be
retrenched. He was not required to work out a notice period and was
paid up until 9 November 2020 (‘the date of dismissal’) .’
‘The applicant’s employment was terminated in breach of the contract
of employment. In terms thereof his employment should have be en
terminated on one month’s notice with effect from 15 October 2020
terminating on 15 November 2020. Rather his employment was
terminated on 9 November 2020. ’

‘damages in the amount of R 30 440,62 been the shortfall in
remuneration due to the applicant as a result of the respondent’s
breach of the contract of employment in respect of the notice period,
together with interest thereon calculated at the prime rate as from the
date of dismissal. ’

[180] The Plaintiff testified that the clause in his contract of emplo yment, dealing
with termination, provided that the contract may be terminated by either party
giving one month’s notice in writing on either the first or the 15th day of the
month. For this reason , the Respondent could only have given him notice on
either the first or the 15th of October 2020. The notice was given on 2 October,
his last day of work was 9 October 2020 , and he was paid notice pay until 9
November 2020.

[181] According to the Plaintiff, the notice could have only been given on 15
October 2020 , and he had to be paid notice pay until 15 November 2020. He
claims the shortfall as damages.

[182] The second and fatal difficulty with this claim is that the Plaintiff was unable to
prove the damages he claims to have suffered.

[183] The contract of employment provided for termination on a month’s notice. It is
evident that the Plaintiff was given and paid a month’s notice. The question
which leaps out is what damage s did the Plaintiff suffer when he was paid a
month’s notice, as per the contractual terms ?

[184] Even if I were to find that the Defendant acted in breach of the termination
clause of the employment c ontract by not giving notice on 1 or 15 October
2020 , the only relief open to the Plaintiff was either specific performance or
damages. In view of the facts of this case, it would not be appropriate to grant
specific performance – in any event, the Plainti ff seeks damages. Regarding
damages, the Plaintiff had to prove the quantum of his damages , as damages
in a breach of contract need to be proved. The Plaintiff failed to prove any

damages . Even if he had proved a breach, he would not in law be entitled to
any relief.

[185] The Plaintiff could not adduce an iota of evidence to prove his damages , and
in my view , it is because he did not suffer any damages. To uphold the claim
for damages, would have the result that the Plaintiff is paid in excess of the
month’s not ice period, as he would be given notice on 2 October, his last day
of work was 9 October, yet he seeks to be paid beyond a month’s notice up to
15 November 2020.

[186] The Plaintiff could not prove that he was entitled to more than a month’s
notice, which is wha t he effectively claims , and he could not prove that he
indeed suffered any damages in respect of the payment of his notice pay. He
was paid a month’s notice, which is what he was entitled to.

[187] It is clear that in pursuing this claim, the Plaintiff lost sight of the fact that when
he seeks damages, he must be able to prove the damages he had suffered as
a result of the breach of the contract. To show that there was a breach of
contract in respect of the date on which notice was given is not enough. As
the LAC has held, he had to first prove that he suffered damages as a
consequence of the breach, that there is a link between the damages he
suffered and the breach; and, secondly, the quantum of damages he actually
suffered. None of this was proved , and in my view , this claim should not h ave
been pursued.

Costs

[188] Costs should be considered against the provisions of section 162 of the LRA
and according to the requirements of the law and fairness.

[189] This Court has a broad discretion to make orders for costs .

[190] The general ly accepted purpose of awarding costs is to indemnify the
successful litigant for the expense he or she has been put through by having

been unjustly compelled to initiate or defend litigation. In Public Servants
Association of SA on behalf of Khan v Tsabadi NO and others ,44 it was
emphasi sed that:

‘… unless there are sound reasons which dictate a different approach,
it is fair that the successful party be awarded her costs. The successful
party has been compelled to engage in litigation and compelled to incur
legal costs in doing so. An appropriate award of costs is one method of
ensuring that much earnest thought and consideration goes into
decisions to litigate in this court, whether as applicant , in launching
proceedings or as respondent opposing proceedings.’

[191] Mr Short , for the Plaintiff , submitted that costs should follow the result .

[192] Mr Bleazard , for the Defendant , left the issue of costs in the discretion of this
Court.

[193] In Zungu v Premier of Province of KwaZulu-Natal and Others ,45 the
Constitutional Court confirmed the rule that costs follow the result does not
apply in labour matters, but that the Court should seek to strike a fair balance
between unduly discouraging parties from approaching the Labour Court and
have their disputes dea lt with and, on the other hand , allowing those parties to
bring to this Court cases that should not have been brought to Court in the
first place.

[194] This is a case where I have to strike a balance , and in my view , the interest of
justice will be best served by making no order as to costs.

[195] In the premises, I make the following order:

Order


44 (2012 ) 33 ILJ 2117 (LC) at para 176.
45 (2018) 39 ILJ 523 (CC) .

1. The Plaintiff ’s case is dismiss ed, save for his claim in respect of
severance pay ;

2. The Defendant is ordered to pay the Plaintiff severance pay in the sum of
R 77 370,57 ;

3. There is no order as to costs.


______________ _______
Connie Prinsloo
Judge of the Labour Court of South Africa


Appearances:

For the Plaintiff : Mr D Short from Fairbridges Wertheim Becker Attorneys
For the Defendant : Mr B Bleazard from Brian Bleazard Attorneys