IN THE LABOUR COURT OF SOUTH AFRICA , JOHANNESBURG
Not Reportable
Case No: JS218/21
In the matter between:
MUSA RYDER MAHLANGU Applicant / Plaintiff
and
TRAVEL WITH FLAIR (PTY) LTD Respondent / Defendant
Heard: 7 November 2024
Order delivered: 7 November 2024
Reasons: 29 January 2025 (This judgment was handed down electronically by
circulation to the parties’ legal representatives by email, publication on the
Labour Court website and release to SAFLII. The date and time for handing -
down is deemed to be 10h00 on 29 January 2025.)
REASONS FOR ORDER
PHEHANE , J
Introduction
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[1] The plaintiff brings this ref erral to seek an order declaring his dismissal f rom
the defendant for operational requirements as both substantively and procedurally
unfair , and seeks retrospective reinstatement , alt ernatively, 12 months’
compensation.
[2] The referral is opposed by the defendant on the basis that the plaintiff’s
dismissal was both procedurally and substantively fair.
[3] At the conlcusion of the hearing on 7 November 2024, this Court issued an
order dimissing the referral with no order as to costs.
[4] The reasons for the order appear below.
Background
[5] The following facts are common cause as recorded in the pre- trial minute
concluded between the parties:
5.1 The plaintiff was employed by the respondent for a period of 14 years
prior to his dismissal on 16 October 2020.
5.2 At the date of his dismissal, the plaintiff was employed in the position of
Team Leader. The plaintiff was previously employed in the positions of Junior
Creditor, Intermediate Credi tor and Senior Creditor Clerk and he was
appointed in the position of Team Leader: Creditors with effect from 1 August 2014.
5.3 On 18 June 2020, the defendan t issued its employees, inc luding the
plaintiff with a notice in terms of sect ion 189(3) of the Labour Relations Act
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(LRA). Consul tation meetings were scheduled for 25 June 2020, 17 and 23
September 2020, 8 and 15 October 2020. It is not disputed t hat the
consultat ion meetings were held virtually due to the Covid -19 pandemic that
was prevalent at the time.
1 Act 66 of 1995, as amended.
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5.4 During the consultation meeting on 25 June 2020, it was agreed that
the selection criteria to select employees for retrenchment would be
performance, skills, qualifications and LIFO. In addition, the defendant
proposed that employees would have to apply for available vacancies .
5.5 Prior to the retrenchment process, the defendant had three positions of
Team Leader: Creditors, which were occupied by the plaintiff and two other impacted employees, namely Mr. Pamuri and Ms. Mabhula. Consequent upon the defendant’s operational requirements due to the impact of the Covid- 19
pandemic, one of the Team Leader: Creditors positions became redundant. Therefore, only two Team Leader: Creditors roles were available. The plaintiff and the two aforesaid employees applied and competed for the two available
vacanc ies of Team Leader: Creditors . The plaintiff was interviewed for the role
on 28 August 2020 and was unsuccessful. Mr . Pamuri and Ms. Mabhula were
successful in their interviews and were appointed to the two roles.
5.6 On 1 October 2020, while the retrenchment process was still ongoing,
the plaintiff’s manager, Ms . Du Plessis sent an email to a supplier of the
defendant, in which she stated that the plaintiff had been dismissed from the
empl oy of the defendant , his last day of service being 30 September 2020.
5.7 On 16 October 2020, the plaintiff received his letter of dismissal for
operational requirements from the defendant.
[6] The plaintiff contended that his dismissal was unfair due to the defendant
failing to fair ly apply the agreed selection criteria. He contended that he was not
selected for the available Team Leader positions he applied for despite possessing
the requisite skills and experience and despite hi m being employed before Mr.
Pamuri and Ms. Mabhula. He further contended that his dismissal is unfair as the
defendant denied him the opport unity to make representations and dismis sed him
before the retrenchmen t process was finalized.
Issues that this Court is to determine
[7] This Court was called upon to determine whether the dismissal of the plaintiff
was procedurally and substantively unfair.
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The Evidence
[8] Ms. Mitchell gave evidence on behalf of the defendant. She was employed as
the defendant’s Head of Human Capital for 19 years. The plaintiff gave evidence on
his own behalf . No other witnesses were called by either party.
Defendant’s evidence
[9] Ms. Mitchell stated tha t the business of the defendant is corporate travel
management , which entails flight and accommodation bookings and car hire for
corporate clients. As a result of the Covid- 19 pandemic, the travel industry was hard
hit due to the ban on travel. The defendant accordingly had no choi ce but to retrench
its employees. To avoid retrenchment, alt ernatives such as lay offs and redu ced
working hours were implemented. Further, the defendant applied for Temporar y
Employee- Employer Relief Scheme (TERS) payments from the Department of
Employment and Labour.
[10] Ms. Mitchell explained that the plaintiff was employed in the role of Team
Leader in the creditors department which dealt with accounts to b e paid to suppliers
such as hotels an d shuttle companies. Junior and senior creditors clerks reported to
the Team Leader s, who oversaw the administration function.
[11] Prior to the retrenchment process, the defendant had three Team Leader
positions which were occupied by the plaintiff, Mr. Pamuri and Ms. Mabhula. Only two roles remained as a result of the operational requirements of the defendant .
[12] The selection criteria agreed upon during the first consultation meeting were
performance, skills, qualifications, LIFO and applying for advertised positions. [13] Ms. Mitchell referred this Court to page 158 of the combined trial bundle
(marked “A”), and explained that this was the evaluation outcome of the interview for
the two Team Leader : Creditors roles. Ms. Mabhula scored 5 points for the BEE
category due to being an African and female candidate. The performance score was
based on the average of the last three performance appraisals excluding the year s
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2019 and 2020, as no performance appraisals were conducted in these two years .
The performance appraisals w ere historic information, as employees assessed
themselves according to the defendant’s performance appraisal process and the
final score was provided by the employee’s manager . As a team leader, the plaintiff
was familiar with this process and he at no point challenged his past performance
appraisals. Ms. Mabhula scored a total of 3.6 in the interview. Mr. Pamuri scored
3.38 and the plaintiff scored 3.33. The plaintiff’s perfor mance score was the second
highest. However, he did not complete his tertiary qualification when compared to
Ms. Mabhula and Mr. Pamuri. The management team evaluation is drawn up by the
manager of the section, in this instance, Ms. Du Plessis, who assessed the
candidates based on the interview questions and answers and aspects of the job – in
this category, which weighed 35% of the criteria, the plaintiff scored the lowest at 3.74.
[14] Ms. Mitchell explained that in her email of 1 October 2020, which was not
addressed to the Plaintiff, Ms. Du Plessis incorrectly informed a supplier that the
plaintiff had been dismissed, when this was not the case. Ms. Michell denied the
plaintiff’s version that he was told by Human Resources that he had been dismissed.
The plaintiff was on lay off during this time due to the Covid -19 pandemic. He was
contacted and further consultations were held with him on 8 and 15 October 2020,
when he was given feedback on the interview process, and was offered a
reasonable alternative role of Senior Creditor , which role he refused to accept and
was therefore, dismissed on 16 October 2020.
[15] Ms. Mitchell confirmed that the consultation process began in June 2020,
extensive consultations were held virtually and the plaintiff did not attend all the
consultations and none were cancelled. Further, the selection criteria were agreed
upon and were applied fairly.
Plaintiff’s evidence
[16] Mr. Mahlangu stated that he had been promoted thrice due to his
performance. He confirmed that in June 2020, the defendant informed employees
that it intended to restructure its operations. The employees were informed of the
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selection criteria and that further consultations would take place at which employees
could make suggestions.
[17] Mr. Mahlangu stated that LIFO was not applied, as Mr. Pamuri and Ms.
Mabhula were employed after him, yet they were retained. He stated that the
selection criteria were not applied fai rly, as his performance could have improved in
two years and his performance of the two years prior to his dismissal was not considered.
[18] Mr. Mahlangu’s evidence was that following the email of Ms . Du Plessis of 1
October 2020 to a supplier stating that he was no longer employed by the defendant,
he contacted Karien from Human Resources who confirmed that he had been dismissed and that further consultations would be held with him while he was at home. He conceded that he was offered the position of Senior Creditors Clerk, which he rejected, but he stated that he changed his mind later. He conceded that that he
had changed his mind was not in writing, but was recorded in minutes that do not form part of the bundle before this Court.
Analysis
[19] When taking into account the pre- trial minute, the plaintiff admits that there
was a general need to retrench.2 He admits that the selection cri teria were agreed
upon and does not dispute that the selection criteria were unfair.3 The plaintiff does
not deny that consultations took place. 4
[20] The plaintiff contends that in failing to follow the agreed selection criteria of
performance, skills, qualifications and LIFO, the defendant failed to comply with the provisions of section 189 of the LRA. He admits that he was interviewed for a Team
Leader position but contends that the defendant used unfair and irrelevant factors
and therefore, deviated from the agreed selection criteria which renders his dismissal as unfair.
2 See: Pre -trial minute at para 25 on p 8.
3 See: Pre-trial minute at para 27, read with para 28 on p 9.
4 See: Pre -trial minute at para 32 on p 11.
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[21] Together with the selection criteria of LIFO, skills and qualifications, t he
defendant used the last three performance appraisals of the plaintiff, Mr. Pamuri and Ms. Mabhula in recruiting for the two positions of Team Leader. It is not disputed that the plaintiff scored the second highest in the category of performance. His contention
that his performance could have improved in two years is speculative, is not pleaded
and is not supported by any evidence. The plaintiff did not dispute that the defendant
utilized the available, historic information in the form o f the last available last three
performance appraisals in applying the selection criteria. He had at no stage, disputed his performance scores during the appraisals.
[22] In consideration of qualifications as a selection criterion, Mr. Pamuri and Ms.
Mabhula possessed better qualifications than the plaintiff. Ms. Du Plessis considered
their skills in the interview and scored each candidate following her evaluation and
the plaintiff scored the lowest, at a score of 3.7. This management evaluation score accounted for 35 % weighting of the interview process following advertising of the
Team Leader role.
[23] On the plaintiff’s own admission, he did not attend all the consultation
sessions and he cannot thus complain about the application of the selection criteria
and scoring, when he made no counter -proposals during the consultation process.
LIFO was not a standalone selection criteria – it was considered along with the other
agreed selection criteria.
[24] It is improbable that the plaintiff was dismissed on 30 September 2020
premised on the email of Ms . Du Plessis of 1 October 2020. On his own version, th e
plaintiff was informed that further consultations would be held with him. He did not
dispute being offered an alternative role which he rejected before he was served with
his dismissal letter. The version of Ms. Mitchell that the plaintiff was offered a
reasonable alternative role prior to his dismissal which he rejected, is more probable.
[25] In the circumstances, the defendant discharged its onus and proved that the
dismissal of the plaintiff was both substantively and procedurally fair.
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[26] In view of the afore- going, the above order was made.
M. T. M. Phehane
Judge of the Labour Court of South Africa
Appearances :
For the Applicant / Plaintiff : Mr. S. Khanya of Ismail & Dahya Attorneys
For the Defendant / Respondent : Mr. Q.F Horn of Horn Attorneys