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[2025] ZALCD 8
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Jali v Wits Health Consortium (Pty) Ltd (D1584/17) [2025] ZALCD 8 (4 March 2025)
THE
LABOUR COURT OF SOUTH AFRICA, DURBAN
Not Reportable
Case
no:
D
1584/17
In
the matter between:
ZANDILE
JALI
Applicant
and
WITS
HEALTH CONSORTIUM (PTY)
LTD
Respondent
Heard
:
29 to 31 July 2024
Final
closing argument delivered: 25 February 2025
[1]
Delivered:
4
March 2025
JUDGMENT
WHITCHER J
Introduction
[1]
The applicant instituted an action against the respondent based on a
claim that her retrenchment by the respondent was
substantively and
procedurally unfair. Her case at trial though ultimately centred on
her claim that her dismissal was substantively
unfair because her
post of Quality Assurance Officer had not become redundant,
alternatively she should have been appointed to
the ‘vacant’
post of Quality Assurance Officer, which would have discharged the
respondent’s obligation to exhaust
all reasonable measures to
avoid a dismissal. If the court finds in her favour, she claims she
is entitled to compensation equivalent
to 12 months’ salary
(R227 976.00).
The
background facts
[2]
The Respondent is a support operation through which the University -
primarily its Faculty of Health Sciences - conducts
behavioural,
operational and clinical research
via
donor funded research
units and projects.
[3]
In terms of a letter of appointment, the applicant came to be
employed by the respondent on 1 October 2014 in the Maternal,
Adolescent and Child Health Research Unit (the March Research Unit)
and as a Data Capturer. On 1 June 2015, she was promoted to
the
position of Quality Assurance Officer in the Unit.
[4]
It is stated in paragraph 4 of a signed addendum to the letter of
appointment that:
The
Wits Health Consortium is a donor funded organisation and the
duration of this contract is dependent on the renewal and/or
availability of project funding. Should operational requirements
become necessary in this regard, the legislated process will be
instituted as stipulated in the Company’s retrenchment policy.
[5]
According to the evidence of Professor Beksinska, the executive
director of the March Research Unit, each research project
in the
Unit is separately donor funded. As to staff, they are appointed for
a particular project and the duration of their employment
is
generally dictated by the lifespan of the project’s funds.
[6]
According to Professor Beksinska, the applicant was employed because
the Match Research Unit’s Female Condom Evaluation
project
needed a Data Capturer.
[7]
As to why the applicant’s contract did not spell out that she
was specifically employed for the Unit’s Female
Condom
Evaluation project and that its term was fixed to the lifespan of
that project’s funds, Professor Beksinska said the
contract was
formatted that way in case at the end of the project suitable work
for the employee becomes available in another project
or unit and
because contract staff at the University generally are afforded less
benefits.
[8]
The applicants’ own version anyway points to the fact that she
had been aware that she was specifically employed
to work on the
Female Condom Evaluation Project. In this regard, she pleaded as
follows:
During the latter part
of 2016 the applicant, being aware that the Female Condom Evaluation
Project was coming to an end, discussed
this with her line manager,
Ross Geena…
[9]
Further, on her own evidence, although she had worked on other
projects and was trained on the ECO project, she had mostly
worked on
the Female Condom Evaluation project and did so exclusively from
January 2016. In this regard, the evidence of Professor
Beksinska was
that sometimes staff are requested for a time to assist on other
projects when the exigencies of the project (such
as urgency) require
same.
[10]
On 1 February 2017, the applicant was furnished a notice in terms of
section 189(3) of the LRA. The notice (in part)
reads as follows:
As you may be aware,
Match Research Unit is a donor funded organisation which relies on
external funders for financial support and
project work to sustain
the organisation. The existing contract with Female Condom Evaluation
ends on the 31 March 2017 and the
contract will not be renewed or
extended and will terminate effective 31 March 2017.
This mean we may have
to retrench staff and you could be affected. For this reason we need
to consult you on…
[11]
It was undisputed that the funding for the Female Condom Evaluation
study was fixed for a period of approximately three
years and ended
at the end of March 2017.
[12]
It is also common cause that in the course of the consultation
process, the applicant was informed the respondent would
be able to
employ her on the IBIS project until 30 April 2017 and the applicant
worked on that project.
[13]
She was
further assessed (interviewed and subjected to a written test) along
with another employee, Ntutuhuko Khumalo, who also
faced retrenchment
in his research unit
[2]
for the
temporary positions of Quality Assurance Administrator (QAA) and
Quality Assurance Officer (QAO) in the ECO project.
Around the
end of February 2017, the Match Research Unit determined that the ECO
project needed these positions, but for a fixed
term because the
project was due to end at the end of June 2018.
[14]
On 15 April 2017 the applicant was informed that she was not
successful in her application.
[15]
She was informed that the reason she was unsuccessful is that she did
not have experience in quality control in complex
clinical trials
which use iDatafax as a means of data capture. Her experience was
limited to consent forms. Also, according to
Professor Beksinska, the
position needed a person who could work under pressure and in a large
team, but the applicant indicated
otherwise during her interview.
[16]
In the end, however, to save money it was determined that a QAA which
came in at a lower level was sufficient for the
needs of the project,
so the position of QAO was not filled. Khumalo was appointed to the
position of QAA because he scored higher
in the assessments, and the
applicant was offered an alternative position, that of Research
Administrator in the ECO project, which
she declined because it came
in at a lower level (it paid R5000 less than her original salary).
[17]
Following the above, the applicant’s retrenchment came into
effect on 31 April 2017. She was paid up to 31 May
2017 and severance
and leave pay.
The
issues
[18]
Two distinct controversies arise for decision: whether the advertised
position of Quality Assurance Officer was the same
as the post the
applicant held prior to her dismissal; and, if not, whether the
applicant could reasonably have expected to be
placed into the
position of Quality Assurance Officer/ Quality Assurance
Administrator in the ECO project.
Analysis
[19]
The answer to the first question is simple. The applicant failed to
substantiate her claim that the positions were the
same. The evidence
of Professor Beksinska established that the posts were sufficiently
different in that the advertised post fell
within a different
research project and methodology, the ECO research project which
involved quality checking clinical trials as
opposed to quality
checking survey data as in the Female Condom Evaluation project.
[20]
It thus follows that the applicant’s post was rendered
redundant when the Female Condom Project ended.
[21]
The next issue is whether the applicant should have been appointed to
the post to avoid her retrenchment.
[22]
In
SA Breweries (Pty) Ltd v Louw (2018) 39 ILJ 189 (LAC)
,
the Labour Appeal Court held that a
n employer, who
seeks to avoid dismissals of a dislocated employee, and who invites
the dislocated employee to compete for one or
more of the new posts
therefore does not act unfairly, still less transgresses sections
189(2) (b) or 189(7). Being required to
compete for such a post in
these circumstances is not a
method of
selecting for dismissal
; rather it is a
legitimate method of
seeking to avoid
the need to dismiss
a dislocated
employee.
[23]
And, more recently, in
Telkom SA SOC
Limited v van Staden and others
[2020]
JOL 49323
(LAC), the LAC held that where a legitimate operational
justification exists, there is nothing innately unfair in requiring
an
employee whose position is affected to compete in a fair and
objective process for placement into an alternative position.
[24]
This
is more so, in my view, where there are other employees in the same
situation (that is, facing possible retrenchment) and t
he
difference in job content between the ‘old’ and ‘new’
profiles of the positions in question is “
sufficiently
significant to justify the requirement that the affected employee/s
be assessed for their suitability for appointment
to the new
position.
”
[3]
[25]
In the applicant’s case, there is no
evidence that her non-placement was made on an unreasonable,
arbitrary, subjective or
inconsistent basis.
[26]
The respondent’s undisputed evidence
was that Khumalo was an internal candidate who faced a similar fate
to the applicant;
the applicant was given a fair opportunity to
compete for the posts but in the end to save limited donor funds the
post of QAO
was not filled and Khumalo was appointed to the post of
QAA because he faired better in the assessments.
[27]
It is noted that the applicant was offered
an alternative position of Research Administrator but rejected the
offer because it came
in at a lower salary level. The position of QAA
also came in at a lower level.
Conclusion
[28]
For all these reasons, I find that the
dismissal of the applicant by the respondent was not unfair.
Order
1.
The
applicant’s referral is dismissed with no order as to costs.
B Whitcher
Judge
of the Labour Court of South Africa
Appearances
For the
Applicant:
The Applicant
For the
Respondent: Mr.
Posthuma from Snyman Attorneys
[1]
This
judgment was delayed because there was confusion as to whether the
respondent had filed their closing argument. As a result,
their
closing argument was re-submitted on 25 February 2025.
[2]
The
applicant failed to substantiate her pleaded claim that Khumalo was
an external candidate.
[3]
See:
Van
Rooyen and Others v Blue Financial Services SA (Pty)
(2010)
31 ILJ 2735 (LC) at para 22.