LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JS267/22
In the matter between:
SELLO SHADOW MAKOMANE Plaintiff
And
BROLL PROPERTIES GROUP (PTY) LTD Defendant
Heard: 17 October 2024
Delivered: 09 May 2025 This judgment was handed down electronically by
circulation to the parties and / or their legal representatives by
email. The date and time for handing-down is deemed 10h00 on 09
May 2025.
JUDGMENT
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VUKEYA, AJ
[1] The applicant, Mr Sello Shadow Makomane, (the plaintiff), was employed by
the defendant as a Shopping Centre Manager stationed at Emalahleni
Shopping Centre in Mpumalanga. He started working for the defendant on 18
December 2020 until 31 July 2022 when he was dismissed. Subsequent to his
dismissal, which he alleges was substantively and p rocedurally unfair, the
plaintiff referred the matter to the Commission for Conciliation, Mediation and
Arbitration (CCMA) in terms of section 189 of the Labour Relations Act
1
(LRA). The CCMA issued a certificate directing that the matter be referred to
the Labour Court.
[2] According to the defendant, the owner of the business no longer required a
Centre Manager but a Building Manager, a position that pays a lower salary
than a Centre Manager. The plaintiff was offered the position of a Building
Manager but he rejected it. It is also the version of the defendant that the
plaintiff was also offered the position of a Centre Manager at a lower salary at
other Malls but he rejected the offer. A Senior Property M anager’s position
was available at Alberton. The plaintiff applied for this position but he was not
shortlisted as he di d not meet the requirements. Subsequent to these, the
plaintiff was retrenched.
[3] The defendant’s contention was that the trial would prove that the
retrenchment did not amount to a substantive and procedural unfair dismissal
and that there was a proper consultation process before the retrenchment
happened. It then led the evidence of two witnesses while the plaintiff testified
in his own and called no other witnesses.
[4] The plaintiff placed on record that his retrenchment was an individual
retrenchment and that it was substantively unfair. His contention was that no
alternatives were place before him before the retrenchment and that the
discussions held were not in good faith but were done with the purpose of
ticking the section 189 boxes. He submitted that the evidence would show
ticking the section 189 boxes. He submitted that the evidence would show
1 Act 66 of 1995, as amended.
3
that alternatives were from his side and were not considered by the
defendant.
[5] In terms of section 192 of the LRA, in any proceedings concerning any
dismissal, the employee must establish the existence of the dismissal, and, if
the existence of the dismissal is established, the employer must prove that the
dismissal is fair. From the above background, it is apparent that the plaintiff’s
dismissal is common cause. This court therefore has to decide whether the
dismissal was substantively fair and if so, whether it was procedurally fair. It is
trite that in a dismissal dispute, the employer must lead evidence regarding
the appropriateness of the dismissal as a sanction
2.
[6] Mariam Omarjee told the court that she works for the defendant as a Portfolio
Property Executive. The defendant manages buildings on behalf of clients and
Emalahleni Shopping Centre is one of their clients. The plaintiff was the
Centre Manager and his duties entailed overseeing daily operations of the
building. He earned a salary of R28 000, 00 per month. According to Ms
Omarjee, the property owner would pay the defendant a fee to be allocated to
the building staff including the Centre Manager.
[7] It is the witness’ evidence that at some point the client elected to move from
the position of a Centre Manager to Building Manager. The position of a
building Manager has reduced responsibilities than that of a Centre Manager
with a salary reduction of R12 000, 00 per month. The consequences of this
was that the role of a Centre Manager became redundant. According to this
witness, there were consultation between the defendant and the plaintiff
regarding this position but she was not part of these consultations.
[8] A position of a Senior Property Manager was advertised in Alberton and the
plaintiff did not meet the requirements and although he applied, he was not
short-listed. The role was a senior which was two levels higher than a Centre
short-listed. The role was a senior which was two levels higher than a Centre
Manager; he would have been responsible for five Shopping Centres; he
would have to manage a larger team with bigger responsibilities with a salary
of R50 000. 00. It is the evidence of Ms Omarjee that the person who was
2 See: Edcon Ltd v Pillemer NO and others [2010] 1 BLLR 1 (SCA).
4
successfully appointed in the position had relevant experience and was more
qualified than the plaintiff.
[9] Ms Omarjee further testified that although the plaintiff would have been
assisted by giving him additional training, he would still not qualify because he
needed 5 to 8 years experience in the position of a Senior Property Manager.
The plaintiff refused to take other offers and those positions were filled. The
position of a Building Manager was also filled. The witness told the court
during cross examination that the plaintiff was offered the Building Manager
position and he declined the offer and also declined Centre Manager positions
in other shopping centres.
[10] Ms Noleen Feddern, also an employee of the defendant and a Human Capital
Executive, testified that she is responsible for the welfare of the staff,
recruitment and retrenchments. She told the court that she was involved in
the plaintiff’s retrenchment from the time when the client started discussions
about his position and throughout the whole process.
[11] According to Ms Feddern, a Microsoft Teams Meeting was held on 12 April
2022 where the plaintiff was invited to attend to discuss the client’s intended
changes to the position of Centre Manager. The plaintiff did attend the
meeting. On 13 April 2022, the discussions held in the meeting of the 12 April
2022 were reduced to writing via email to the respondent. The contents of the
email are the following:
“In terms of the way forward I have summarized our meeting below:
Mariam mentioned that the client has requested changes in terms of
Operations and downgrading the position to that of a building Manager and
explained the reasons why, o(f) which you understood. This change affects
your position directly as you currently are looking after the building, it affects
in terms of the process and the way forward
• The new Job Description will be shared with you, which is attached for
ease of reference
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• You will have the opportunity to apply for this newly created position or
not.
• Should you apply the normal internal recruitment process will run and
should you be successful you will receive an addendum to your letter
and you will be placed in that role and the process will come to an end
• Should you not be successful the process will run as follows in the 2 nd
phase, where business will be able to recruit the correct skill into the
newly created position.
• Should you not want to apply please let me know we will then go
straight to the process below to look for alternatives as mentioned in
the meeting
• The process we will then follow is as follows:
• Weekly meetings will happen
• A notice month in terms of you (sic) letter of appointment should no
alternatives be found
• Should alternatives not be found we will then retrench and go our
separate ways
• Part of the process is to look for alternatives and externally (with
permission)
• We, during this process, will look for alternative types of positions you
would like to be considered for and areas you can work in.
Should you be interested in being considered for the newly created position
please indicate before 12 on Thursday 14
th April 2022.”
[12] Several emails were exchanged between the plaintiff and the defendant and
Ms Faddern also referred the court to one written by the plaintiff on 25 April
2022 in which he said:
“First of all, I have already shown my interest i n the position of Centre
Manager in Mbombela which, I also applied on the 14 th of April 2022, which
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position was advertised on the Company’s website on the 12 th of April 2022
whilst the closing date was reflected as the 15th of April 2022.
In light of the above, I would appreciate if I can be considered for a transfer to
Nelspruit (Mbombela) take over the position of Centre Manager which was
advertised by our company (Broll), which is the same position that I’m well
conversant with at this present moment. I’m writing to you knowingly well of
the financial as well as social impact this might have on my family since that
would mean a complete isolation with the entire family, and therefore had to
embark on double expenses.
Lastly, I wouldn’t mind to apply for other positions of Building Manager, only if
I’m assured and/or guaranteed that ny current salary will not be negatively
affected as a result of the proposed company’s restructuring; hence I’ve
already indicated on my first response that I’ll be financial (sic) constrained.
Trust you find the above in order.”
[13] It is Ms Faddern’s evidence that the Emalahleni Building Manager’s position
was made available to the plaintiff but he wanted the position with the same
salary of R28 000. 00 rather than take a salary cut. The plaintiff also applied
for the Mbombela position and was successful. The salary was R15 000.00
but the defendant negotiated with the plaintiff for a salary of R18 000.00 with a
severance package but he rejected the offer. He stated that the demotion
amounted to unfair labour practice.
[14] The plaintiff’s main area of concern was the salary reduction. On 4 May 2022,
the plaintiff addressed an email to the witness as follows:
“I think last time I have indicated that, I wouldn’t mind to apply for the other
newly created position of Building Manager, only if I’m assured and/or
guaranteed that my salary will not be negatively affected as a result of the
proposed company ’s Enyuka Property Holding restructuring, and I never
signed any employment contract with Enyuka Property Holding. I signed my
signed any employment contract with Enyuka Property Holding. I signed my
employment contract with Broll Property Group: Hence I have already shown
my interest of being transferred to Mbombela where there’s vacant position of
Centre Manager within the company Broll which I have already applied as
well. For me this Building Manager position together with the salary R12 000.
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00 which has been indicated here is a demotion to me of which its unfair
labour practiced (sic). So I cant apply a demotion position, I will preferred to
be transferre to vacant position of a Centre Manager at Nelspruit
(Mbombela).”
[15] In response to the above email the witness advised the plaintiff that he may
look for alternatives, however, should there be no alternatives the process
could end up in a retrenchment. He also advised the plaintiff that a normal
interview process would take place for any position he applies for. In another
email addressed to the plaintiff, and dated 19 May 2022, Ms Feddern again
advised the plaintiff about the process that was about to start as he had
indicated he would not be applying for the new position of Building Manager at
Emalahleni. She informed the plaintiff that:
“Based on this and as per our discussions the following process will start:
• The New Replacement Position will be advertised;
• As you have confirmed you will not be applying due to the salary being
too low;
• You further confirmed you would like to look for other opportunities;
• Based on the above we will start our consultations on a weekly bases,
I will set it up
• During these meetings we will look at alternatives.
• As mentioned before should we not find alternatives by end of June
we may retrench with July being the notice month;
• Please can you send me an updated CV and areas you would like to
be considered for positions, as well as the type of position you would
like to be considered for. Can I have this by close of business today.”
[16] On 26 May 2022, according to the witness, a consultation meeting was
initiated via Microsoft Teams, the plaintiff was invited to join. On 1 June 2022
the defendant sent to the plaintiff a notice in terms of section 189 (3) of the
LRA confirming discussions and interviews held in person, via Teams and
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Zoom platforms with the plaintiff since April 2022. This notice also informs the
plaintiff that the process could possibly result in the termination of his
services.
[17] Ms Feddern testified that the plaintiff applied for the Alberton position but she
was not involved, however, she could confirm that Alberton Mall has never
had a Centre Manager but had a Senior Property Manager . She further
testified that the Economic Freedom Fighters (EFF) requested a meeting with
the defendant to take place on 27 July 2022 to discuss an alleged disregard of
the section 189 guidelines by the defendant in dealing with the plaintiff’s
matter. In this meeting the EFF did not accept the previous discussions with
the plaintiff stating that they were void and indicating that they were now
representing him. The EFF suggested that the process should start from the
beginning but according to Ms Feddern, it was too late as the process was at
the end.
[18] During cross -examination, the witness testified that when other positions
became available, it was not a case of offering such to the plaintiff but
everyone had to be given an opportunity to apply. She further stated that had
the plaintiff accepted the position of a Building Manager, he would not have to
go through the process of applying for it. She also explained that the position
in Mbombela was not proposed to him as an alternative but it was a position
he could apply for. This position was for a salary of between R12 000, 00 to
R18 000, 00 per month but the plaintiff was not prepared to take it.
[19] The plaintiff testified that he worked for the defendant and held the position of
Centre Manager at Emalahleni, in Mpumalanga. He was dismissed on 31 July
2022 after being informed by the defendant that its client was phasing out his
position as a Centre Manager and replacing it with that of a Building Manager.
His evidence was that he was not aware of the business relationship between
His evidence was that he was not aware of the business relationship between
the client and the defendant. He also did not know how it was relevant to his
employment. The plaintiff also stated that he did not know why the
defendant’s client decided to change his position from Centre Manager to
Building Manager.
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[20] Commenting on the email dated 13 April 2022 which was a confirmation of a
meeting held on 12 April 2022, the plaintiff told the court that nothing in the
email indicated that he C ould take up the position without applying for it. His
understanding of the second light bullet in this email, stating: “You will have
the opportunity to apply for this newly created position or not.” was that he
needed to apply for the position to be able to occupy it. His understanding
was that should he be interested in applying, the normal recruitment
processes would apply and that he would have to do so by sending his CV
and be invited for an interview.
[21] The applicant responded to the email by stating that he did not have a
problem with the defendant’s client intending to make changes that affect his
position as a Centre Manager provided it will not affect his salary. He further
stated that as it was, he was experiencing financial constraints and could not
take the news of his demotion very well. In this email, the plaintiff included a
list of his expenditures and made a request to be transferred to another
shopping centre managed by the defendant anywhere around Gauteng, Nor th
West, Limpopo, Free State and Northern Cape Provinces.
[22] He testified that his request was to be moved from the position he occupied to
another building to avoid becoming a Building Manager and take a salary
reduction. The plaintiff stated that although there were meetings between him
and Ms Feddern, these according to him were instructions as he was just
being informed of what would happen. The defendant placed no alternatives
before him . He told the court that he, on his own, sent applications for
employment for five positions that were vacant in Witbank, Mbombela,
Everton, Alberton and North West Province. All these positions were for a
Centre Manager.
[23] Following these applications, the plaintiff was called for an interview only in
[23] Following these applications, the plaintiff was called for an interview only in
the North West Province. Although the interview was successful, he could not
opt for a salary of R15 000. 00. According to the plaintiff, the defendant did
not inform him of these positions but he, on his own, saw pop- ups from the
defendant’s website of the advertised positions and applied. On 12 July 2022,
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the plaintiff was offered a month’s contract for the month of August 2022
penned by Ntombifuthi Shongwe, which he accepted.
[24] He confirmed that Microsoft Teams meetings were held during June 2022 and
stated that, during t he meetings he proposed alternatives to the defendant to
stay at his current salary of R28 900. 00. He was told that this was impossible.
The plaintiff further told the court that during this process, he requested that
he at least be paid his salary of R28 000, 00 for a period of three months
pending a review of the situation and this was not successful. Therefore, his
evidence is that he was prepared to take a salary reduction after at least three
months and there should not have been a process of applying.
[25] In essence, what the plaintiff asserted was that the defendant was never
involved in his attempts to be placed in an alternative position in order to
avoid his retrenchment. He was never informed about any employment
opportunities and there was no form of assurance that he could be transferred
to those positions. Despite the fact that his position was affected by the
changes the client wanted to implement, he still had to go through the normal
processes and apply for alternative positions and go through interviews while
there were no guarantees that he would be appointed in any of the positions.
[26] The following factors are common cause:
26.1. The plaintiff was the employee of the defendant;
26.2. He started working for the defendant on 18 December 2020 until 31
July 2022 when he was dismissed;
26.3. It was an individual dismissal for operational requirements;
26.4. He was a Centre Manager and earned a salary of R28 900. 00 per
month;
26.5. Accepting the lower position of a Building Manager meant he had to
take a salary deduction.
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[27] The plaintiff disputed that before he was dismissed, the respondent entered
into a proper consultation process with him and stated that the respondent
failed to take any steps possible to mitigate the effects of retrenchment;
[28] In this trial, the court must determine the following issues:
28.1 Whether there was a commercial rationale for the decision to dismiss
the plaintiff
28.2 Whether the plaintiff ought to have been offered another position or
given a similar position elsewhere without taking a salary reduction;
28.3 Whether the provisions of section 189 of the LRA were complied with
when the plaintiff was dismissed;
28.4 Whether the dismissal was fair, if so, whether it was procedural ly fair
under the circumstances.
[29] The LRA recognises the following grounds on which a termination of
employment might be legitimate: the conduct of the employee; the capacity of
the employee; and the operational requirements of the employer’s business. It
is stated in section 188 (1) of the LRA that a dismissal that is not automatically
unfair, will be rendered unfair if the employer fails to prove that the reason fo r
dismissal is a fair reason related to the employee’s conduct or capacity or that
it is based on the employer’s operational requir ements. The employer must
also prove that the dismissal was a ffected by a fair procedure. If the employer
fails to prove the above, or fails to prove that the dismissal was a ffected in
accordance with a fair procedure, it renders the dismissal unfair.
[30] The LRA, permit s dismissals based on the employer’s operational
requirements, and recognises that the employer may be justified to rely on its
operational requirements to end the employment relationship with its
employee; however, this must be done fairly. In BMD Knitting Mills (Pty) Ltd v
SA Clothing and Textile Workers Union
3 the Labour Appeal Court ( LAC)
3 (2001) 22 ILJ 2264 (LAC) at para 19.
12
described the formula when assessing the substantive fairness of a
retrenchment as follows:
“The word ‘fair’ introduces a comparator that is a reason which must be fair to
both parties affected by the decision. The starting-point is whether there is a
commercial rationale for the decision. But, rather than take such justification
at face value, a court is entitled to examine whether the particular decision
has been taken in a manner which is also fair to the affected party, namely
the employees to be retrenched. To this extent the court is entitled to enquire
as to whether a reasonable basis exists on which the decision, including the
proposed manner, to dismiss for operational requirements is predicated.
Viewed accordingly, the test becomes less deferential and the court is entitled
to examine the content of the reasons given by the employer, albeit that the
enquiry is not directed to whether the reason offered is the one which would
have been chosen by the court. Fairness, not correctness is the mandated
test.”
[31] It is common cause that the plaintiff’s dismissal was for operational reasons. It
was alleged by the respondent that its client intended to downgrade the
position of a Centre Manager at the Emalahleni Shopping Centre where the
plaintiff was stationed. Although the plaintiff stated that he was not aware that
there was another company acting as the respondent’s client, but that the
respondent employed him, he did not dispute the averment that the
respondent’s client was downgrading his position. Considering the fact that
the respondent’s business involved managing business centres on behalf of
their clients, it may be accepted that there was a commercial rationale for the
decision taken to phase out the plaintiff’s position.
[33] Although this might be the position, the plaintiff contended that he s hould
have been placed in another or a similar position elsewhere, without taking a
salary reduction. Under these circumstances, this court is entitled to examine
salary reduction. Under these circumstances, this court is entitled to examine
whether the decision taken to dismiss the plaintiff was taken in a manner that
is fair to the plaintiff or not. This involves the application of a value judgment
into fairness and therefore the court has to conduct this examination while
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applying fairness and not correctness in order to strike a fair balance between
the parties’ respective interests.
[34] In casu, while exercising the value judgment to balance the parties’ competing
rights and interests, it is clear that the decision to downgrade the plaintiff’s
position, which resulted in the plaintiff’s dismissal, came from the
respondent’s client while restructuring his own business. It does not seem like
the defendant had any say in their client’s decision. All the defendant had to
do was to find alternative positions to try and avoid a dismissal of the plaintiff
especially because the dismissal had nothing to do with his conduct.
[35] The evidence of the defendant was that the plaintiff was offered the position of
a Building Manager at the same shopping centre with a reduction of more
than 50% of his then salary. For the position of a Centre Manager he earned
R28 000, 00 per month while the new position would have paid him R12 000,
00 per month. His evidence was that he suggested to the defendant that he
could at least take a salary reduction after three months but this suggestion
was in vain.
[36] Mariam Omarjee’s evidence was that the plaintiff refused to accept other
offers until those positions were filled. The plaintiff had a few issues against
this suggestion, firstly, for the positions suggested by the defendant, he would
have to take a salary reduction of more than 50% of his salary . Secondly, the
defendant still expected him to apply for the positions and go through an
interview process, where, if unsuccessful he would not be hired. T hirdly, the
positions he applied for were not suggested as an alternative to him by the
defendant although they had been advertised in the defendant’s website.
[37] Although the defendant’s version was that the position of a Building Manager
at Emalahleni shopping Centre was there for the taking if the plaintiff wanted
it, in an email sent to the plaintiff dated 13 April 2022, the defendant
it, in an email sent to the plaintiff dated 13 April 2022, the defendant
summarized what transpired in a meeting that happened on 12 April 2022. In
this summary of the meeting, it is clear that the plaintiff is informed of the new
changes as requested by the defendant’s client to downgrade his position to
that of a Building Manager.
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[38] It is also clear that the way forward suggested by the defendant was that the
plaintiff would have “the opportunity to apply for this newly created position or
not.” In the same email, the plaintiff is informed that should he apply , the
normal internal recruitment process will run and should he be successful he
will be placed in that role and the process will come to an end. Furthermore,
he is informed that s hould he not be successful, the business will be able to
recruit the correct skill into the newly created position. This means that the
position of a Building Manager was not there for the taking, even if the plaintiff
was interested in it, he would have to go through the recruitment process and
apply for it.
[39] Sh
o uld the defendant have offered the plaintiff the position of a builder or any
other position without following the recruitment processes? A similar issue
was dealt with in South African Breweries (Pty) Ltd v Louw 4, where the LAC
accepted that scenario and held that it is permissible to use a competitive
recruitment process in the course of providing for retrenchment avoidance
measures and stated:
“An employer, who seeks to avoid dismissals of a dislocated employee, and
who invites the dislocated employee to compete for one or more of the new
posts therefore does not act unfairly, still less transgresses sections 189(2)
(b) or 189(7). The filling of posts after a restructuring in this manner cannot be
faulted. Being required to compete for such a post is not a method of
selecting for dismissal; rather it is a legitimate method of seeking to avoid the
need to dismiss a dislocated employee.”
[40] Regarding the employee’s failure to apply for the relevant position the LAC
proceeded to remark as follows:
“To move to the impact of this issue on the substantive fairness contention,
the so-called unfair selection criteria issue could have had no bearing at all on
the failure to be appointed to the Aliwal North area manager post. Louw never
the failure to be appointed to the Aliwal North area manager post. Louw never
applied for that post, despite an invitation to do so. The premise of the
judgment a quo is that he should have been given it without competing. That
finding is without foundation on the facts or on the law. If Louw applied for the
4 (2018) 39 ILJ 189 (LAC) at para 22. See also: Telkom SA SOC Limited v van Staden and Others
(2021) 42 ILJ 869 (LAC).
15
George area manager post, he had no good reason not to apply for the Aliwal
North post if he wanted the post. The evidence discloses that he declined the
prospect of taking up the Aliwal North post by failing to apply for it. Moreover,
as already addressed, a competitive process to seek to av oid retrenchment is
not unfair.”5
[41] It is the duty of the employer to demonstrate that retrenchment of the
employee came as a last resort and that there were no other alternatives
available to save his employment. Substantive fairness requires the empl oyer
to show that it has exhausted all other options before the decision to retrench
the employee was taken. What is important in this assessment is whether
there is any available work that the affected employee can perform to avoid
being retrenched. If such a position exists, fairness dictates that the employer
should offer it to the affected employee.
[42] To try and avoid the plaintiff’s retrenchment, the defendant offered the plaintiff
a position at Emalahleni Shopping Centre which he refused to take because it
meant taking a salary cut. The plaintiff applied for the position of Centre
Manager at Mbombela and was successful, he refused to take that position
with a salary of R15 000. 00. The defendant negotiated a salary of R18 000.
00 plus a severance package which the plaintiff still refused to accept. The
plaintiff contended that he could have been offered the position at Alberton
Mall, however, that position was of a Senior Property Manager for which he
needed training and more experience. For these reasons, he did not qualify
for the position of a Senior Property Manager at Alberton.
[43] Furthermore, the plaintiff applied for a position at Mahikeng, North West, of a
Centre Manager, he was invited for an interview and his application was
successful. He rejected the position because the salary was R15 000. 00.
Even though some of the positions were offered to the plaintiff and some he
Even though some of the positions were offered to the plaintiff and some he
discovered on his own from the defendant’s website, it does not seem like the
plaintiff was focussed on saving his employment but his main area of concern
was the salary reduction. He, in other words, chose to be retrenched rather
than to take a salary reduction. My view is that there exists a reasonable basis
5 Ibid at para 26.
16
on which the decision to dismiss the plaintiff for operational reasons was
predicated, and that the plaintiff’s dismissal was substantively fair.
[44] Having found that the plaintiff’s dismissal was substantively fair, I now have to
determine if it was procedurally fair or not. C oncerning procedural fairness,
the main cause of disagreement between the parties pertains to whether the
decision underpinning the section 189 process was taken before the plaintiff
was consulted. The plaintiff contends that the meetings and discussions held
with the defendant before his dismissal were not meaningful, they were not
done in good faith and they were meant only to tick section 189 boxes.
[45] It must be borne in mind that an employer has the prerogative to accept or not
to accept proposals of the other consulting party depending on the viability of
the proposal to the business of the employer. The purpose of consultation is
to seek consensus and there is no requirement that the parties should reach
an agreement6.
[46] In General Food Industries Ltd v FAWU7 the court’s remarks were that:
“The employer must afford the other party the opportunity to make
representations on any relevant issue. Bona fide consultation necessarily
implies that the employer must seriously consider and evaluate the
representations. If the employer does not agree with them, he must state his
full reasons for rejecting them. After consultations have been exhausted the
employer must decide whether to proceed with the retrenchments or not. The
loss of jobs through retrenchment has such a deleterious impact on the life of
workers and their families that it is imperative that - even though reasons to
retrench employees may exist, they will only be accepted as valid if the
employer can show that all viable alternative steps have been considered and
taken to prevent the retrenchments or to limit these to a minimum.”
[47] In terms of section 189(1) of the LRA, an employer’s obligation to initiate
[47] In terms of section 189(1) of the LRA, an employer’s obligation to initiate
consultation is triggered when an employer contemplates dismissing one or
more employees for reasons of the employer’s operational requirements.
6 See: Solidarity obo Members v Barloword Equipment Southern Africa and Others (2022) 43 ILJ
1757 (CC)
7 (2004) 7 BLLR 667 (LAC) at para 55.
17
Discussions between the plaintiff and the defendant relating to the
defendant’s client’s intention to downgrade the plaintiff started during April
2022. During these discussions the parties discussed possible offers to the
plaintiff to retain his employment and the plaintiff also made suggestions and
applied for some positions, in some instances successfully and unsuccessfully
in some.
[48] Section 189 (3) was triggered when the plaintiff rejected the offer to occupy
the position of the Building Manager. It is common cause that a section 189
(3) notice was sent to the plaintiff and in this notice the plaintiff was informed
of the following:
48.1. Reasons for the proposed retrenchment;
48.2. Alternatives to the retrenchment considered by Management;
48.3. Number of employees likely to be affected by the retrenchment;
48.4. Time and period during which the operational retrenchment could take
place;
48.5. Severance benefits;
48.6. Assistance the company may offer such as possible alternatives to
avoiding the retrenchment; minimizing the number of affected persons;
time during which the retrenchment will take place; Severance pay;
measures to mitigate the adverse effects of the retrenchment and the
method of selecting the employees to be retrenched.
[49] The evidence in this trial revealed that consultations took place between the
plaintiff and the defendant via several Zoom and Microsoft Teams meetings
and some of the discussions were reduced to writing via emails exchanged
between them. Most importantly is the email of 19 May 2022 written by Ms
Feddern to the plaintiff in which she advises that she will be setting up for
consultation meetings to take place on a weekly basis. According to Ms
Feddern, these meetings would seek to find alternatives and advising that if
18
there are no alternatives, then the process of retrenchment might follow
during July 2022.
[50] Several meetings were held and several emails exchanged. Through it all, it is
clear, even from the evidence that the plaintiff woul d not accept a salary
reduction, hence the dismissal. Due processes to avoid a dismissal, in my
view, were adequately followed and meaningful consultations were held,
however, the plaintiff was hell-bent on refusing to take a salary reduction even
in positions that ordinarily paid a lower salary than his previous one. I am of
the respectful view that the plaintiff’s dismissal was substantively and
procedurally fair.
[51] In the result, the following order is made:
Order
1. The Plaintiff’s claim is dismissed;
2. Each party to bear own costs.
__________________
L. Vukeya
Acting Judge of the Labour Court of South Africa
Appearances:
For the Plaintiff:
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KM Montjane
Instructed by
Mitti Attorneys Inc.
For the Defendant
Adv Van As
Instructed by
Fluxmans Incorporated