THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JA106/24
In the matter between:
TSOGO SUN CASINOS (PROPRIETARY)
LIMITED T/A EMNOTWENI CASINO Appellant
and
SOUTH AFRICAN COMMERCIAL
CATERING AND ALLIED WORKERS UNION
(SACCAWU) OBO MAVUSO, NOHLANHLA
AND 2 OTHERS Respondent
Heard: 11 November 2025
Delivered: 27 November 2025
Coram: Mahalelo ADJP, Waglay et Djaje AJJA
___________________________________________________________________
JUDGMENT
___________________________________________________________________
WAGLAY, AJA
Introduction
[1] This appeal concerns the substantive and procedural fairness of the dismissal
of the three individual employees (individual employees) following a
2
retrenchment process undertaken by the appellant which the Labour Court
found to be unfair.
[2] The appellant appeal s against the whole judgment and order of the Labour
Court dated 5 April 2024.
[3] The appeal is opposed by the South African Commercial Catering and Allied
Workers Union (Union), acting on behalf of the individual employees.
Background
[4] The individual employees, along with one other employee, were hired by the
appellant to work as crèche attendants responsible for the provision of
childcare services at the Emnotweni Casino.
[5] Following the declaration of the national lockdown due to the COVID -19
pandemic in March 2020, on 26 March 2020, the crèche was closed, and the
employees were placed on layoff. Although the employees were not
remunerated during this period, the appellant continued to pay towards their
contractual benefits, including medical aid and death and disability insurance
benefits.
[6] While the casino reopened for business in July 2020, the crèche remained
closed, and consequently, the employees remained on layoff.
[7] On 27 September 2021, some 18 months after the initial closure of the
crèche, the appellant issued the employees with a notice in terms of section
189(3) of the Labour Relations Act
1 (LRA). Per the notice, the employees
were informed that, as it was unlikely that the crèche would be reopened at
any time in the foreseeable future, the appellant proposed the closure of the
facilities and the declaration that the crèche attendant positions were
redundant. The employees were therefore invited to consult with the appellant
on their possible retrenchments and to make proposals of alternatives to
avoid same.
1 Act 66 of 1995, as amended.
3
[8] The consultations took place over the course of three months, with four
consultation sessions being scheduled, commencing on 27 September 2021
and continuing to around 12 November 2021, during which the employees
were given an opportunity to make representations and proposals. The
consultations proceeded individually with each employee, although all
consultations were scheduled on the same days . Minutes were kept by the
appellant of each consultation meeting.
[9] It is common cause that the Union was not involved in the consultation
process, and the individual employees represented themselves.
[10] During the consultation process, several alternatives had been proposed by
the individual employees, the implementation of a rotational shift system when
operating the crèche or the deployment of the employees to different business
units, including cleaning or reception services. It was determined by the
appellant that these proposals were not feasible given the impact of the
COVID-19 pandemic on the business of the appellant ; consequently, these
proposals were rejected.
[11] The individual employees also proposed that the creche be outsourced to
them. The employer agreed to revert to them on this issue.
[12] On or around 18 October 2021, a voluntary retrenchment package (VSP) was
offered to the employees, which offer would lapse on 27 October 2021.
[13] Only one employee accepted the VSP, while the individual employees
rejected the proposal, and the consultation process continued with respect to
them.
[14] Despite consultation meetings being scheduled and/or rescheduled for 29
October, 4 November, and 12 November 2021, none of the individual
employees attended these sessions. It is not known if the response to the
outsourcing of the crèche was supposed to have been communicated at any
of these meetings; clearly, the response would not have been positive, having
regard to the further conduct of the employer.
4
[15] On 17 November 2021, the individual employees were dismissed.
[16] Following a referral of the dispute to the CCMA, resulting in the issuing of a
certificate of non- resolution, the individual employees, represented by the
Union, approached the Labour Court for relief.
In the Labour Court
[17] The respondent Union referred an unfair dismissal claim alleging that the
individual employees’ dismissal on the grounds of the appellant’s operational
requirements was both procedurally and substantively unfair in that, on
procedural fairness:
17.1 The appellant failed or otherwise refused to consult with the Union
despite a request to do so and the provisions of s 189 (1)(b)(ii) or (c) of
the LRA , which obliges the appellant to involve the Union in the
consultation process;
17.2 The decision to retrench the individual employees had already been
taken, as an application to close down the crèche had been made to
the gaming board before the consultation process took place, i.e. the
retrenchment was a fait accompli;
17.3 The appellant failed to make any proposals to avoid retrenchment
during the consultation process;
17.4 The appellant failed or otherwise refused to disclose information to the
individual employees during the consultation process; and
17.5 The individual employees’ proposals to avoid retrenchment were
rejected without proper consideration.
[18] On substantive fairness, the Union submitted that the appellant should have
absorbed the individual employees into different positions within its workplace,
implemented short-time with respect to its employees or, in the alternative, the
appellant should have outsourced the crèche to the individual employees.
5
[19] On the selection criteria, the Union raised two impugns: (i) that there existed a
discrepancy on which criteria would be used; and (ii) that there was no
consultation on the selection criteria.
[20] All in all, the Union alleged that the appellant failed to comply with s189 of the
LRA in its dismissal of the individual employees.
[21] It was the appellant’s case that it did not maintain a recognition agreement or
a relationship with SACCAWU or indeed any other union within its workplace,
and that the consultation process was preceded by litigation and
correspondence between the appellant and the U nion regarding its
organisational rights, which culminated in an understanding that , as the
Union’s constitution did not extend to the gaming and gambling industry
(within which the appellant is engaged), the Union could not enjoy rights
within the workplace. Thus, at the time of the consultations, the appellant was
unaware that the individual employees belonged to a union. Further to this,
and during consultations, the individual employees had not indicated that they
sought to be represented by a union, nor did they indicate that they were
members of any union. In that respect, the appellant had continued the
consultation process directly with the employees.
[22] On procedural fairness, the court a quo found that the appellant had
undertaken a ‘tick box approach’ to the consultation process, having already
decided to dismiss the employees and was merely going through the statutory
processes to give credence to its decision to retrench the individual
employees. This, according to the court a quo, was demonstrated by the
appellant’s refusal to allow the individual employees to take copies of the VSP
home to read and consult over it and the failure to permit union representation
during the course of the consultation process.
[23] On substantive fairness, the court a quo agreed with the individual employees
that the appellant had failed to seriously and genuinely consider the
that the appellant had failed to seriously and genuinely consider the
alternatives to retrenchment that the individual employees had proposed.
This, coupled with the appellant’s failure to offer available alternative
6
employment to the individual employees, rendered the retrenchment
substantively unfair.
[24] Further, the court a quo held that, as it was the evidence of the appellant that
the crèche attendant positions were necessary within the appellant’s
organisational structure due to regulatory requirements, by retrenching the
employees only to later outsource these positions to third parties despite
rejecting the individual employee’s earlier proposal to outsource the crèche to
them, the appellant’s conduct could only lead to the inference that the
retrenchment process was neither genuine nor in good faith.
[25] The court a quo thus found in favour of the individual employees and ordered
their reinstatement, curiously though with full backpay.
On appeal
[26] The appellant appeal s against the whole of the judgment of the court a quo
and advances five points in support of its case: that the court a quo:
26.1 reached the wrong conclusion in the context of the evidence in relation
to the genuine and bona fide nature of the consultation process and
possible alternatives;
26.2 reached the wrong conclusion in relation to the appellant’s involvement
of the Union during the consultation process;
26.3 failed to consider the appellant’s legal argument and failed to apply the
relevant legal principles in respect of the finding of substantive
unfairness;
26.4 failed to properly consider the evidence relating to the impracticality of
reinstating the employees; and
26.5 reached the wrong conclusion in the context of the evidence in relation
to the order of reinstatement.
Appellant’s submissions
7
[27] The appellant argued that it was not the respondent’s pleaded case that the
retrenchment of the individual employees was a sham or a foregone
conclusion, in that the appellant had already decided to dismiss the
employees and was simply going through the motions to complete the s189
process. Furthermore, in concluding that the appellant did not consider the
alternatives proposed by the individual employees to avoid retrenchment,
including their placement in alternative positions, the court a quo had failed to
consider the evidence of the appellant, which showed a consideration and
response to the alternatives proposed.
[28] On union representation, the appellant impugned the court a quo’s findings
that, as the appellant was deducting monthly subscription fees or union dues
from the salaries of the individual employees, the court was unconvinced by
the appellant’s argument that it was unaware of the individual employees ’
membership of SACCAWU. On this finding, the appellant contends that the
deduction of subscription fees was never evidence led during the hearing, and
it has remained the evidence of the appellant that it did not maintain any
relationship or recognition agreement with SACCAWU or any other union, and
thus no subscription fees or union dues were being deducted from the
individual employees’ salaries.
[29] On substantive fairness, the appellant argues that despite finding that no
challenge was mounted by the respondent with respect to the rationale for the
proposed retrenchment and that the crèche services were later outsourced to
a third party, the court a quo still found that the individual employees should
be reinstated despite the legal principles concerning the appropriateness of
reinstatement in instances where the substantive fairness of a retrenchment is
unchallenged or otherwise accepted and what rem ains is a procedural
unfairness claim.
[30] On the appropriateness of the reinstatement of the individual employees, the
[30] On the appropriateness of the reinstatement of the individual employees, the
appellant argues that the court a quo’s finding of reinstatement and backpay
is at odds with its acceptance of the appellant’s evidence that the crèche
positions were no longer a part of the appellant’s organisational structure as
the crèche function had been outsourced to a third party and thus the
8
individual employees could not be reinstated into these positions. Further,
despite the finding that the individual employees, by failing to attend further
consultations, had frustrated the process and had added to whatever
perceived procedural unfairness they had suffered during the consultation
process, the court still found an order of reinstatement with full salaries and
employment benefits to be appropriate. Finally, and in ordering retrospective
backpay in circumstances where, for nearly two years aft er the dismissal, the
creche remained closed, this order was at odds with the facts before the judge
a quo. Finally , the court failed to take into consideration that the individual
employees had been paid severance pay at the time of their retrenchment.
Respondent’s submissions
[31] On the point that it failed to plead that the consultation process was a sham,
the respondent impugns this contention, referring back to the statement of
case and the pre- trial minute to demonstrate the instances in which it had
referred to the consultation process being merely a tick box exercise.
[32] The respondent submits that the consultation process was neither genuine
nor bona fide due to the appellant’s failure to propose any alternatives to
retrenchments; rather, the appellant had simply made sweeping but vague
statements around its consideration of alternatives without explicitly indicating
what alternatives it had considered. Instead of listing alternatives considered
by the appellant, the s189(3) notice merely states that the appellant was
willing to consider voluntary retrenchment or mutually agreed terminations,
and these did not qualify as alternatives, or so the submission goes.
[33] Turning to the alternatives proposed by the individual employees, the
respondent contends that the appellant had rejected the otherwise viable
proposals made without proper investigation or consideration, where some of
the reasoning provided in the rejection of the employee’s proposals was
the reasoning provided in the rejection of the employee’s proposals was
nonsensical (to the employees) and proposals were rejected outright, with the
exception of the proposal of placing the employees in alternative positions
and the outsourcing of the creche to them . Instead, the respondent contends
9
that the appellant was more interested in persuading the individual employees
to accept the VSP.
[34] The respondent disputes that the appellant was not aware of the individual
employees’ membership with SACCAWU but contends that the appellant
chose not to consult with the union because it did not recognise it, despite the
provisions of s 189(1)(c) which required consultation with a union whose
members were likely to be impacted by the contemplated retrenchment
processes. On this point, the respondent further contends that the appellant’s
submission that it was not aware that the individual employees were members
of the U nion was at odds with its evidence at the trial, in which the late Mr
Silaule (the appellant’s representative during the consultation process) had
indicated that (i) he was aware that at least one of the individual employees
was a union member as she had previously been represented by SACCAWU
during an unfair dismissal dispute and that this same employee had called a
union representative, Mr David Teffo, during the consultation process to
consult on the VSP ; (ii) that he was aware that SACCAW U had previously
sought organisational rights within the organisation; and (iii) that during the
consultation process at least one employee had indicated that they wished to
be assisted by ‘someone’, which may have been a reference to union
assistance whilst another employee outright asked for union representation
during the first consultation as she did not understand the contents of the
s189(3) letter. On these bases, the respondent contends that the appellant
knew that the individual employees were SACCAWU members and
deliberately did not involve the union in the s189 process taking place.
[35] The respondent further argues that despite the reason for the dismissals
being due to the redundancy of the crèche attendant positions, these
positions were not permanently redundant, and despite the individual
positions were not permanently redundant, and despite the individual
employees’ willingness to remain on layoff until the crèche reopened, they
were ultimately retrenched. On this basis, the dismissals were without a
legitimate reason and substantially unfair.
[36] Turning to the relief granted by the court a quo, the respondent impugns the
appellant’s argument that, as the crèche services have since been
10
outsourced, the reinstatement of the individual employees was not
appropriate on the grounds that the appellant failed to demonstrate how, in
accordance with s 193 that the reinstatement of the employees was
reasonably impracticable, and without evidence that the respondent was
dilatory in pursuing their case, there is no reason why the employees should
not be reinstated with full salaries and benefits.
[37] I turn now to consider the grounds of appeal.
Evaluation
Substantive fairness
[38] The court a quo found that no challenge had been brought with respect to the
substantive fairness of the retrenchment process insofar as it relates to the
rationale for the retrenchment process, in that no outright challenge to the
reason for retrenchment is mounted by the respondent during the Labour
Court proceedings. The respondent now, in its submissions before this Court,
seeks to raise the issue of substantive fairness, arguing that the dismissal of
the individual employees was without a legitimate reason, as evidenced by
the fact that the crèche positions were not permanently redundant , as, about
two years after the dismissal, these positions were outsourced to a third-party
service provider.
[39] While I agree with the respondent that there is a fair amount of overlap
between the concepts of substantive and procedural fairness within our law in
that, elements pertaining to procedural fairness may implicate the substantive
fairness of the dismissal, with specific focus on the challenge of there being
no legitimate reason for the redundancy of the individual employees, and
without a cross -review challenging the court a quo’s finding in this respect, it
is not open to this Court to entertain this point.
[40] The appellant submits that in finding that the retrenchment process was a
sham, despite the respondent ’s failure to plead same, the court a quo had
11
erred. The respondent disputes this, providing documented instances within
its papers in which it had pleaded that the retrenchment process was a sham
and dismissal was a predetermined decision. On a reading of the statement of
case, it is clear that the respondent alleges that, by failing to provide or to
consider the alternatives proposed by the individual employees, the appellant
had conducted the consultation process as a mere formality or in a tick box
manner, and that the dismissal of the employees was a predetermined
conclusion. On this point, it cannot be said that the respondent had not
pleaded or otherwise led evidence on this point.
[41] However, it is simply not enough to allege that a consultation process was a
sham; rather, the evidence must show that the employees’ dismissals were
indeed a foregone conclusion. The court a quo’s finding that the dismissals
constituted a fait accompli appears to rest on three considerations: (i) the
appellant’s refusal to allow employees to take the VSPs home to consult and
reflect upon it; (ii) the exclusion of the union from the process; and (iii) the
appellant’s failure to ‘ genuinely’ consider the alternatives proposed by the
individual employees.
[42] An accusation of a disingenuous consultation process strikes at the heart of
s189(2), which requires that consulting parties engage in a meaningful joint
consensus-seeking process. As held by the Constitutional Court in Solidarity
obo Members v Barloworld Equipment Southern Africa and others
2:
‘… for a consultation process to be meaningful, in the context of section 189,
the employer must keep an open mind, disclose sufficient information to
enable consulting parties to make informed representations, and seriously
consider the representations. This entails that the employer is under an
obligation to furnish reasons for rejecting representations after it has
considered them carefully. Approaching the consultation with a predetermined
considered them carefully. Approaching the consultation with a predetermined
outcome and failure to provide reasons for rejecting representations will
render the consultation process not meaningful.’
[43] Can it be said that by refusing to allow the individual employees to take home
copies of the VSP that the appellant failed to meaningfully consult? Although
2 2023 (1) BCLR 51 (CC) (Barloworld) at para 46.
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the appellant refused to allow the individual employees to take the document
home under the banner of confidentiality, it was the evidence of the appellant
that during the consultation, it was open to the employees to discuss and
consult with anyone regarding the content of the VSP and such an opportunity
was taken up by Ms Mavuso who was allowed to privately, telephonically
speak to one David of the Union to discuss the document, resulting in her
returning with a decision to not sign it . Ms Mavuso, in her evidence, indicated
that she had read the VSP to David Teffo, a union representative f rom
SACCAWU, who advised her not to sign the document, and it is based on this
advice that she acted.
[44] For reasons unknown, none of this evidence appears to have been
considered within the judgment of the court a quo of whether the consultation
process fell within s189(2), rather the court holds that, by refusing the
employees to take the VSP home and to consult on it, the appellant had
adopted a ‘take it or leave it’ approach to the consultation process and
‘deprived the affected employees of the ability to apply their minds and solicit
advice from their union representatives or any other third party’. This finding is
clearly at odds with the evidence presented by both parties where it was clear
that although the VSPs remained in the appellant’s possession, the
employees were given a period of approximately 10 days to consider the
document and were given an opportunity to consult any third party as to its
content, and that in the case of Ms Mavuso, she had used this opportunity to
consult with her union representative who advised her not to sign the
document and she acted in accordance with this advice.
Procedurally unfairness
[45] Turning to the question of whether the appellant genuinely considered the
alternative proposals made by the individual employees, it was the evidence
of the respondent that during the consultation process, various alternatives
of the respondent that during the consultation process, various alternatives
were proposed by the employees, including their re-deployment to other
departments within the organisation, the outsourcing of the crèche to the
individual employees, the implementation of a rotational shift system to
stagger crèche employees or the continued layoff of the employees until the
13
crèche reopened, however as all but one of these proposals were immediately
rejected during the consultation meetings, it was clear , so the respondent’s
submission goes, that the appellant had already decided on the dismissal of
the individual employees.
[46] The appellant’s response to the alternatives proposed was unequivocal: they
were simply not viable. Most , if not all , of the appellant’s departments were
limping, given the impact of the pandemic on the business’s operations. There
was also uncertainty as to when or whether the crèche would reopen.
Accordingly, the options of either continued layoff , a shift system or
outsourcing the crèche operations to the individual employees made little
sense where the future of the crèche itself was unclear. Moreover, in relation
to outsourcing, the appellant is correct in its submission that this proposal
would not have avoided the retrenchment of the employees, as they would
first need to be dismissed before being re- engaged as service providers
anyway. It also bears noting that the crèche had remained closed for
approximately 18 months prior to the contemplated retrenchment and for a
further two years thereafter. In such circumstances, it would have made little
sense to outsource an operation when its reopening was so uncertain. This
uncertainty extended beyond the crèche to other business units of the
appellant, where similar restructuring processes were under consideration,
leaving no alternative positions into which the affected employees could be
redeployed, as possible downsizing or short -time measures were also being
contemplated.
[47] It seems the respondent’s impugn on the appellant’s treatment of the
individual employee’s alternatives to retrenchment is centred around the point
that all but one of the alternatives proposed were rejected as soon as they
were raised during the consultation meetings , thus none of the alternatives
were carefully considered; however, it cannot be said that there is no
were carefully considered; however, it cannot be said that there is no
meaningful consultation process undertaken simply because an employer
presents answers to questions as and when they are raised. This is even
more so where such reasons or responses are directly linked and based on
the rationale for the retrenchment process as communicated to the employees
14
in the notice and during the consultations (and not challenged by the
respondent during the trial).
[48] As held by this Court in TWK Agri (Pty) Ltd v Wagner & others 3, the
consultation process requires that the parties engage with each other
meaningfully to find appropriate solutions and alternatives where they exist ,
and where no alternatives exist , it does not mean the consultation process
was a sham, but rather that retrenchment had become unavoidable. It bears
repeating that a retrenchment process is not unfair simply because the
proposals of the affected employees are rejected, nor is there a statutory
requirement for consulting parties to reach an agreement during the
consultation process.
4
[49] On consultations during retrenchment processes, s 189(1) establishes a strict
hierarchy of parties to be consulted with in the event of contemplated
retrenchment. Where no collective agreement is in place, and no workplace
forum exists, the Act requires an employer, in terms of s189(1)(c), to consult
with any registered trade union whose members are likely to be affected by
the proposed retrenchments and where there is no such trade union, only
then can an employer consult directly with the employees likely to be affected
or their representatives. Thus, it is not open to an employer to circumvent this
hierarchy when consulting on possible retrenchments.
[50] It was the evidence of the respondent that all three of the employees were
members of the Union and that they had all requested union representation
during the consultation process. In contrast, it was the evidence of the
appellant that the individual employees did not request union representation
and, instead, had made vague utterances of wishing to consult with or
otherwise speak to ‘someone’ regarding the contents of the VSP. On that
basis, the appellant contends that at the time of the consultation (i) it was not
aware that the individual employees wanted to consult a trade union about the
aware that the individual employees wanted to consult a trade union about the
proposed retrenchments; (ii) the individual employees did not indicate that
3 (2018) 39 ILJ 797 (LAC) at para 24.
4 Barloworld supra.
15
they were members of a trade union; and (iii) the appellant was unaware that
the employees belonged to a trade union.
[51] Before the court a quo were two mutually destructive versions concerning
what occurred during the consultation process with respect to whether union
representation was sought and refused, while the appellant asserts that it was
unaware of the employees’ membership, the respondent assert that not only
was the employer aware of this, but it had prevented the individual employees
from obtaining union representation under the guise that the union was not
recognised within the workplace. Despite this, the court a quo did not
undertake an analysis to test the versions before accepting that of the
respondent.
5 Rather, the court focused its attention on the assumption that, as
the individual employees claimed that their salaries were subjected to
deductions with respect to union subscriptions or dues, the appellant was
aware that they were SACCAWU members, despite no evidence being led in
this respect.
[52] On a proper analysis, the court would have picked up on the contradictions in
the individual employees’ oral evidence versus what was contained in the
respondent’s statement of case which states that the issue of union
representation was discussed as early as the first consultation meeting of 27
September 2021 when the employees ’ requested union representation and
were told that the consultation process was private, confidential, between
employer and employee and that the union was not recognised in the gaming
industry.
[53] It was the evidence of Ms Mavuso that no mention of the union was made
during the first consultation meeting and that her first mention of trade union
representation was made at a later meeting of November 2021 when she
indicated that she was unwilling to sign the VSP and that she be given an
opportunity to consult with someone called ‘David’, who, as stated earlier, was
opportunity to consult with someone called ‘David’, who, as stated earlier, was
her trade union representative, with regards to the content of the document
and later, following consultation, she continued in her refusal to sign the
5 Stellenbosch Farmers' Winery Group Ltd And Another v Martell et Cie and Others 2003 (1) SA 11
(SCA).
16
document. This point is corroborated by the minutes of the consultation
meeting of 10 November 2021, where it is recorded that ‘[Ms Mavusa] said
she consulted SACCAWU union official, David and advised her not to sign but
to take the agreement to him to read and refused to give her the document’.
[54] Further, it was the evidence of Ms Mdaka that, during the first consultation
meeting, she had requested to have ‘ someone’ who could sit with her during
the consultation; however , no explicit reference to a union representative or
legal representation is made in her request. While in the case of Ms Malatji,
she indicates in testimony that she had outright requested union assistance at
the first consultation meeting and was told that she was not allowed
assistance as the s189(3) notice and indeed the whole retrenchment process ,
was confidential. These exchanges do not appear in the minutes of the
consultation process.
[55] The probity of Ms Mdaka and Malatji’s evidence is questioned when
consideration is given to the letter from SACCAWU dated 2 February 2021. In
the letter, the union, writing to the appellant, listed the names of 37 of its
members within the workplace as an indication of their membership and to
bolster its claim for organisational rights. While Ms Mavuso’s name appears
on the list, both Ms Mdaka's and Malatji’s do not. On cross-examination, when
asked about their omission from this list, both employees indicated that they
had joined the union on 22 December 2020, Mdaka adding that she did not
know why her name had been left off the list, while Ms Malatji had indicated
that she had joined the union after the list of 37 members had been compiled
and sent to the union for inclusion in the letter of 2 February 2021. If I
understand her evidence correctly , it is that the letter of 2 February 2021
contained an outdated list of SACCAWU members. This, I do not accept.
[56] The respondent contends, and the court a quo agreed, that the appellant was
[56] The respondent contends, and the court a quo agreed, that the appellant was
aware of the individual employe es’ membership to SACCAWU; however, the
evidence does not support this finding, as, at the start of the consultations, no
explicit request or reference to union representation was made or sought by
the individual employees, at least with respect to Ms Mavuso and Mdaka.
Rather, they make vague references seeking assistance during the process
17
by ‘someone’ and only later does Ms Mavuso indicate her intention to discuss
the contents of the VSP with David from SACCAWU. Ms Malatji testified that
she had requested union assistance at the outset of the consultation process
and that this was refused, I fail to understand why, as a SACCAWU member,
she had not, like Ms Mavuso, independently contacted the union or sought its
advice on the process especially if her colleague was doing the same thing.
[57] Although it is accepted, on both parties’ evidence, that the late Mr Silaule had
previously dealt with Mr David Teffo of SACCAWU during Ms Mavuso’s earlier
CCMA proceedings, and that he had received the letter of 2 February 2021
requesting organisational rights for SACCAWU, it cannot reasonably be
expected of the appellant to have pieced together, from vague references,
earlier correspondence, and litigation more than 18 months prior, that all the
individual employees were SACCAWU members. This is particularly so where
no union enjoyed organisational rights within the workplace and where, at the
commencement of the consultation process, it was not apparent to the
appellant that the contemplated retrenchments were likely to affect members
of a trade union so as to trigger s189(1)(c).To my mind, it would be different if,
in the circumstances, a union were indeed active within the workplace, that
the employer was aware of this, and still chose not to consult with the union,
flagrantly bypassing the hierarchy imposed by the Act.
[58] Something is also to be said about SACCAWU’s inaction following its
discovery that its member, in the case of Ms Mavuso, had been issued a VSP
in a retrenchment process. In my view, s189 does not place the entire burden
of ensuring proper consultation on the employer alone. The duty to consult is
a shared one, and the Act contemplates a participatory process in which both
parties bear responsibility for ensuring that consultation occurs meaningfully
parties bear responsibility for ensuring that consultation occurs meaningfully
and with the appropriate representatives. If the union was aware, as the
evidence suggests, that its members were being consulted directly despite the
provisions of s 189(1)(c), nothing prevented it from approaching the appellant
to assert its right to be included. The fact that Mr Teffo knew of the
retrenchment process at the latest by 10 November 2021, prior to the issuing
of the termination letters, yet took no steps to intervene or engage the
18
appellant, is significant. The respondent’s position appears to suggest that the
appellant should have divined the union’s involvement with the individual
employees, at least with respect to Ms Mdaka and Malatji, and engaged it in
the consultation process without any initiative from the union itself. To my
mind, this is inconsistent with the mutual and cooperative consultation
framework envisioned by s189, and the union’s inaction in this regard cannot
be overlooked.
[59] What remains when all of the evidence is considered is that: in the case of Ms
Mavuso, not only had she (albeit belatedly) notified that appellant that she had
consulted with SACCAWU on her signature of the VSP and acted on this
advice by refusing to sign the document, the late Mr Silaule was aware that
she had previously been represented by the union during an unfair dismissal
dispute that occurred some 18 months earlier and that on this basis, it would
have become necessary for the appellant to engage the union with respect to
Mavuso as of 10 November 2021, especial ly as the consultation process had
not yet been concluded. The same, however, cannot be said with respect to
the remaining individual employees, particularly as there was no other
evidence, outside of bald statements, to corroborate their union membership.
This, coupled with SACCAWU’s awareness of its members undergoing a s189
process and its decision not to intervene can only lead to the inference that
Ms Mdaka and Malatji were not union members at the time of the s189
process and thus it cannot be said that the appellant flouted its responsibilities
in terms of s 189(1)(c) with respect to the two employees and on this basis I
am not satisfied that their dismissal as a whole was unfair.
Relief
[60] What remains then is the question of what relief Ms Mavuso is entitled to on a
finding that her dismissal, though substantively fair, was procedurally unfair for
lack of union consultation, bearing in mind that the relief can only be one of
lack of union consultation, bearing in mind that the relief can only be one of
compensation.
[61] In considering the nature and degree of the deviation from the procedural
requirement to consult with the union together with the conduct of the parties
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during the consultation process, it is relevant that Ms Mavuso had only raised
the issue of union involvement in November 2021, and that, at that point, the
parties were already more than a month into the consultation process where
all employees proposals had been received and considered and the appellant
was now awaiting feedback on the signature of the VSP. Adding to this and
detailed above, the U nion, at least by 10 November 2021, was aware of the
consultation process which impacted its member, Ms Mavuso, and chose not
to intervene despite being aware of its right to do so.
[62] It cannot be said that the appellant, in not involving the Union, had totally
failed to meaningfully consult with the employees, because as the evidence
demonstrates, Ms Mavuso clearly understood the process that was taking
place, had participated in it by giving her own proposals and receiving
feedback on same and had even gone on her own to seek union advice on
the signing of the VSP. In that case, it seems that the procedural deviation,
although relevant, was minor in light of the purpose of s189 still being served,
despite the procedural failing.
[63] Thus, taking into account that Ms Mavuso received her statutory severance
pay; that she raised the issue of union consultation only at the third
consultation meeting, that she failed to attend any further consultations
despite indicating an intention to do so; and further, that the union itself made
no attempt to approach the appellant to seek inclusion in the retrenchment
process, I consider an award of three months’ compensation to be just and
equitable in the circumstances.
[64] In the premises, the following order is made:
Order
1. The appeal is upheld, in part, with no order as to costs.
2. The order of the court a quo is set aside and substituted with an order
that:
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‘(1) the applicant’s application is granted in part, and the dismissal of
the individual affected employees is found to be substantively
and procedurally fair, save for the dismissal of Ms Nonhlanhla
Mavuso, whose dismissal is found only to be procedurally unfair.
(2) The appellant is to pay Ms Nonhlanhla Mavuso compensation in
an amount equivalent to 3 (three) months’ remuneration
calculated at her rate of remuneration at the date of dismissal.
(3) There is no order as to costs.’
_______________
WAGLAY AJA
Mahalelo ADJP et Djaje AJJA concur.
APPEARANCES:
FOR THE APPELLANT: V Mndebele
Instructed by Edward Nathan Sonnenbergs Inc
FOR THE RESPONDENT: A Roskam of Haffegee Roskam Savage Attorneys
Inc