THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN

Case no: C 317/2023
In the matter between:
OLUMIDE ADENIRAN Plaintiff
and
WEBHELP SA OUTSOURCING (PTY)
LTD
Defendant

Heard: 17-18 March and 24 April 2025
Summary (Dismissal – Operational requirements – Employee cannot
complain about selection decisions in respect of alternative employment they
were not willing to accept even if they were selected - procedurally and
substantively fair)


JUDGMENT

(1) Reportable: Yes
(2) Of interest to other Judges: Yes

19/01/2026
Signature Date

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LAGRANGE, J
Introduction
[1] The plaintiff, Mr O Adeniran (‘Adeniran’), claims his dismissal for operational
reasons by the defendant (‘Webhelp’) was substantively and procedurally unfair
and seeks reinstatement in a finance or management position commensurate
with his degree qualification, “with excellent pay”. He also claimed restoration of
all his benefits such as medical aid and funeral insurance cover.
[2] Originally, Adeniran had also claimed that he suffered depression and trauma
as a result of the retrenchment and delays in obtain ing his UIF and tax
certificates. Further, he claimed that he have been defamed when the company
informed him that the tax number he had provided to it could not be validated.
He also complained that perjury had been comm itted by the company because
in an affidavit deposed to by a company representative it had been claimed that
five individuals passed an English assessment, whereas in the course of
consultations emp loyees were advised that only one person had passed the
assessment. Arising from these claims he believed he was entitled to
compensation which he estimated amounted to R 10 million. However, none of
these claims were reflected in the pre-trial minute.
[3] At the beginning of the trial proceedings, th e omission of all other claims from
the pre-trial minute except the unfair retrenchment was clarified. Adeniran had
accepted in earlier proceedings in this matter, that he would have to pursue any
defamation claim in an ordinary civil court . Adeniran agreed that his claim was
confined to the substantive and procedural fairness of his retrenchment.
[4] By the time the matter was argue d, Adeniran had further reduced the scope of
his complaint relating to his retrenchment.
Brief summary of events and issues arising
[5] Mr. Adeniran began working at Webhelp in May 202 2 as a content moderator
on the ByteDance campaign, focusing on Nigerian -language content. The

on the ByteDance campaign, focusing on Nigerian -language content. The
company’s principal business is providing customer support services for several
international clients and 80% of its employees are engaged in providing these
services on behalf of its clients.

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[6] As a content moderator, Adeniran’s work was to monitor and moderat e content
with Nigerian language content loaded on TikTok, which ByteDance owned .
The work did not involve dealing with the users of the platform . By contras t,
customer service advisers dealt directly with a client’s customers and verbal
communication ability was required for the work.
[7] In September 2022, ByteDance informed Webhelp that it would discontinue the
Nigerian-language component of its campaign because of low content volumes
and the company’s inability to recruit the full team of 20 moderators , whic h
ByteDance required . At that point, only nine moderators and one quality
assurance employee were employed for the campaign. The service provided to
ByteDance ended on 29 November 2022. With the termination of that contract,
Webhelp no longer had a need for staff with Nigerian language skills in other
roles in the company.
[8] On 29 September 2022, Webhelp issued Section 189(3) notices to all affected
employees, i ncluding Mr. Adeniran. These notices invited employees to
consultations about possible retrenchment and alternatives. The initial letter
contained clerical errors, such as references to “Deliveroo” and incorrect dates,
which the company explained were template mistakes.
[9] The first consultation meeting took place on 3 October 2022 at Webhelp’s
Claremont office. Management explained the situation and the consultation
process. Employees were told that the ByteDance campaign had ended and
that the company would look for alternative positions such as re-deployment in
Webhelp’s other campaigns.
[10] During the second meeting on 5 October 2022, employees were asked to
suggest alternatives. Webhelp introduced the first option: a position on a small
General Electric (‘GE’) healthcare campaign, which required Nigerian language
skills. Employees were invited to volunteer for this role. Three persons did, and
Mr B Adeyoyenu (“Adeyoyenu”) was chosen by the client . He testified for the

Mr B Adeyoyenu (“Adeyoyenu”) was chosen by the client . He testified for the
company and explained that the job concerne d planning the installation and
servicing of MRI and CT scan equipment , which required him to deal with
clients. He testified that all the affected employees had to complete an English
assessment but agrees he did not see the results of that assessment eit her.

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Adeniran claimed there was no assessment required for this role. However,
Adeniran testified he had no interest in the position so did not apply for it.
Adeyoyenu said he and two others were interviewed for the GE role but only
he was successful and he started working on the GE contract during that
October.
[11] Further consultations were held on 10 and 12 October 2022 to discuss other
alternatives. Webhelp explained that moving into customer service roles would
require passing English proficiency and tec hnical assessments because these
jobs were very different from content moderation. Webhelp claimed that two
alternatives were offered to the affected employees: a Nigeri an language
advisor in one campaign (the GE contract) and ten positions for English
customer advisors in two other campaigns. Both alternatives require a
selection and qualifying process including written and oral language proficiency
tests.
[12] By mid -October, Mr. Adeniran and other affected employees, had completed
the English proficiency tes t. Apart from Adeniran and another employee, the
others also did SAGE specific assessments test. SAGE is a payroll system
which was described as “quite technical” by the HR manager, Mr R Slamdien
(‘Slamdien’). Adeniran later claimed that the English test results were never
shared and that some colleagues were allowed to re write tests while he and
another employee were not given that opportunity . The company denied this,
saying results were communicated and only one round of tests was done.

[13] Slamdien was no t aware of a second English assessment round but testified
that if Adeniran did not pass the English assessment, he would not have been
asked to do any further assessmen t for a SAGE position . Earlier in h is
testimony he had explained that the reason most c lients contracted with
Webhelp to provide such customer services was that the South African accent
was considered a relatively ‘neutral’ one. When the language used by the client

was considered a relatively ‘neutral’ one. When the language used by the client
was English, the company assisted the client in performing the assessment, but
the client generally wanted to make its own audibility and oral capability
assessments. In finding alternative positions for the employees facing

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retrenchment, the company would try and slot them into available positions
similar to the roles they occupie d before. Apart from the GE position, the other
positions available at the time were for customer service advisors, which had
different language requirements from the content moderator role the employees
on the ByteDance had fulfilled, which were less oral. As the affected employees
had been recruited to fill the capacity of content moderation, it was explained to
them that it was no t possible simply to redeploy them directly in a different
capacity and they would have to undergo English language assessment s and
meet any other specific skill requirements of the client.
[14] Adeniran was adamant they were not advised of the test results. Mr A Albert
(‘Albert’), another of the affected employees, testified for Adeniran. He agreed
no test results for the English pr oficiency test were provided and confirmed that
there was a further assessment for the SAGE campaign, to evaluate IT skills.
He a lso testified that he was aware that certain people had redone
assessments if they got a couple of points wrong. He was successful in being
offered a placement with Sage. He complained that the salary was “way below”,
what they were earning before , and that he eventually left after filling the
position for a short period only.
[15] On 12 October 2022, Webhelp confirmed the selection c riteria it was adopting.
The first stage was interviewing and assessing candidates for posts. Secondly,
if more than one candidate qualified for appointment, LIFO would be applied.
The affected employees did not dispute the use of these criteria. Adeniran
accepted the fairness of the selection criteria, but claims the y were not fairly
implemented. Although he did not claim that someone else should have been
selected in his place for retrenchment, he believed that other employees were
treated more favourably in the process. He identified five such persons, but did

treated more favourably in the process. He identified five such persons, but did
not plead why they were treated more favourably. However, Slam dien’s
testimony was that , if they had been favoured they would not have been
retrenched, and Adeniran did not allege any of them had o btained alternative
appointments in the company.
[16] It appears that assessments and interviews for the alternative positions took
place sometime around 17 October.

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[17] From 19 October 2022 onwards, consultations shifted to severance terms as it
became clear that redeployment options were limited. Employees asked for
better severance, and the company agreed to pay two weeks’ severance, even
to those with less than a year’s service.
[18] Additional meetings were held in late October and throughout November to
check for new opportunities. Webhelp offered a lower -paying customer service
role (about R7,000 per month), which Mr. Adeniran declined because it was too
far below his previous salary of R9,000.
[19] On 22 November, in response to a request from Ms S Swartbooi (‘Swartbooi’),
a lead senior people advisor, who worked with the HR department, to respond
to the proposed severance pay formula, Adeniran said he did not wish to
respond to that but proposed that the company place him in a department in
line with his B.Comm in Mana gement Marketing qualification, preferably in a
financial role. He also appealed to the company to continue paying his normal
salary to mitigate the depression he said he was suffering on account of the
retrenchment exercise. Swartbooi said Webhelp could n ot accede to the
proposals because there were no available positions in the line of work he
wanted, and there were no funds to con tinue paying him as the ByteDance
contract was ending.
[20] The final consultation took place on 29 November 2022. Webhelp confirme d
that no further alternatives were available and issued termination notices to the
remaining employees, including Adeniran.
[21] His employment formally ended on 30 November 2022. He received notice pay
and two weeks’ severance, calculated according to the agreed formula.
[22] In January 2023 , Mr. Adeniran requested his exit documents (UI19 and IRP5
forms). The company delayed providing these , and the Labour Court later
ordered Webhelp to issue the IRP5. According to Adeniran the delay in
providing his IRP5 meant h e was subjected to a tax penalty by SARS. He

providing his IRP5 meant h e was subjected to a tax penalty by SARS. He
believed Webhelp’s delay in resolving the matter was damaging to his
reputation, and this formed part of his defamation claim, which he had
erroneously referred to this court.

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[23] In January and February 2023, the c ompany gave Mr. Adeniran a chance to
retake the English proficiency test, even though he was no longer employed.
This did not lead to his re-employment.
Evaluation
[24] To some extent there is an overlap between the substantive and procedural
fairness questions which relate principally to the selection process.
Substantive fairness
[25] Adeniran pleaded that his retrenchment was neither substantively nor
procedurally fair. He did not accept there was a general need to retrench
arising from the termination of the ByteDance contract. He asserted that the
company still required Nigerian language skills , but did not identify where he
believed those were utilised. He believes his own selection for retrenchment
was a result of the consultation process being “rigged”. He did not say why
the company had sought to rig the process against him. However, this
appears to be something he infer red from the fact that he believes there were
other alternatives he could have been offered, and that the company did not
provide any evidence to substantiate the English language assessment
results, coupled with his claim that other staff were given an opportunity to
redo the test , but he and another staff member were not . The lack of
transparency in this regard made the selection process opaqu e. He also
suggested that the undue delay in furnishing him with his tax certificates, UIF
form and salary schedule was another fundamental flaw in the retrenchment
process.
[26] Webhelp argued that the termination of the ByteDance campaign eliminated the
need for Nigerian language content moderation and rendered the staff such as
Adeniran, who had been employed for that campaign , redundant. Procedurally,
there was ample scope in the eight consultation meetings for Adeniran to
engage with the process , during which he did not actively propose alternatives
until right at the end of process, nor did he personally request further

until right at the end of process, nor did he personally request further
information such as the English language assessment results. Selection criteria

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were accepted by the affected employees, including Adeniran. He declined to
apply for the alternative GE Healthcare role and rejected the Sage position s
due to the lower salary. The only proposal he put forward , very late in the
consultation process, was that he should be placed in a management role. This
was not feasible given his lack of managerial experience and absence of any
vacancies of that kind.
[27] As far as the assessment processes are concerned, Webhelp disputed that
there were any supplementary English language assessment conducted and
denied favouritism pl ayed any role in the selection process . In relation to the
Sage position s, a certain level of IT skills was required which he did not
possess.
[28] While it does not dispute the delay in providing documentation after Adeniran’s
dismissal, it denies this has any bearing on the fairness of his dismissal.
The need for retrenchment
[29] Although Adeniran disputed the need for retrenchment, under cross -
examination he did acknowledge that the termination of the ByteDance
campaign meant there was no work for the Nigerian language moderators and
that retrenchment had to be considered. However, he still believed that was not
sufficient to justify his own retrenchment because an alternative could be found.
[30] The company had offered the GE campaign position and the SAGE customer
service positions as alternatives, subject to meeting any specific skill
requirements for the post. The GE position was the only one requiring Nigerian
language skills. The SAGE positions required applicants to pass the English
language assessment and cer tain IT skill requirements. Despite his complaint
he was unfairly found to have failed the language assessment, he was not
interested in a SAGE position in any event.
[31] What Adeniran had his eye on was a managerial position preferably in a
financial capacity based on his business degree qualification. The evidence of

financial capacity based on his business degree qualification. The evidence of
Swartbooi was that no such position existed in the company at the time, and
Adeniran was unable to dispute that evidence.

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[32] Considering the evidence on alternative positions, I am persuaded that
Webhelp did at tempt to offer alternatives subject to a candidate meeting the
requirements of those placements, but Adeniran did not pursue either of the
available options . In respect of the language assessment requirement for the
Sage IT campaign, it is tr ue he would not have qualified for that placement
without it, but he made it clear in his evidence that the position did not interest
him anyway because of the salary reduction it would entail. There was no
evidentiary support for his contention that he co uld have been placed in a
managerial position, because none were available. His own belief that such a
position was available was nothing more than surmise on his part.
The selection process
[33] Adeniran has no complaint relating to the GE campaign position . H e agreed
under cross-examination that he did not “drop” his name for it, meaning he did
not apply for it. Similarly, he said the company just gave everyone the Sage test
even though nobody had “dropped” their name for it. He also testified that when
he and others were t old that the Sage salary was R 6,000 per month, he
declined the offer, which was a third less than what he was earning before ,
even though strictly speaking he did not qualify to accept an offer for a
placement on the Sage campaign because he did not satisfy the language
requirement.
[34] A major emphasis of Adeniran’s case was that the selection process was
opaque and that the company did not validate the outcome of the language
assessment tests . The company had failed to disclose accent neutralit y as a
criterion that would be considered and the results of the language assessments
were never disclosed. Further, Webhelp had shown favouritism in allowing two
other employees who had failed the language test to redo it, namely Yakub
Abdulaziz and Olayemi Olari. Slamdien testified he was unaware of any repeat

Abdulaziz and Olayemi Olari. Slamdien testified he was unaware of any repeat
language assessment being done and believed that, if those individuals had
written a supplementary test for Sage, it would most likely have been for the
technical requirements of the job, not the language assessment.

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[35] In Umicore Catalyst South Africa (Pty) Ltd v National Union of Metalworkers of
South Africa and Others 1 the Labour Appeal Court summarised the
jurisprudence on the requirements of fair selection criteria:
[17] Absent agreement to the contrary, the selection criteria for
operational requirements dismissals must be fair and objective. The
intrinsic value of ‘fair and objective’ criteria has been explained as follows:
‘The purpose of having, so far as possible, objective criteria, is to
ensure that redundancy is not used as a pretext for getting rid of
employees whom some managers wished to get rid of for other
reasons. Excepting cases where the criteria can be applied
automatically (eg last in, first out) in any selection for redundancy,
elements of personal judgment are bound to be required, thereby
involving the risk of judgment being clouded by personal animosity.
Unless some objective criteria are included, it is extremely difficult to
demonstrate that the choice was not determined by personal likes
and dislikes alone.’
[18] Put differently, an employer who does not use agreed selection
criteria to select the employees to be dismissed may not depart from ‘fair
and objective’ selection criteria. To do so would render the dismissals
substantively unfair.
[19] The onus is on the employer to prove that there was a fair reason to
dismiss the selected employees. This raises the issue of the basis for
selection. Selection criteria that are generally accepted to be fair include
length of service, skills and qualifications. While the use of LIFO generally
satisfies the test, there are instances where the LIFO principle, or other
criteria, require adaptation. The Code makes mention of ‘the retention of
employees based on criteria mentioned above which are fundamental to
the successful operation of the business’ as an example, adding that such
exceptions should be treated with caution.”
(emphasis added)

(emphasis added)

1 (2024) 45 ILJ 2545 (LAC)

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[36] In this instance, there was no disagreement on the way employees would be
selected for retre nchment, namel y candidates for available posts would be
interviewed and if more than one was suitable for a post then LIFO would be
applied. However, there was a dispute about whether the process was fairly
implemented. In essence , Adeniran argues that Web help demonstrated
partiality and did not demonstrate that the selection of candidates for available
vacancies was objectively fair. Since the selection of candidates for
appointment simultaneously entailed determining those who would be
retrenched, he maintains it did n ot demonstrate that the employees who were
not selected were, objectively speaking, not suitable for appointment in
available vacancies and consequently failed to prove they were fairly selected
for retrenchment. The issue of whether LIFO was applied properly as a tie -
breaking mechanism did not arise.
[37] Assuming in Adeniran’s favour that the selection of successful candidates for
the Sage positions was opaque and that the company failed to demonstrate
that the selection of any successful candid ate was object ively fair, does that
mean his retrenchment was unfair? It is true that he was precluded from
appointment in the Sage campaign because he was unsuccessful in the
language assessment, but even if that assessment had been subjective and
unfair, on his own evidence he still would not have accepted appointment in the
campaign because the salary was unacceptably low. In other words, even if he
had been successful in the language assessment it would not have resulted in
him being employed in the Sag e campaign, be cause he did not want such an
appointment. Thus his complaint is not that he was unfairly denied employment
in the Sage campaign because he was unfairly rated in the English
assessment, but simply that the employer had not conducted the asses sment
fairly.
[38] The fairness of Adeniran’s selection for retrenchment is a substantive question.

[38] The fairness of Adeniran’s selection for retrenchment is a substantive question.
In order to show that his selection was unfair, it is necessary for Adeniran to
show that his retrenchment was caused by the unfair application of the
assessment process . How ever, even if he had passed the language
assessment and any subsequent test for Sage he would not have accepted the
appointment anyway. Accordingly, the way in which selection criteria were

12

applied made no difference to whether he was retrenc hed or not. He would
have been retrenched in any event because he was unwilling to take up such
an appointment. The application of the criteria was not the factor which
prevented his employment in the Sage campaign. His complaint of being
unfairly retrench ed on account of the unfair application of selection criteria,
would only carry weight if he had been willing to take up the appointment, but
was prevented from doing so because of his poor language assessment rating.
He cannot establish a claim of substan tively unfair retrenchment on the
hypothetical premise that if he had wanted the job he would have been unfairly
excluded because of the unobjective language assessment. The allegedly
unfair assessment process must have been the cause of his selection for
retrenchment. Had Adeniran contended he should have been appointed on the
campaign and disputed the company’s failure to offer him a position on account
of its flawed assessment, that would be a different matter.
[39] In light of the above, I am satisfied that even if the employer has failed to
establish that the language assessment test was fairly and objectively applied,
any prejudicial consequence which might have flowed from that does not
require consideration because of his own decision not to make himself
available for the position. He removed himself from contention for any of the
available positions and in the absence of an y other alternative post he could
have been place in, whether managerial or otherwise, his retrenchment was not
unfair.
Procedural Fairness
[40] As mentioned there is a considerable degree of overlap between issues of
procedural and substantive fairness, particularly in relation to the selection
process. Adeniran had raised the following procedural issues.
40.1 Webhelp failed to disclose selection criteria;
40.2 assessment results, results were not provided preventing an opportunity
to meaningfully challenge the outcomes;

to meaningfully challenge the outcomes;
40.3 Webhelp did not follow its own two stage selection method, and
40.4 document errors indicated a lack of procedural integrity.

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[41] Adeniran’s complaint about selection criteria relates not to the broad criteria,
over which there was no dispute, but to the selection criteria applied by Sage in
particular. He claims that it was not disclosed that Sage was looking for
proficiency in English and oral communic ation and technical skills.
Management agreed that this was not spelled out in a written document, but
was mentioned during the consultations.
[42] In relation to the absence of assessment results, this has already been
discussed above. To the ext ent that it impacts on requirements of procedural
fairness, there was no evidence that Adeniran had raised this himself as an
issue during the consultations. Moreover, given that he had no intention of
applying for a Sage position because of the salary, th e absence of d isclosing
assessment outcomes held no adverse consequences for him. The situation
might have been otherwise if he had a serious interest in wanting one of the
Sage positions. The same consideration applies to his complaint that certain
employees were given another opportunity to redo the language assessment.
Adeniran’s argument that the company had not proved it had followed the two
stage selection process because it had not provided the assessment results
and therefore it could not demonstrat e the selectio n was properly done. Again
this is of little relevance to him, as it concerned alternative positions he was not
interested in.
[43] Adeniran made much of the fact that the original notice inviting affected
employees did not refer to the ByteDance contract but to a Deliveroo contract.
Samdien explained this was a typographical error referring to a previous
retrenchment exercise involving another client. It was clear from the contact
and the consultations that it was the Bytedance contract terminat ion which
triggered the retrenchment process, and the error caused Adeniran no material
prejudice.
Conclusion

prejudice.
Conclusion
[44] In light of the discussion above, I am satisfied that Adeniran’s retrenchment
was both substantively and procedurally fair. This is not the type o f matter in
which a cost award needs to be considered.

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Order
1. The Plaintiff’s retrenchment by the Defendant was substantively and
procedurally fair and the referral is dismissed.
2. No order is made as to costs.

__________________
R Lagrange, J
Judge of the Labour Court of South Africa
Appearances:

For the Applicant: --- In Person

For the Respondent: --- B Braun
Instructed by: --- Knowles Husain Lindsay Inc.