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[2026] ZALCCT 49
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Solidarity and Others v Tsebo Facilities Solutions (Pty) Ltd and Others (C472/23) [2026] ZALCCT 49 (23 March 2026)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case
No: C472/23
In
the matter between:
SOLIDARITY
First Applicant
DE VILLIERS,
B
Second Applicant
SAMUELS,
W
Third Applicant
THEUNISSEN,
E
Fourth Applicant
and
TSEBO
FACILITIES SOLUTIONS (PTY) LTD
First Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION (CCMA)
Second Respondent
COMMISSIONER
REZA SLAMANG
Third Respondent
Heard:
29 January 2026
This judgment was handed
down electronically by circulation to the parties’ legal
representatives by email, publication on
the Labour Court website and
release to SAFLII. The date and time for handing down judgment is
deemed to be 10h00 on 23 March 2026.
Summary:
Severance pay — Section 41(4) BCEA —
Forfeiture — Causation. Employees retrenched after loss of
contract secured
employment with incoming service provider (CBRE)
before the employer’s section 189 process and before conclusion
of an Alternative
Employment Agreement (AEA) — Commissioner
misconceived the section 41(4) inquiry by treating acceptance of
alternative employment
as dispositive and failing to determine
whether employment was obtained
as a result of
the employer’s
efforts. Findings inconsistent with evidence and with commissioner’s
own factual conclusions. Award
unreasonable and reviewable.
JUDGMENT
DE
KOCK, AJ
Introduction
[1]
This
matter comes before the Labour Court as a review application in terms
of section 145 of the Labour Relations Act
[1]
(“LRA”). The First Applicant, Solidarity, brings the
application as the representative trade union on behalf of the
Second, Third and Fourth Applicants, being De Villiers B, Samuels W
and Theunissen E respectively (collectively referred to as
“the
applicants”), former employees of the First Respondent, Tsebo
Facilities Solutions (Pty) Ltd (“Tsebo”).
The applicants
seek an order reviewing and setting aside the arbitration award
issued by the Third Respondent, Commissioner Reza
Slamang (“the
commissioner”), under case number WECT8983-20, dated 8 August
2023 (“the award”). In the
award, the commissioner found
that the applicants had forfeited their entitlement to severance pay
in terms of section 41(4) of
the Basic Conditions of Employment
Act
[2]
(“BCEA”) on
the basis that Tsebo had arranged their alternative employment with
Excellerate Facilities Management (Pty)
Ltd (“CBRE”). The
applicants contend that this finding is reviewable as a gross
irregularity within the meaning of
section 145(2)(a)(ii) of the LRA.
Background
[2]
Tsebo delivered a comprehensive service to
Sanlam. The service was delivered in terms of a Service Level
Agreement (“SLA”)
with a staff complement of about 125
employees and was in place for about 20 years. Sanlam, following a
tender process, appointed
CBRE with effect from 1 June 2020. On or
about 28 November 2019 Sanlam issued written notice of the
termination of the SLA with
Tsebo with the termination date effective
31 May 2020. The “go-live” date was static and was
communicated to all Tsebo’s
employees.
[3]
On or about 1 May 2020 Tsebo issued a
section 189(3) notice to all affected employees, including the
applicants. On or about 27
May 2020 Tsebo issued the affected
employees with a notice of termination of employment.
[4]
The termination notice issued to the
applicants referenced the section 189(3) notice and stated,
inter
alia
, “
As
you have found alternative employment you are not entitled to
severance pay in accordance with the Basic Conditions of Employment
Act 75 of 1997. Your employment with us will therefore terminate on
31 May 2020.”
[5]
Following the non-payment of severance pay
as per the notice of termination, the applicants referred a section
41 severance pay
dispute to the CCMA claiming that they obtained
alternative employment on their own accord and that they were
therefore entitled
to receive severance pay.
Arbitration Award
[6]
The commissioner, after surveying the
evidence and arguments by the parties, concluded that the applicants
are not entitled to severance
pay as envisaged by section 41(2) of
the BCEA as section 41(4) of the BCEA finds application.
[7]
The
commissioner, relying on
Irvin
& Johnson Ltd v CCMA
[3]
(
Irvin
& Johnson
)
,
notes
that the trite opinion of the LAC is that “
the
purpose of severance pay in our law is not necessarily to tide the
employee over while he is looking for another job. If that
was the
purpose, an employee who immediately walks into another and sometimes
even better paying job after his dismissal would
not be entitled to
severance pay because he would have no need for it”.
[8]
The
commissioner refers to the forfeiture clause in section 41(4) and
finds that the forfeiture clause will apply where the employer
offered the employee alternative employment with that employer or
with any other employer and the employee to whom alternative
employment has been offered unreasonably refuses to accept the offer.
The commissioner finds further that the LAC has held that
an employee
who accepts a retrenching employer’s offer of alternative
employment with another employer (an incoming service
provider) is
not entitled to severance pay. An employee is not entitled to
alternative employment as well as to the payment of
severance pay.
Relying on
Servest
Landscaping Turf Maintenance (Pty) Ltd v SA Commercial Catering &
Allied Workers Union & Others
[4]
,
the commissioner finds that the requirements of the forfeiture clause
are satisfied if retrenched employees are offered suitable
alternative employment with a new employer because of the efforts of
the retrenching employer. The commissioner, again relying
on
Irvin
& Johnson
,
finds that the LAC opined that the forfeiture clause rewards an
employer for offering or securing alternative employment for an
employee. Put differently, if an offer of alternative employment is
made to the employee, but the offer is not made by his employer
or
through the efforts of his employer, then they would be entitled to
severance pay, even if they turn it down. The commissioner
further
finds that, at a minimum, a retrenching employer must be able to
demonstrate that it played an instrumental role in securing
alternative employment for an employee, with another employer, if it
seeks to rely on section 41(4) of the BCEA.
[9]
The commissioner finds that it is common
cause that the employment of the applicants continued uninterrupted
with CBRE. The applicants’
version, however, being that they
secured alternative employment through their efforts without any
contribution and/or intercession
by Tsebo. Tsebo, on the other hand,
maintains that the forfeiture clause finds application because of its
involvement, influence
and engagement with CBRE which was intended to
secure the transfer and/or appointment by CBRE of the affected
employees. The commissioner
finds, considering the totality of the
evidence in the matter, he is of the view that in both scenarios, the
applicants would not
be entitled to the payment of severance pay.
[10]
The commissioner goes on to find that while
he is not inclined to agree that the applicants secured alternative
employment on their
own and through their efforts without any
intervention by Tsebo, he notes that if this were the case then upon
acceptance of the
offer of employment, they could not maintain that
they would continue with their employment with Tsebo. They were all
contractually
bound to commence employment under the rubric of CBRE
and through their testimony they confirmed that from 1 June 2020,
they would
be employed by CBRE.
[11]
The commissioner finds that the applicants
maintained that Tsebo had not communicated any intention to retrench
any of the staff
prior to 1 May 2020 and that, at the time of
accepting employment and (in some instances) a lucrative sign-on
bonus, it cannot
be said that Tsebo had contemplated retrenchment of
the applicants or any of its employees. The commissioner, however,
notes that
it was the applicants’ case that Tsebo had
communicated the termination of the SLA and from the outset persisted
with the
view that the prescribed section 197 process should apply.
[12]
The commissioner finds that, while the
applicants ought to have resigned, he is mindful that they did not.
The commissioner, however,
finds that their acceptance of the offer
of employment is an unequivocal statement of their intent, namely
that they intended to
no longer be employed by Tsebo but rather from
1 June 2020 their employment would be with CBRE. The commissioner
finds that the
probabilities favour a finding that the applicants
held back on formerly resigning so that they could benefit from any
severance
pay that they thought would be due and payable to them.
Their failure to resign was nothing more than a stratagem from which
they
should not profit. They would in the circumstances not be
entitled to severance pay.
[13]
The commissioner finds further that Tsebo
played an instrumental role in securing alternative employment for
the applicants and
indeed its other employees. Tsebo and CBRE were in
contact after the news broke that CBRE would be the new service
providers and
discussions immediately ensured. According to the
commissioner, it matters not that Tsebo was seeking to manage its
financial risk,
albeit Tsebo maintained that its approach was to save
jobs; the two are not mutually exclusive nor is it contra to public
policy.
[14]
The commissioner finds that it is
understandable that the discussions were not smooth sailing but that
the stop-start affair eventually
resulted in an Alternative
Employment Agreement (“AEA”). The AEA was not a one-sided
initiative and came about through
the efforts of Tsebo. To contend
that the efforts of Tsebo are too little too late is, in the
circumstances of the matter, manifestly
unreasonable.
[15]
The commissioner finds that the process
kicked off once an agreement had been reached. Tsebo immediately
served a section 189(3)
notice on all affected staff, joint
communication was issued, information sharing intensified and the
parties mobilised the affected
employees towards applying for a
vacancy and being interviewed. The filling of vacancies, offers made
and accepted, and the appointment
of staff by CBRE were tracked. It
cannot thus be said that Tsebo was an inactive spectator, to do so
would be devoid of the instrumental
role played by Tsebo.
[16]
The commissioner concludes that the
employees who secured an alternative job were not paid any severance
pay because, under the
provisions of section 41(4) of the BCEA, they
were not entitled thereto. Tsebo cannot be faulted for this. The
applicants are therefore
not entitled to severance pay as section
41(4) of the BCEA finds application.
Grounds of review
[17]
The applicants listed the following
summarised grounds of review in the founding affidavit:
17.1
The commissioner misconstrued the evidence in concluding that the
applicants were not entitled to severance
pay in terms of section 41
of the BCEA.
17.2
The commissioner clearly misconstrued the evidence before him and
came to an unreasonable outcome.
17.3
The commissioner made errors of law and an error of fact and
committed misconduct in that he ignored relevant
evidence, failed to
consider material issues and failed to apply his mind.
17.4
The commissioner did not reach a conclusion reached by a reasonable
decision maker. The outcome of the award
was not rationally and
properly connected to the material facts before him.
[18]
This Court will address each of these
grounds in the evaluation that follows.
Review Test
[19]
In
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
,
[5]
the Court held that “
the
reasonableness standard should now suffuse section 145 of the LRA”
,
and that the threshold test for the reasonableness of an award was:
“
...
Is the decision reached by the commissioner one that a reasonable
decision maker could not reach?...”
[6]
.
In
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
[7]
the Court applied this reasonableness consideration as follows:
“
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in s 145(2)(a) of the
LRA. For a defect in the conduct of the proceedings to amount
to a
gross irregularity as contemplated by s 145(2)(a)(ii), the arbitrator
must have misconceived the nature of the inquiry or
arrived at an
unreasonable result. A result will only be unreasonable if it is one
that a reasonable arbitrator could not reach
on all the material that
was before the arbitrator. Material errors of fact, as well as the
weight and relevance to be attached
to particular facts, are not in
and of themselves sufficient for an award to be set aside, but are
only of any consequence if their
effect is to render the outcome
unreasonable.”
[20]
This test has thus been applied as a
two-stage review enquiry. Firstly, the review applicant must
establish that there exists a
failure or error on the part of the
arbitrator. If this cannot be shown to exist, that is the end of the
matter. Secondly, if this
failure or error is shown to exist, the
review applicant must then further show that the outcome arrived at
by the arbitrator was
unreasonable. If the outcome arrived at is
nonetheless reasonable, despite the error or failure, that is equally
the end of the
review application. In short, in order for the review
to succeed, the error or failure must affect the reasonableness of
the outcome
to the extent of rendering it unreasonable.
[21]
Further,
the reasonableness consideration envisages a determination, based on
all the evidence and issues before the arbitrator,
as to whether the
outcome of the arbitrator arrived at can nonetheless be sustained as
a reasonable outcome, even if it may be
for different reasons or on
different grounds.
[8]
This
necessitates a consideration by the review court of the entire record
of the proceedings before the arbitrator, as well as
the issues
raised by the parties before the arbitrator, with the view to
establish whether this material can, or cannot, sustain
the outcome
arrived at by the arbitrator. In the end, it would only be if the
outcome arrived by the arbitrator cannot be sustained
on any grounds,
based on the material, and the irregularity, failure or error
concerned is the only basis to sustain the outcome
the arbitrator
arrived at, then the review application would succeed.
[9]
[22]
In
Goldfields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA &
Others
[10]
(Gold Fields)
the
Labour Appeal Court further explained the reasonableness test in the
following terms:
“
[15]
A process-related review suggests an extended standard of review, one
that admits the review of an award on the grounds of
a failure by the
arbitrator to take material facts into account, or by taking into
accounts facts that are irrelevant, and the
like. The emphasis here
is on process and not result. Proponents of this view argue that
where an arbitrator has committed a gross
irregularity in the conduct
of the arbitration as contemplated by s145(2), it remains open for
the award to be reviewed and set
aside irrespective of the fact that
the decision arrived at by the arbitrator survives the Sidumo test. I
disagree. What is required
is first to consider the gross
irregularity that the arbitrator is said to have committed and then
to apply the reasonableness
test established by Sidumo. The gross
irregularity is not a self-standing ground insulated from or standing
independent of the
Sidumo test. That being the case, it serves no
purpose for the reviewing court to consider and analyse every issue
raised at the
arbitration and regard failure by the arbitrator to
consider all or some of the issues albeit material as rendering the
award liable
to be set aside on the grounds of process-related
review.”
and
“
[20]
To do it differently or to evaluate every factor individually and
independently is to defeat the very requirement set out in
section
138 of the LRA which requires the arbitrator to deal with the
substantial merits of the dispute between the parties with
the
minimum of legal formalities and do so expeditiously and fairly. This
is also confirmed in the decision of CUSA v Tao Ying
Metal
Industries. Failing to consider a gross irregularity in the above
context would mean that an award is open to be set aside
where an
arbitrator (i) fails to mention a material fact in his award; or (ii)
fails to deal in his/her award in some way with
an issue which has
some material bearing on the issue in dispute; and/or (iii) commits
an error in respect of the evaluation or
considerations of facts
presented at the arbitration. The questions to ask are these: (i) In
terms of his or her duty to deal with
the matter with the minimum of
legal formalities, did the process that the arbitrator employed give
the parties a full opportunity
to have their say in respect of the
dispute? (ii) Did the arbitrator identify the dispute he was required
to arbitrate (this may
in certain cases only become clear after both
parties have led their evidence)? (iii) Did the arbitrator understand
the nature
of the dispute he or she was required to arbitrate? (iv)
Did he or she deal with the substantial merits of the dispute? and
(v)
Is the arbitrator’s decision one that another
decision-maker could reasonably have arrived at based on the
evidence?”
and
“
[21]
Where the arbitrator fails to have regard to the material facts it is
likely that he or she will fail to arrive at a reasonable
decision.
Where the arbitrator fails to follow proper process he or she may
produce an unreasonable outcome (see Minister of Health
and Another v
New Clicks South Africa (Pty) Ltd and Others
2006 (2) SA 311
(CC)).
But again, this is considered on the totality of the evidence not on
a fragmented, piecemeal analysis. As soon as it is
done in a
piecemeal fashion, the evaluation of the decision arrived at by the
arbitrator assumes the form of an appeal. A fragmented
analysis
rather than a broad based evaluation of the totality of the evidence
defeats review as a process. It follows that the
argument that the
failure to have regard to material facts may potentially result in a
wrong decision has no place in review applications.
Failure to have
regard to material facts must actually defeat the constitutional
imperative that the award must be rational and
reasonable - there is
no room for conjecture and guesswork”
[23]
The
Labour Appeal Court in
Head
of the Department of Education v Mofokeng and Others
[11]
(Mofokeng)
provided
the following exposition of the review test:
“
[33]
Irregularities or errors in relation to the facts or issues,
therefore, may or may not produce an unreasonable outcome or provide
a compelling indication that the
arbitrator
misconceived the inquiry. In the final analysis, it will depend on
the materiality of the error or irregularity and its
relation to the
result. Whether the irregularity or error is material must be
assessed and determined with reference to the distorting
effect it
may or may not have had upon the arbitrator’s conception of the
inquiry, the delimitation of the issues to be determined
and the
ultimate outcome. If but for an error or irregularity a different
outcome would have resulted, it will ex hypothesi be
material to the
determination of the dispute. A material error of this order would
point to at least a prima facie unreasonable
result. The reviewing
judge must then have regard to the general nature of the decision in
issue; the range of relevant factors
informing the decision; the
nature of the competing interests impacted upon by the decision; and
then ask whether a reasonable
equilibrium has been struck in
accordance with the objects of the LRA. Provided the right question
was asked and answered by the
arbitrator, a wrong answer will not
necessarily be unreasonable. By the same token, an irregularity or
error material to the determination
of the dispute may constitute a
misconception of the nature of the enquiry so as to lead to no fair
trial of the issues, with the
result that the award may be set aside
on that ground alone. The arbitrator, however, must be shown to have
diverted from the correct
path in the conduct of the arbitration and
as a result failed to address the question raised for determination.”
[24]
The court will now proceed to consider the
review application against the above principles and the test
applicable to review applications.
Evaluation of grounds
of review
[25]
This
case turns on a single question of causation: whether the applicants
obtained employment with CBRE because of Tsebo’s
efforts, or
whether that employment came about independently of anything Tsebo
did. The decisive question under section 41(4) of
the BCEA is whether
the employer has arranged alternative employment for the employee.
The Labour Appeal Court in
Irvin
& Johnson
held that the forfeiture clause is not triggered by the mere fact
that an employee obtains or accepts alternative employment. The
employer must have taken purposive steps to cause that employment to
come about. It must have initiated and driven the process
of securing
employment for the employee with the incoming employer, such that the
employment was obtained as a result of the employer’s
efforts.
In
Vergenoeg
vir Seniors v Stone and Others
[12]
the Labour Appeal Court confirmed this causation standard and held
that it is sufficient if the retrenching employer negotiated
with the
new employer and, as a result of the employer’s efforts, the
individual employees were employed. The underlying
purpose of section
41(2) is to compensate an employee for the extinguishing of accrued
service, a statutory entitlement earned
through years of continuous
employment with that employer and that loss is suffered by the
individual applicants irrespective of
the fact that their employment
continued uninterrupted with CBRE. The seamless transition does not
undo the severing of the employment
relationship with Tsebo or the
extinguishing of the service that section 41(2) compensates. The
decisive question is therefore
whether the applicants obtained CBRE
employment because of Tsebo’s efforts, or whether they would
have obtained that employment
regardless of anything Tsebo did.
[26]
The commissioner erred, as a threshold
matter, in the identification of the question he was required to
answer. Having correctly
found that a retrenching employer must
demonstrate that it played an instrumental role in securing
alternative employment, the
commissioner proceeded to treat the
dispositive question as whether the applicants accepted employment
with CBRE, which was common
cause, rather than whether Tsebo’s
efforts caused that employment to come about. This is a misconception
of the nature of
the inquiry under section 41(4). An employee who
obtains alternative employment through his or her own efforts does
not forfeit
severance pay merely because the retrenching employer
initially also engaged with the incoming service provider to secure a
section
197 agreement. Tsebo’s attempts over months do not
assist them to show that the applicants obtained employment through
Tsebo’s
active engagement with CBRE. The section 197
discussions had no impact on the purpose of section 41 and more
specifically section
41(4) of the BCEA.
[27]
The commissioner’s own findings of
fact defeat the causation requirement. The commissioner records in
his award that the discussions
between Tsebo and CBRE were not smooth
sailing and that the stop-start affair eventually resulted in an AEA.
Significantly, Tsebo’s
own answering affidavit concedes at
paragraph 11 that the AEA was concluded through its efforts before
the retrenchment process
commenced. The section 189(3) notice was
only issued on 1 May 2020 and received by employees on 6 May 2020.
Both events therefore
occurred after the facts that are critical to
the individual applicants’ CBRE appointments. The AEA itself
was reached in
principle on 29 April 2020 and formally signed on 3
May 2020. It is common cause that De Villiers and Samuels received
formal CBRE
employment offers as early as 28 February 2020, more than
two months before the AEA was signed and well before any retrenchment
process had been initiated. On the commissioner’s own findings,
CBRE was recruiting those individuals independently from
December
2019, without Tsebo’s knowledge. In respect of Theunissen, the
commissioner records at paragraph 21 of the award
that in March 2020
CBRE published a Notice of Hiring People with a closing date of 24
April 2020, and that Tsebo ostensibly did
not know about the
recruitment drive. It was this independent recruitment drive, of
whose existence Tsebo was ignorant, to which
Theunissen responded. He
applied on 22 April 2020 and was interviewed on 29 April 2020 before
the in-principle agreement on the
AEA was reached on that same day
and before Tsebo’s Human Resources Manager had received CBRE’s
organisational structures
that evening. Tsebo cannot have arranged an
appointment arising from a recruitment process of whose existence it
was unaware. An
employer who does not know a recruitment process
exists cannot be the cause of an appointment made through it. This is
the paradigm
case of the
Irvin &
Johnson ‘
fourth scenario”
in which independently-sourced employment cannot trigger forfeiture.
This conclusion is confirmed by evidence
from CBRE itself. CBRE
confirmed in writing that the applicants were appointed independently
and without involvement of Tsebo,
and that the appointments were
based on merit. The commissioner records at paragraph 57 that the
process kicked off once an agreement
had been reached. That agreement
was reached at the earliest on 29 April 2020, the same day as
Theunissen’s interview, and
more than two months after the
offers to De Villiers and Samuels. Whatever the process that kicked
off after the AEA cannot, as
a matter of temporal logic, have caused
appointments that preceded or were contemporaneous with it.
[28]
There is a further and independently
dispositive finding. It is common cause that 27 Tsebo employees
deployed on the Sanlam SLA
were retrenched notwithstanding their
coverage by the same AEA framework. The commissioner engages with
this fact at paragraph
58 of the award, recording that although some
of the affected employees did not secure alternative and ongoing
employment with
CBRE and/or Tsebo, the overwhelming majority did. He
does not, however, engage with its causation implications. He
characterises
the 27 retrenchments as a minority exception and moves
on without analysis. The significance of the 27 retrenchments is
fatal to
the causation case and equally fatal to Tsebo’s
characterisation of the AEA as constituting an undertaking by CBRE
that the
applicants will be appointed (answering affidavit, paragraph
22.2). If the AEA constituted an undertaking to appoint the named
employees, it was an undertaking that failed for 27 of them. The
AEA’s own terms explain why. Clause 4.10 expressly provided
that the placement provisions did not constitute a stipulation for
the benefit of employees and that employees could not accept
or
enforce any obligations arising from those provisions. An arrangement
that by its own express terms creates no rights for and
confers no
enforceable obligations towards the affected employees cannot
simultaneously constitute the arrangement of those employees’
alternative employment for purposes of section 41(4). CBRE retained
full discretion to assess each candidate’s cultural
compatibility, and it exercised that discretion adversely in 27
cases. The outcome remained CBRE’s decision, not Tsebo’s.
An employer who submits names to a competitive and discretionary
process that it does not control has not arranged employment for
anyone who emerges from it. The commissioner’s failure to
engage meaningfully with the causation implications of the 27
retrenchments, and his uncritical acceptance of the undertaking
characterisation without testing it against the AEA’s express
terms, constitutes a failure to apply his mind to material evidence
before him.
[29]
The commissioner’s conclusion that
Tsebo played an instrumental role in securing the applicants’
CBRE employment is
not rationally connected to his own preceding
findings. He records that discussions commenced after the news broke
that CBRE would
be the incoming service provider, and that those
discussions were a stop-start affair. He records that the process
kicked off once
an agreement had been reached. If the process only
kicked off after the AEA was formally signed on 3 May 2020, no
conduct of Tsebo
prior to that date could constitute the instrumental
role the commissioner attributes to it. Yet the individual
applicants’
applications and interviews all pre-dated the AEA.
This conclusion is irreconcilable with the factual narrative in this
case. Applying
the standard in
Gold
Fields
and
Mofokeng
,
this constitutes a failure to apply the mind to material facts such
that the outcome is unreasonable.
[30]
Two further arguments advanced in the
answering affidavit require brief attention. The first is the
contention that it was not a
foregone conclusion that the applicants
would have been retrenched if the AEA had not been concluded
(answering affidavit, paragraph
14). This argument does not assist
the causation inquiry. Section 41(4) does not ask whether the
applicants would certainly have
been retrenched. It asks whether the
employer arranged the alternative employment. The forfeiture operates
where the employer caused
the employment outcome. The contingency of
the retrenchment is irrelevant to that inquiry. The second is the
contention that by
concluding employment contracts with CBRE before
the retrenchment process commenced, the applicants were contractually
obligated
to join CBRE on 1 June 2020, making the termination of
their Tsebo employment one that occurred at their own instance rather
than
at the instance of Tsebo (answering affidavit, paragraph 21.5 to
21.6). This argument is legally unsound. It is common cause that
Tsebo issued notices of termination on 27 May 2020. The applicants
were retrenched by Tsebo in terms of those notices. The fact
that
they had separately accepted CBRE offers does not convert Tsebo’s
retrenchment into a termination at the instance of
the employees.
Section 41(2) was triggered by the retrenchment. The forfeiture under
section 41(4) then required Tsebo to have
arranged the alternative
employment. It did not. As to the commissioner’s own secondary
route that the individual applicants
held back from formally
resigning in order to profit from severance pay and that their
failure to resign was nothing more than
a stratagem, this reasoning
is not merely unsound on the facts; it is unsound in law. Section
41(4) contains no motive-based exception
to the entitlement to
severance pay. The provision operates on a single criterion: whether
the employer arranged the alternative
employment. An employee’s
reason for not resigning, and any inference drawn therefrom, find no
place in that inquiry. The
commissioner’s secondary route
accordingly imposes a forfeiture on a basis that finds no warrant in
the BCEA and introduces
into section 41(4) a requirement that the
legislature did not enact. To the extent the commissioner’s
secondary reasoning
purports to stand independently of the causation
analysis, it cannot do so. It is
ultra
vires
the provision on which it
purports to rely.
[31]
Having regard to the totality of the
evidence, i.e., the pre-AEA chronology, the 27 retrenchments, the
absence of evidence that
Tsebo arranged any interview or offer for
the individual applicants, and the commissioner’s own finding
that discussions
were a stop-start affair that only kicked off after
the AEA was concluded, the conclusion that Tsebo played an
instrumental role
in securing the individual applicants’ CBRE
employment is not one that a reasonable decision-maker could have
reached. The
award stands to be reviewed and set aside. Substitution
is appropriate: the record is complete, the material facts are common
cause,
and only one outcome is possible on the evidence. Remittal
would serve no purpose.
Conclusion
[32]
For the reasons set out above, the award is
reviewed and set aside, and an order
is
made as set out below.
Costs
[33]
This Court considered the provisions of
section 162 of the LRA and finds that it will not be in the interests
of law and fairness
to make any order as to costs. Tsebo, who
obtained a favourable award, was required to oppose the review
application brought on
behalf of the applicants. There is no reason
why it should be ordered to pay the costs of the application under
those circumstances.
[34]
In the premises, the following order is
made:
Order
1.
The arbitration award issued by the Third
Respondent under case number WECT 8983-20, dated 8 August 2023, is
reviewed and set aside.
2.
The following is substituted as the finding
of this Court:
2.1
The Second Applicant (De Villiers B) is entitled to severance pay in
the amount of R274,521.93.
2.2
The Third Applicant (Samuels W) is entitled to severance pay in the
amount of R81,235.82.
2.3
The Fourth Applicant (Theunissen E) is entitled to severance pay in
the amount of R21,312.18.
3.
The amounts referred to in 2.1 to 2.3 above
attract interest at the relevant, prescribed legal rate of interests
as from the date
that severance pay became due and payable, i.e., as
from 1 June 2020.
4.
No order is made as to costs.
C.
de Kock
Acting
Judge of the Labour Court of South Africa
Appearances:
For the
Applicant:
I Stockenström (Solidarity)
For the First
Respondent:
T du Preez
Instructed
by:
Van der Spuy & Partners
[1]
Act 66 of 1995, as amended.
[2]
Act 75 of 1997.
[3]
(2006) 27 ILJ 935 (LAC).
[4]
(2023) 44 ILJ 380 (LC).
[5]
(2007) 28 ILJ 2405 (CC); 2008 (2) SA 24 (CC).
[6]
Id at para 110.
[7]
(2013) 34 ILJ 2795 (SCA);
[2013] 11 BLLR 1074
(SCA) at para 25.
[8]
Fidelity
Cash Management Service v Commission for Conciliation Mediation and
Arbitration & Others
[2007]
ZALAC 12
;
[2008] 3 BLLR 197
(LAC);
(2008)
29 ILJ 964 (LAC)
at para 102.
[9]
See
Campbell
Scientific Africa (Pty) Ltd v Simmers & others
(2016) 37 ILJ 116 (LAC);
[2016] 1 BLLR 1
(LAC) at para 32;
Anglo
Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer & others
(2015) 36 ILJ 1453 (LAC);
[2015] 4 BLLR 394
(LAC) at para 12.
[10]
(JA 2/2012)
[2013] ZALAC 28
;
[2014] 1 BLLR 20
(LAC); (2014) 35 ILJ
943 (LAC) (4 November 2013).
[11]
[2014] ZALAC 50
;
[2015] 1 BLLR 50
(LAC); (2015) 36 ILJ 2802 (LAC).
[12]
JA45/08
[2010] ZALAC 35.