THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JS151/23
In the matter between:
SOLIDARITY obo LE ROUX, R Applicant
and
VANALLS PLANTHIRE (PTY) LTD Respondent
Heard: 14 May 2025
Delivered: 20 April 2026
(This judgment was handed down electronically by emailing a copy to the
parties. The 20th April 2026 is deemed to be the date of delivery of this
judgment).
Summary:
JUDGMENT
NHLAPO, AJ
Introduction
[1] The applicant is Mr Rian Le Roux (Le Roux), represented by Solidarity,
who was employed as Chief Executive Officer (CEO) of Vanalls Plant
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
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Hire (Pty) Ltd with effect from 1 February 2022 at a monthly remuneration
of R110,000.
[2] The respondent is Vanalls Plant Hire (Pty) Ltd, a plant rental company
operating two divisions: a short -term plant hire division and a fixed- term
contract division.
[3] It is common cause that Le Roux was dismissed by way of retrenchment
on 13 December 2022 and that this dismissal falls within the purview of
section 189 of the Labour Relations Act
1 (LRA), which requires an
employer to prove both a fair reason based on operational requirements
and a fair procedure.
[4] The issue for determination is thus the substantive and procedural
fairness of Le Roux’s dismissal based on operational requirements.
[5] In the event that I find in favour of Le Roux , the remedy sought is
financial compensation of twelve months.
Material facts
[6] From approximately the second half of 2022, the plant hire division
experienced significant financial difficulties attributable to non- payment
by clients, erratic cash flow, and high equipment maintenance costs. By
the end of the third quarter, the directors were considering closure.
[7] On 6 December 2022, Le Roux was informed for the first time at an
EXCO meeting that the directors had decided to close the plant hire
division. On the same day, Le Roux sent the directors an email advising
that the retrenchment process had to follow the legally prescribed
timeline and that, given the desired deadline of end of January 2023,
notices needed to be issued immediately.
[8] A follow-up EXCO meeting was held on 7 December 2022. The s ection
189(3) notice of contemplated retrenchment was issued on 7 December
1 Act 66 of 1995, as amended.
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2022 and the consultation meeting was scheduled for the very next day
— 8 December 2022.
[9] The s ection 189(3) notice was addressed to employees, plant hire
division. It contemplated the retrenchment of five employees in total and
stated that the mechanical and management departments will be affected
independently and that the financial and procurement management
departments will not be affected.
[10] The notice did not identify Le Roux’s position as CEO as being one of the
positions under consideration for redundancy. The pre- trial minute at
paragraph 3.9 recorded the agreed fact that only the plant hire division
and its employees would be affected — Le Roux was CEO of the whole
company, not an employee of the plant hire division.
[11] The group consultation meeting was held on 8 December 2022, chaired
via Zoom by Mr Quintin Liebenberg (“Mr Liebenberg”) of the Labour Law
Association of South Africa. Le Roux attended in his capacity as CEO. At
the commencement of the meeting, three individuals — Ms Jenny Van
Zyl (procurement), Ms Sheila Du Toit (financial manager), and Ms Ester
Muller (HR/payroll) — were identified as not being affected parties. Le
Roux was not excluded.
[12] However, Le Roux testified that he understood his attendance to be in his
capacity as CEO of the company and not as an employee affected by the
retrenchment. He was never specifically told during that meeting that his
position as CEO was redundant, that he was an affected party, or that
the application of LIFO would make him the first to be retrenched within
the management pool.
[13] The consultation meeting on 8 December was largely a reading of the
notice by Mr Liebenberg, with limited elaboration from the directors. The
only question raised was by Mr Raymond Welding regarding the
severance package. Le Roux asked no questions and made no
submissions — because, as he credibly testified, he did not know his
position was at risk.
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[14] On 9 December 2022, Le Roux submitted a detailed written letter to the
shareholders in his capacity as CEO, setting out his views on the
retrenchment process, proposals regarding the affected plant hire
employees, and suggestions regarding alternatives such as transferring
mechanics to Trans Alloys. This letter did not address his own position
because he had no reason to believe it was under threat.
[15] The respondent never responded to this letter in writing, as required by
section 189(6)(b) of the LRA. Brian Marshall (“Brian”) confirmed this in
cross-examination: “Not in writing.”
[16] The respondent also never furnished Le Roux with the forward
management structure he had specifically requested on 6 December
2022. Brian conceded: “We never responded… we did not know what the
structure was going to look like.”
[17] On 12 December 2022, the directors held individual meetings with all
managers. On the evening of 12 December, Brian admitted: “We made
up our minds basically on the night of Monday the 12th of how we need
to be going forward. ” The decision to retrench Le Roux was therefore
made before any individual consultation specifically directed at him
regarding his own potential retrenchment.
[18] On the morning of 13 December 2022, Le Roux had what he described
as a general business meeting with the directors — covering the Trans
Alloys situation, disciplinary matters, equipment, and the question of
share acquisition. He was not told in this meeting that he would be
retrenched.
[19] Later, on 13 December 2022, Le Roux was summoned to the boardroom,
where he was presented with his retrenchment letter and told to vacate
the premises immediately. He expressed shock. No meaningful
discussion took place. John Marshall (“John”) confirmed: “Correct. As a
person, as a position yes. [This was the first time we told him he was
being retrenched].”
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[20] Le Roux referred the dispute to the Commission for Conciliation,
Mediation and Arbitration on 13 January 2023, while still within his notice
period, which ran to 31 January 2023. He remained unemployed for
approximately one year before securing new employment.
Legal framework
[21] Section 188(1) of the LRA provides that a dismissal is unfair if the
employer fails to prove that it was affected in accordance with a fair
procedure and that the reason for the dismissal was a fair reason.
[22] Section 189(1) of the LRA imposes a duty on the employer contemplating
dismissal for operational requirements to consult with the affected
employees or their representatives.
[23] Section 189(2) requires that the consultation constitute a meaningful joint
consensus-seeking process in which the parties attempt to reach
agreement on measures to avoid dismissals, minimise their number,
change their timing, mitigate their adverse effects, the method of
selection, and severance pay.
[24] The purpose of consultation is to ensure that the ultimate decision on
retrenchment is properly and genuinely justifiable by operational
requirements or, put another way, by commercial or business rational.
2
[25] In SACCAWU and Others v Woolworths (Pty) Ltd 3 the Constitutional
Court had the following to say:
“Section 189(2) of the LRA requires the employer and other consulting
parties (the trade union and its members) to engage in a meaningful joint
consensus seeking process and attempt to reach consensus on the
topics specified in section 189(2)(a) to (c). These topics include
appropriate measures to avoid dismissals, to change the timing of
dismissals and to mitigate the adverse effects of the dismissals. The
employer is also required to disclose relevant information and provide
2 See: SACTWU v Discreto (a division of Trump and Springbok Holdings) [1998] 12 BLLR 228
(LAC) at para 8
3 (2019) 40 ILJ 87 (CC) at para 39.
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meaningful reasons for rejecting SACCAWU’s representations or
proposals.”
[26] Section 189(5) requires the employer to allow the other consulting party
an opportunity during consultation to make the representations about any
matter on which they are consulting. Section 189(6) obliges the employer
to consider and respond to the representations made by the other
consulting party and, if the employer does not agree with them, the
employer must state the reasons for disagreeing. Section 189(7) makes
provision for what happens at the end of the process of consultation.
Where attempts at finding measures that would avoid the dismissal of
employees have failed, the end of the consultation process is the
selection of the employees to be dismissed and then, finally, the
dismissal.
[27] Further to the above, the issue of whether a dismissal for operational
requirements is substantively fair is decided by way of answering what is
called a general question and a specific question. This particular principle
was articulated in Chemical Workers Industrial Union and others v Latex
Surgical Products
4, where the Labour Appeal Court (LAC) held as follows
in that regard:
“[55] Whether or not there was a fair reason for the dismissal of the
individual appellants relates to a general question and a specific
question. The general question is whether or not there was a fair
reason for the dismissal of any employees. The specific one is
whether there was a fair reason for the dismissal of the specific
employees who were dismissed, which in this case, happened to
be the individual appellants. The question of a fair reason to
dismiss the specific employees who were dismissed goes to the
question of the basis upon which they were selected for dismissal
whereas the other question related to whether or not there was a
reason to dismiss any employees in the first place.”
4 (2006) 27 ILJ 292 (LAC) at para 55.
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[28] In essence the general question relates to whether there was any
commercial or business rational for the retrenchments. In SACTWU v
Discreto (A division of Trump and Springbok Holdings) 5 the LAC had the
following to say regarding the general question:
“[8] Every person has the constitutional right to fair labour practices
(section 27(1) of the interim Constitution; section 23(1) of the
final Constitution). As far as retrenchment is concerned, fairness
to the employer is expressed by the recognition of the
employer’s ultimate competence to make a final decision on
whether to retrench or not (cf the Atlantis Diesel case at 1252H
(ILJ); 28I (SA)). For the employee fairness is found in the
requirement of consultation prior to a final decision on
retrenchment. This requirement is essentially a formal or
procedural one, but, as is the case in most requirements of this
nature, it has a substantive purpose. That purpose is to ensure
that the ultimate decision on retrenchment is properly and
genuinely justifiable by operational requirements or, put another
way, by a commercial or business rationale. The function of a
court in scrutinising the consultation process is not to second -
guess the commercial or business efficacy of the employer’s
ultimate decision (an issue on which it is, generally, not qualified
to pronounce upon), but to pass judgment on whether the
ultimate decision arrived at was genuine and not merely a sham
(the kind of issue which courts are called upon to do in different
settings, every day). The manner in which the court adjudges the
latter issue is to enquire whether the legal requirements for a
proper consultation process has been followed and, if so,
whether the ultimate decision arrived at by the employer is
operationally and commercially justifiable on rational grounds,
having regard to what emerged from the consultation process. It
is important to note that when determining the rationality of the
is important to note that when determining the rationality of the
employer’s ultimate decision on retrenchment, it is not the court’s
function to decide whether it was the best decision under the
circumstances, but only whether it was a rational commercial or
5 [1998] 12 BLLR 228 (LAC) at para 8.
8
operational decision, properly taking into account what emerged
during the consultation process.
[29] So the important question in the determination of the general question is
whether there was a rational commercial or operational decision, properly
taking into account what emerged during the consultation process.
Analysis
[30] This compressed timeline was incompatible with the requirement for a
meaningful joint consensus -seeking process under section 189(2).
Affected employees received the notice on 7 December 2022, attended
the consultation on 8 December 2022, and were required to submit
proposals by 17h00 on 9 December 2022 — a window of less than two
full working days to consider their positions, seek advice, and prepare
submissions. The 10th and 11th were weekend days. The retrenchment
letters followed on 13 December 2022.
[31] A central procedural defect is the respondent’s failure at any point prior to
the delivery of the retrenchment letter to specifically inform Le Roux that
his position as CEO was at risk. The s ection 189(3) notice was directed
to “employees, plant hire division.” Le Roux was not an employee of the
plant hire division — he was the CEO of the whole company. The pre-
trial minutes (paragraph 3.9) formally recorded the agreed fact that only
the plant hire division / short term rental contract and its employees
would be affected.
[32] The notice identified that the “management and mechanical departments”
of plant hire were at risk. It did not identify the CEO position as
redundant. Le Roux cannot reasonably be expected to have understood
that the apex position of the entire company fell within the “management
department” of a division two levels below him in the organisational
structure.
[33] John confirmed under oath that on 8 December 2022, the company still
did not know which positions would be affected or how many employees
would be retrenched. He stated: “We first had a meeting with all
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managers to see where we could move people across. And which
departments we… only after that did we actually consider
[retrenchments].”
[34] Critically, this means that at the time of the s ection 189 group
consultation on 8 December, the respondent itself had not determined
that the CEO position was redundant. It was procedurally unconscionable
in these circumstances to have expected Le Roux to make
representations about his own potential retrenchment at that meeting.
[35] The consultation on 8 December 2022 comprised largely a reading of the
notice by Mr Liebenberg. While Mr Liebenberg explained each heading
and invited the directors to elaborate, this process was not the
meaningful engagement envisaged by s ection 189(2). No specific
discussion of LIFO’s application to Le Roux’s position was had. No
specific alternatives to his retrenchment were canvassed. The meeting
lasted approximately one hour.
[36] The requirement for a meaningful joint consensus -seeking process is not
fulfilled by the mechanical reading of a notice. The employer must
approach the process with an open mind and must genuinely engage
with representations made by affected employees. In this case, the
employer had not even identified Le Roux as a target for retrenchment at
the time of the group consultation — making meaningful engagement
regarding his position structurally impossible.
[37] The most decisive procedural failing is that the decision to retrench Le
Roux was made on the night of 12 December 2022 — before any
individual consultation specifically directed at Le Roux as an affected
employee took place. Brian admitted this.
[38] Furthermore, t he “consultation” on the morning of 13 December 2022
was a general business meeting, not a consultation on Le Roux’s
retrenchment. John confirmed it was also only in the second meeting of
13 December 2022 — when the retrenchment letter was handed to Le
Roux — that he was “for the first time” told he was being retrenched.
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[39] It is further a fact that the CEO position was expanded to include Trans
Alloys management because the minimum salary expectations of Le
Roux could not justify a person only employed to grow the short term
rental contracts division. Brian further admitted under cross -examination
that when Le Roux was appointed, the respondent did not tell him [he
was only] for plant hire and agreed he was appointed CEO “of both”
divisions.
[40] It is noted that the pool of employees against whom LIFO was applied
remains somewhat opaque. The notice referred to the “management
departments” of plant hire. The Trans Alloys management (including the
site manager and workshop manager of that division) was excluded from
the pool, which is a matter that was not adequately disclosed or
explained during the consultation process.
[41] The most significant substantive concern — beyond procedural form — is
the failure to meaningfully explore alternatives to Le Roux’s
retrenchment. Brian Marshall conceded that salary reduction and
reduced working hours were options that “ would have been fair to
consider” but were never in fact considered.
[42] Le Roux testified that had he known his position was at risk, he would
have proposed a salary reduction as his primary alternative to
retrenchment. This was never put to him. The failure to explore
alternatives undermines the credibility of retrenchment as a last resort.
[43] I therefore find that there was a fair reason, generally, to retrench
employees in the plant hire division. However, there was no fair reason to
dismiss Le Roux who was the CEO of the entire company, and not just
the plant division.
Remedy
[44] Le Roux has stated clearly that he does not seek reinstatement. He
seeks financial compensation only. This brings the matter within s ection
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193(2)(a) of the LRA, which provides that reinstatement need not be
ordered where the employee does not wish to be reinstated.
Compensation under s ection 193(1)(c) is therefore the appropriate
remedy.
[45] Section 194 (1) provides that compensation must be just and equitable in
all the circumstances and shall not exceed 12 months’ remuneration at
the rate applicable on the date of dismissal.
[46] In determining the just and equitable quantum, the following factors are
relevant:
46.1 Severity and multiplicity of procedural defects: The procedural
failures in this case were neither isolated nor technical. They were
multiple, fundamental, and cumulative — encompassing failure to
identify Le Roux as an affected party, failure to consult with an
open mind, a fait accompli decision, failure to respond in writing to
the submission, failure to furnish a management structure, and
failure to explore alternatives.
46.2 Duration of unemployment: Le Roux was unemployed for
approximately one year before securing new employment. This is
a direct and substantial consequence of the retrenchment.
46.3 Career disruption: Le Roux left a permanent position at Stefanutti
Stocks to join Vanalls. The retrenchment after less than 11
months caused significant career disruption and personal
hardship.
46.4 Financial impact: The impact on Le Roux and his family was
severe by his unchallenged evidence.
[47] Having regard to all these factors, a just and equitable award of
compensation equivalent to eight (8) months’ remuneration, being
R880,000, is appropriate. This amount reflects the seriousness of the
procedural defects — particularly the fait accompli finding and the failure
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to identify Le Roux as an affected party — while accounting for the
mitigating factors noted above.
Costs
[48] The respondent should pay the applicant’s costs given the circumstances
leading to the retrenchment of Le Roux. The important factor being that
Le Roux was taken by surprise when he received the letter of
retrenchment.
[49] Essentially, Le Roux did not receive the benefit of any of the rights
envisaged in section 189 of the LRA.
[50] In the results the following order is made:
Order
1. The dismissal of the applicant was procedurally and substantively
unfair.
2. The applicant is awarded compensation equivalent to eight (8)
month’s remuneration, which is R880 000, 00.
3. The respondent is ordered to pay the costs.
__________________
S. B. Nhlapo
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant : Advocate N Wagemaker
Instructed by : Serfontein Viljoen & Swart Attorneys
For the Respondent : Advocate M Jacobs
Instructed by : Cilliers & Reynders Attorneys