THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
CASE Number: JS 447 / 20
In the matter between:
MMBENGENI RONALD MUTAVHATSINDI Applicant
and
PRESTIGE PRESSINGS AND COMPONENTS (PTY) LTD Respondent
This j udgment was handed down electronically by circulation to the parties and
legal representatives by email. The date and time for hand-down is deemed to
be 22 April 2026
Summary: Settlement – employer contending dispute settled – terms of
retrenchment agreement considered – no provision in agreement to settle
unfair dismissal dispute – intention of agreement never to settle dispute –
employee’s claim not compromised – settlement point refused
Dismissal – Operational requirements – selection of employee for retrenchment
– selection of employee agreed to in retrenchment agreement with union –
employee bound by agreement – dismissal substantively fair
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES:
YES/NO
(3) REVISED: YES/NO
22 April 2026
2
Dismissal – operational requirements – procedural fairness – s 189A of LRA
applies to process – unfair dismissal dispute referred to Court in terms of s
191(5)(b)(ii) of LRA – no section 189A(13) application brought – Court having
no jurisdiction to decide procedural fairness
Operational requirements – retrenchment agreement with union – employee
contends agreement concluded without his knowledge / mandate – s 200 of
LRA considered – employee bound by agreement concluded with union
Operational requirements – duty to consult – employer not obliged to consult
with employee individually where employee member of union
Dismissal – operational requirements – dismissal substantively fair – no
jurisdiction to decide procedural fairness – claim dismissed
JUDGMENT
SNYMAN, AJ
Introduction
[1] This matter concerns an unfair dismissal dispute arising from the dismissal of
the applicant by the respo ndent for opera tional requirements. The applicant
contended that his dismissal by the respo ndent was both substantively and
procedurally unfair. He brought his unfair dismissal case to this Court in terms
of section 191(5)(b) (ii) of the Labour Relations Act (‘LRA’) 1, by way of a
statement of claim filed on 12 August 2020. The applicant ultimately did not
seek reinstatement, and prayed for maximum compensation as consequential
relief.
[2] The respondent opposed the matter. The respondent also raised an issue in
limine, to the effect t hat the unfair dismissal dispute had been fully and finally
settled by way of a retrenchment agreement signed on 24 June 2020 by the
applicant’s trade union, UASA. On the merits, the respondent contended that it
had a proper operational rationale to dismiss the applicant , there were no
alternatives ava ilable, the applicant had been selected for retrenchment by
1 Act 66 of 1995 (as amended).
3
agreement, and the applicant was only dismissed following a proper
consultation process as contemplated by section 189 of the LRA. The
respondent sought relief that the matter be dismissed.
[3] The matter came before me on trial on 27 November 2025 , and at the
conclusion of the hearing I reserved judgment. I will now set out the relevant
background facts as the departure point in deciding this matter.
The relevant background
[4] Fortunately, in this matter, the bulk of the important facts turned out to be
either undisputed or common cause. In particular, and despite disputing this in
the pre-trial minute, the applicant conceded that he was at all relevant times a
member of the trade union, UASA. It was also undisputed that section 189A
applied to the retrenchment proceedings in this case.
[5] One important issue however did remain in dispute . According to the
applicant, and when he attended at the premises of the respondent on 4 June
2020, he found 15 casual employees still working there. Vuyo Skaal (Skaal),
the respondent’s HR manager and the witness for the respondent , testified
that this allegation was false and ther e were no casuals working at the
respondent as alleged. Skaal explained is that all that happened on 4 June
2020 was that the applicant came to the premises to collect his certificate of
service, which was given to him.
[6] Insofar as I must decide which version to prefer, I have little hesitation in
accepting the evidence of Skaal. Where it came to the applicant giving
evidence, he was evasive and argumentative when answering questions. He
also contradicted himself in material respects. Despite his admission at the
start of the hearing that he was a UASA member, he later under cross -
examination denied he was a UASA member and contended he resigned as a
member before the retrenchment process started, an issue never raised
before.
2 He disputed that there were any meetings he weas aware of, but then
before.
2 He disputed that there were any meetings he weas aware of, but then
2 It may be mentioned that the evidence showed that UASA membership deductions for the applicant
were still being made from the applicant’s salary until June 2020.
4
conceded he knew of a meeting on 3 June 2020 which he attended. 3 He even
said that he did not know why he was dismissed, when it was common cause
he was retrenched due to the operational requirements of the respondent . In
Ehlers v Bohler Uddeholm Africa (Pty) Ltd 4 the Court held that a witness that
was argumentative and constantly asked for questions to be repeated was not
credible. In Ngozo and Others v Scorpion Legal Protection5 the Court equally
had regard to a witness being argumentative, but then also considered the fact
that the witness was evasive in answering a number of critical questions, in
rejecting the testimony of the witness . The conduct of the applicant is
comparable to the following dictum from the judgment in Hlongwane v Cisco
Systems SA and Another
6 where the Court reasoned as follows in preferring
the evidence of the respondent over the applicant in that case:
‘The applicant was, with due respect to him, a profoundly poor witness to say
the least. It would appear he came into the witness stand having considered
and strategized as to what his testimony was going to be irrespective of what
questions would be put to him. His strategy seems to have been that the truth
was only that which favoured his case and that he would not change his stand
irrespective of questions or versions put to him. His strategic approach was to
deal with difficult questions or those whose underlying purpose was to seek to
undermine his case by bringing in some points unrelated to the questions. He
was indeed a man loyal to his strategy but at times seems to have failed to
understand the difference between strategy and tactics. He is a man not to be
trusted with the truth and thus anything in his version that purports to be the
truth has to be evaluated against all probabilities before it can be accepted as
such. As I listened and observed his mannerisms in the witness stand, I
wondered whether he seriously believed in his own story. …’
wondered whether he seriously believed in his own story. …’
[7] I wish to make a final reference to Simelane and O thers v Letamo Estate7
where the Court in that matter was seized with an unfair retrenchment dispute
3 It is significant that this was the meeting where it was explained directly to employees how the TERS
process (as an alternative) worked.
4 (2010) 31 ILJ 2383 (LC) at para 27.
5 (2008) 29 ILJ 1039 (LC) at para 48.
6 (2011) 32 ILJ 625 (LC) at paras 43 – 44.
7 (2007) 28 ILJ 2053 (LC).
5
and also dealt with an applicant that behaved very much in the same manner
as the applicant now before me.8 The Court held:9
‘All in all, his testimony was not satisfactory and the court finds no basis upon
which it can rely on such evidence. The court prefers the version of the
respondent's witnesses above that of his on issues that he sought to
contradict their testimony. …’
[8] Therefore, and when I am required have regard to disputed evidence when I
decide this matter, I will only have accept the applicant’s testimony that is
either corroborated by or consistent with the testimony of Skaal , and what is
contained in the pre-trial minute. The factual matrix summarized below is
arrived at on this basis.
[9] The business of the respondent is that of the manufacturer of aluminium
components. According to the respondent, the business was suffering financial
difficulties. As a result, and in order to remain competitive in a scenario where
it was experiencing diminished sales, the respondent had to reduce its product
prices which further compounded financial losses. In an attempt to reduce
costs, some production functions had been outsourced, but this did not yield
the needed result . The financial statements of the respondent , which formed
part of the documentary evidence, showed an operating loss of R2 849 403.00
for the financial year ending 31 December 2019.
[10] The restructuring process in the respondent commenced on 5 February 2020,
when the respondent issued all the employees and the trade unions with
membership in the respondent, with notices as contemplated by section
189(3) of the LRA. In particular, this notice was transmitted to UASA and
NUMSA. The respondent at the time employed 96 employees. It was reflected
in the section 189(3) notice that 33 employees had been dismissed in the
preceding 12 months for operational requirements and it was contemplated
that a total of 1 9 employees would be affected by the current restructuring.
that a total of 1 9 employees would be affected by the current restructuring.
This number of affected employees however only related to one section in the
respondent, and when the process started, the real number of employees
8 See the discussion by the Court of the applicant’s evidence int hat case at paras 15 – 20 of the
judgment.
9 Id at para 21.
6
affected in the whole business was established to be 69 employees. In
response to receiving the notice, UASA applied on 19 February 2020 in terms
of section 189A (3)(b) that the retrenchment consultations be conducted by
way a CCMA facilitated process.
[11] The CCMA convened a facilitated retrenchment consultation process, under
case number GAEK 2081 -20. Senior commissioner Mpumelelo Nconco was
appointed as facilitator. In the end, several facilitated consultations were held
at the premises of the respondent, facilitated by commissioner Nconco, during
the period March to June 2020. UASA fully participated in these consultations.
The consultations were held on 2 and 19 March 2020, 29 May 2020, and 3, 18
and 24 June 2020. The consultations were also attended by NUMSA and
elected non-unionised employee representatives. The final consultation was
held on 24 June 2020. Further, and during the course of the consultations , but
outside the facilitated f orum, the parties continued to consult with each other
on the issue of employees that wanted to accept a voluntary retrenchment
package and so reduce the number of forced retrenchments.
[12] In the last consultation on 24 June 2020, all the parties to the retrenchment
process signed a memorandum of agreement, finally determining the
retrenchment process (the agreement) . UASA in particular also signed the
agreement. In this agreement, it was accepted that there was a proper
rationale for retrenchment. It was also agreed that selection for retrenchment
was done on the basis of LIFO and skills retention, in that order. As to
alternatives, the agreement recorded short time and the TERS training layoff
as the only possible viable alternatives. The agreement further dealt with and
determined all the other consultation topics in terms of section 189 of the LRA.
The unions ultimately rejected the option of short time, and none of the
employees opted for the TERS training layoff.
employees opted for the TERS training layoff.
[13] In the context of what was agreed to on the substance of the retrenchment
consultation topics, and in the agreement , the parties specifically identified a
list 43 employees that would be selected for retrenchment . These employees
were identified by name in the agreement . It was also recorded that 11
employees, also identified by name in the agreement, had accepted voluntary
retrenchment packages.
7
[14] The agreement contained a section headed ‘ Parties have been unable to
agree’. This section contained a list of 15 names of employees, one of which
was the applicant. The agreement recorded as follows where it came to what
the parties had failed to agree on where it came to these 15 listed employees :
‘Position of the following 15 employees. As it stands the respondent has paid
to them their severance package. A dispute has arisen between the parties in
respect of the timing in respect of the payment and retrenchments. The parties
reserve their rights in respect of the 15’.
[15] According to S kaal, the 43 employees identified without reservation of rights,
the 11 employees that accepted voluntary retrenchment packages, and the 15
employees in respect of whom rights were reserved as agreed, made up the
total of 69 employees affected by the restructuring, and whose employment
was ultimately terminated as a result of the restructuring. Skaal testified that in
terms of the agreement, the applicant had been selected for retrenchment by
agreement with UASA, as his representative trade union.
[16] The agreement contemplated the retrenchments (termination of employment)
would be effective at the end of May 2020. The agreement recorded that all
termination payments, including severance pay of two weeks’ salary for each
completed year of service, had been p aid to the employees already on 12
June 2020. It is in this context that the parties could not achieve consensus on
the timing of the retrenchments, and the payment of severance pay, in respect
of the 15 employees listed in the agreement. It appears the remaining issue in
dispute was that the actual retrenchment of the 15 employees was premature.
[17] As to the applicant himself, his employment was indeed terminated by way of
a notice of retrenchment on 29 May 2020. He was also paid his severance
package and final termination pay on 12 June 2020, and was given his
package and final termination pay on 12 June 2020, and was given his
certificate of service on 4 June 2020. The applicant was not assisted by UASA
in pursuing his dismissal further as an unfair dismissal dispute. He referred an
unfair dismissal dispute himself to the Metal and Engineering Industries
Bargaining Council (MEIBC) on 12 June 2020. The dispute was
unsuccessfully conciliated by the MEIBC on 8 July 2020, a certificate of failure
to settle was issue d on that date, and the dispute was then referred to this
Court on 12 August 2020.
8
[18] The applicant was assisted by the SASLAW Pro Bono offices in conducting a
pre-trial with the respondent , which pre- trial was held on 14 October 2020. A
minute was prepared on the same date and signed by both parties. In the
minute, four essential facts in dispute were identified. This was whether the
applicant had been dismissed for operational requirement (this turned out later
not to be disputed), whether the respondent held any consultation meetings
with the applicant, whether the applicant was a member of UASA which
represented him in the consultation process (which also turned out not to be
disputed), and whether the applicant accepted the retrenchment. Under issues
for the Court to decide, it is recorded that two main issues need to be decided,
namely whether the applicant accepted the retrenchment, and whether his
retrenchment was substantively and procedurally fair.
Was the dispute settled
[19] When the matter commenced on trial, Skaal, who was also representing the
respondent in the trial, indicated that he wished to raise a point in limine to the
effect that the unfair dismissal dispute of the applicant had been fully and
finally settled between the respondent and UASA by way of the agreement, to
which the applicant was bound. It appears that this is what was meant by the
respondent when recording in the pre-trial minute that it needed to be decided
whether the applicant had accepted the retrenchment.
[20] The aforesaid contention by the respondent can in my view be disposed of
with relative ease. The answer lies in a proper interpretation of the agreement.
The principles relating to the interpretation of agreements are by now trite. In
Natal Joint Municipal Pension Fund v Endumeni Municipality
10 the Court
decided as follows:
‘... The present state of the law can be expressed as follows: Interpretation is
the process of attributing meaning to the words used in a document, be it
the process of attributing meaning to the words used in a document, be it
legislation, some other statutory instrument, or contract, having regard to the
context provided by reading the particular provision or provisions in the light of
the document as a whole and the circumstances attendant upon its coming
into existence. Whatever the nature of the document, consideration must be
10 2012 (4) SA 593 (SCA) at para 18.
9
given to the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears; the apparent purpose to
which it is directed and the material known to those responsible for its
production. Where more than one meaning is possible each possibility must
be weighed in the light of all these factors. The process is objective, not
subjective. A sensible meaning is to be preferred to one that leads to
insensible or unbusinesslike results or undermines the apparent purpose of
the document. Judges must be alert to, and guard against, the temptation to
substitute what they regard as reasonable, sensible or businesslike for the
words actually used. To do so in regard to a statute or statutory instrument is
to cross the divide between interpretation and legislation; in a contractual
context it is to make a contract for the parties other than the one they in fact
made. The 'inevitable point of departure is the language of the provision
itself', read in context and having regard to the purpose of the provision and
the background to the preparation and production of the document.
’
[21] The approach established in Endumeni supra has been consistently applied
since11, including by the Labour Appeal Court. 12 As held i n University of
Johannesburg v Auckland Park Theological Seminary and Another13:
‘The approach in Endumeni 'updated' the previous position, which was that
context could be resorted to if there was ambiguity or lack of clarity in the
text. The Supreme Court of Appeal has explicitly pointed out in cases
subsequent to Endumeni that context and purpose must be taken into
account as a matter of course, whether or not the words used in the
contract are ambiguous. A court interpreting a contract has to, from the
onset, consider the contract's factual matrix, its purpose, the
circumstances leading up to its conclusion, and the knowledge at the
time of those who negotiated and produced the contract
time of those who negotiated and produced the contract
[22] In my view, when applying the principles as aforesaid, it is clear that the
agreement does not intend, nor does it serve, to fully and finally settle an y
11 See Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk 2014 (2) SA
494 (SCA) at para 12; Unica Iron and Steel (Pty) Ltd and Another v Mirchandani 2016 (2) SA 307
(SCA) at para 21 and all the authorities cited there; Nel v De Beer and Another 2023 (2) SA 170 (SCA)
at paras 22 – 23; Capitec Bank Holdings Ltd and Another v Coral Lagoon Investments 194 (Pty) Ltd
and Others. 2022 (1) SA 100 (SCA) at paras 50 – 51.
12 See for example the recent case of Sugar Berry CC t/a Horison Staff Solutions v Motor Industry
Bargaining Council and Others (2026) 47 ILJ 188 (LAC) at para 13.
13 2021 (6) SA 1 (CC) at para 66.
10
unfair dismissal dispute between the applicant and the respondent. This is
apparent from the wording of the agreement, the nature of the agreement and
the context in which it was concluded. It is clear that the agreement was
concluded in the context of a facilitated consultation process under section
189A and then, pursuant to such process, serves to record the terms of the
consensus achieved by the parties pursuant to such process which ended on
24 June 2020 with the conclusion of the agreement. In short, the agreement
never sought to settle any dispute relating to the dismissal of employees for
operational requirements . It sought to record the terms of the consensus
achieved where it came to the retrenchment topics to be consulted upon in
terms of section 189 of the LRA. And at the time of it being concluded, there
was simply no contemplated or envisaged unfair dis missal dispute(s) between
any of the parties that would be compromised by way of a settlement recorded
in the agreement . In South African Football Association v Fli -Afrika Travel
(Pty) Limited14 the Court held as follows:
‘I have sketched, in some detail, the background to and context in which the
settlement agreement came to be concluded. That background and context is
important for purposes of interpreting the agreement and determining its
scope and purpose. … ’
[23] The wording of the agreement in itself works against the notion that it sought
to settle any unfair dismissal dispute. The agreement records, as set out
earlier, that a list of 15 employees still disputed aspects of their retrenchment,
being the timing of the retrenchment and severance packages. The rights of
these 15 employees were reserved. This included the applicant. Further,
nothing is said about any party to the agreement not being entitled to pursue
an unfair dismissal dispute, which would be expected, especially where trade
unions are involved . A comparable illustration of the point can be found in
unions are involved . A comparable illustration of the point can be found in
Masinga v Almar Investments (Pty) Ltd 15 where it was held as follows in the
Court finding that there was no settlement:
‘The applicant stated expressly that an amount of R550,000 ‘will be accepted
provided you apply for tax (sic) directive and see how much is due and
payable after deductions’. Nothing in this statement evidences the final
14 2020 JDR 0306 (SCA) at para 45.
15 (2025) 46 ILJ 379 (LC) at paras 18 – 19.
11
conclusion of an agreement; it was dependent on determining what amount
the applicant would receive after tax had been deducted. This is consistent
with Advocate Serogole’s statement in the email above that he would ‘still
have to see after the tax directive, how much is payable to our client’.
The applicant was clear in his view, namely that he would consider a
settlement of R550,000 which was dependent on understanding what he
would have to pay in tax. This, in the view of the court, is not an unequivocal
acceptance of an offer previously made or an unequivocal offer made in
response thereto. …
’
[24] In any event, I believe that where it comes to compromising an employee’s
right to pursue an unfair dismissal dispute to this Court, it is not something that
would be lightly inferred. It is my view that any agreement concluded between
an employee and an employer that seeks to compromise this right must
specifically say so. It must contain a reference, for example, that any dispute
between the employer and the employee with regard to the termination of the
employee’s employment with the employer is fully and finally settled .16 As said
in Fli-Afrika Travel supra17:
‘As important, however, are the words used by the parties. The agreement
described itself as an agreement in full and final settlement. … ’
[25] In sum, the agreement does not serve to establish that the applicant accepted
his retrenchment. Certainly, the agreement does not settle the unfair dismissal
dispute he could pursue against the respondent. The purpose of the
agreement was only to record the consensus that had been achieved where it
came to the topics to be dealt with in the retrenchment consultations. Of
importance in casu, it recorded who had been selected for retrenchment, thus
applying what can be said to be agreed retrenchment criteria, and this indeed
included the applicant . But there is nothing to indicate that an individual
included the applicant . But there is nothing to indicate that an individual
employee so selected for retrenchment, such as the applicant, would be
deprived of the right to still pursue an unfair dismissal dispute in terms of the
LRA. Whilst th e applicant being an agreed candidate selected for
retrenchment would be a formidable obstacle for the applicant to overcome
16 Compare Fleet Africa (Pty) Ltd v Nijs (2017) 38 ILJ 1059 (LAC ) at paras 28 and 32; Buthelezi v
Liberty Group Ltd (2012) 33 ILJ 607 (LC) at para 9.
17 Id at para 46.
12
when challenging the substantive fairness of his dismissal, it cannot mean that
his right to pursue that dispute had been compromised. I am thus not
convinced that the respondent’s contention that the applicant has accepted his
retrenchment and / or that the applicant’s unfair dismissal dispute has been
settled, has any substance. This contention raised by the respondent is thus
rejected, and I will now turn to deciding whether the applicant’s dismissal was
substantively fair.
Was the dismissal substantively fair?
[26] In deciding whet her a dismissal is substantively fair, the Court must decide
whether in general there was a proper rationale for the retrenchment, and if
so, whether the retrenchment of the particular employee concerned was fair.
This is often referred to as the general question and the specific question. As
said in Chemical Workers Industrial Union and Others v Latex Surgical
Products (Pty) Ltd18:
‘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 relates to whether or not there was a reason to dismiss any
employees in the first place.’
[27] In casu, the rationale / reason for retrenchment was not really in dispute. In his
statement of claim, the pleaded case of the applicant was that he was not
consulted by the respondent at all, that the selection criteria was not
transparent, and the retrenchment procedure was ‘not fair and just’. And in the
transparent, and the retrenchment procedure was ‘not fair and just’. And in the
pre-trial minute, the applicant records that the reason why he disputes the
rationale for retrenchment is because when he went to the respondent’s
premises on 4 June 2020, he found 15 casuals working here, which in my view
really alludes to an issue of selection. It thus appears that the applicant himself
18 (2006) 27 ILJ 292 (LAC) at para 55.
13
did not really challenge the rationale for retrenchment. In any event, and in the
agreement, UASA agreed that there was a proper rationale for retrenchment.
The general question must therefore be answered in favour of the respondent.
[28] I believe that deciding substantive fairness in this case turns on answering the
specific question, meaning the selection of the applicant for retrenchment . It is
clear that the applicant is dissatisfied with being selected for retrenchment . He
is essence raised two causes of complaint in this respect. The first is that
objective selection criteria was not applied to him. The second is that he was
not consulted in any way about being selected for retrenchment, and was
simply informed of his retrenchment.
[29] Dealing first with the issue of the applicant ’s contention of finding 15 casuals
employed at the respondent when he attended at the premises of the
respondent on 4 June 2020, which he did raise in the pre- trial minute, this was
pertinently disputed by Skaal for the respondent, who testified that no such
casuals were employed or could be found at the respondent’s prem ises on 4
June 2020. For the reasons dealt with earlier in this judgment, the evidence by
Skaal is to be preferred over that of the applicant. I also consider that the
applicant failed to provide any particularity in this regard, other than bald
statement. And considering what actually happened in the course of the
retrenchment process, I find it unlikely that consensus could ever have been
achieved between the parties on selecting employees for retrenchment if there
were casuals still employed at the respondent. I thus reject this part of the
applicant’s case.
[30] I will deal with the issue of the applicant’s assertion that no objective selection
criteria was applied. The difficulty that faces the applicant where it comes to
this part of his case is that the LRA specifically provides for agreed selection
this part of his case is that the LRA specifically provides for agreed selection
criteria in section 189(7), which reads: ‘ The employer must select
the employees to be dismissed according to selection criteria – (a) that have
been agreed to by the consulting parties; or (b) if no criteria have been agreed,
criteria that are fair and objective’. Therefore, fair and objective criteria is only
14
required to be applied if there is no agreed criteria. The Court in Gijima AST
(Pty) Ltd v Hopley19 held as follows in this respect:
‘It would not make sense to declare a selection criterion agreed to by the
parties unfair only because it was agreed to and that it does not comply with
the requirement of being fair and objective as stipulated in s 189A. If the
consulting parties are precluded from agreeing on selection criteria it would
mean that it shall be in the prerogative of the employer in all mass dismissals
under s 189A to decide on selection criteria and his or her selection would be
insulated if it is found to be fair and objective. That in my view cannot be the
object of the Act which seeks to encourage, inter alia, consultation, fairness,
participatory engagement and openness. The same test that applies in
assessing the fairness or otherwise of a retrenchment under s 189 should not
be different from the retrenchments under s 189A except in terms of the
additional obligations imposed by s 189A. In my view, the court a quo erred
insofar as it may have found that s 189A should be interpreted to limit the
method for selection to criteria that are fair and objective only
.’
[31] In casu, the agreement establishes what can be said to be agreed selection
criteria. The employees that fell to be retrenched was identified and listed in
the agreement in terms of these agreed selection criteria. This establishes, as
held in Hopley supra 20: ‘Having found that nothing prevented the parties
from agreeing to selection criteria as they did in this case what needs to be
determined is whether the agreed selection criteria were applied …’, the
application of the agreed criteria on a consensus basis. The applicant was one
of the employees so identified for retrenchment in terms of the agreed criteria .
The applicant was a member of UASA, and as such, would be bound by the
terms of the agreement. It follows that the applicant was selected for
terms of the agreement. It follows that the applicant was selected for
retrenchment by agreement pursuant to agreed selection criteria.
[32] The next complaint to be considered would be the issue of the applicant not
being consulted by the respondent at all. This is of course true, as it is
19 (2014) 35 ILJ 2115 (LAC) at para 35. In Latex Surgical Products (supra) at para 85, the Court held
that agreed selection criteria may e ven be subjective, reasoning as follows: ‘… An employer and a
union are free to agree upon selection criteria that are or may be subjective. When the agreed
selection criteria are subjective, the employer does not act unfairly in using such selection criteria to
select the employees to be dismissed. Indeed, he may be acting unfairly if he departed from
the agreed selection criteria simply because they are or may be subjective or may include a certain
element of subjectivity …’.
20 Id at para 36.
15
undeniable that the applicant himself was never consulted by the respondent.
The applicant, personally, was not party t o any of the consultations held under
the auspices of the CCMA . He was also not personally invited to any of the
consultations, and as indicated in the pre-trial minute, he was not aware of any
of them. But he was not able to dispute that these consultations were held and
that UASA was a party to and participant in the consultations . Where it comes
to this cause of complaint raised by the applicant, it is yet again his
membership of UASA that completely scuppers his case in this regard .
Because the applicant is a member of UASA, which is a registered trade union
recognised in the respondent, there is simply no duty or obligation on the
respondent to also consult with the applicant personally or individually. It only
needs to consult with UASA on his behalf.
[33] The reality that the respondent was only required to consult with UASA and
not also with the applicant individually, is made clear by way of the following
dictum in Baloyi v M & P Manufacturing21:
‘In keeping with a premise of the Act, s 189(1) envisages that the collectivities
of management and labour represented by trade unions should engage in an
appropriate process of consultation, save where the affected employees are
not so represented. To interpret the section so as to allow an employee
represented by a union to engage in a parallel process of consultation would
undermine the very purpose of the section. … ’
Further, in Mbombo and Others v Rennies Bulk Terminals22 the Court said:
‘The respondent was obviously not obliged to consult with the applicants
directly. That is because they were members of the union and in terms of s
189(1) of the LRA, the respondent was obliged to consult with the union only
… ’
And recently, the LAC in Tsogo Sun Casinos (Pty) Ltd t/a Emnotweni Casino v
SA Commercial Catering and Allied Workers Union on behalf of Mavuso and
Others23 decided:
Others23 decided:
21 (2001) 22 ILJ 391 (LAC) at para 23.
22 (2002) 23 ILJ 1587 (LC) at para 15.
23 (2026) 47 ILJ 947 (LAC) at para 49.
16
‘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 s 189(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.
’
[34] The applicant, upon being confronted with the reality that be was member of
UASA and that the respondent is only obliged to consult with UASA on his
behalf, sought to escape the consequences of this by contending that he was
dissatisfied with UASA because UASA never briefed him on the restructuring
and consultations and never obtained his mandate. He even suggests that
UASA mislead him about what was happening, and the first he knew of
anything was when he received a retrenchment notice. There is once again a
simple answer to this cause of complaint, which I will deal with next.
[35] When a trade union represents or acts on behalf of its members under the
LRA, it does not do so as an agent. It does so in its own name and in place
and instead of its members in order to protect their interests.
24 As such,
agreements concluded between a trade union and an employer cannot be
contradicted or assailed based on a case that the members of the trade union
did not mandate or approve the agreement. If a trade union, acting in its own
name and representing it is doing so on behalf of its members, fails to obtain a
proper mandate for its conduct from its members, that is a matter between the
trade union and its members and does not concern the employer. This flows
from section 200(1) of the LRA, which reads:
from section 200(1) of the LRA, which reads:
'A registered trade union or registered employers' organisation may act in any
one or more of the following capacities in any dispute to which any of its
members is a party —
24 In Blyvooruitzicht Gold Mining Co Ltd v Pretorius [2000] 7 BLLR 751 (LAC) at para 12, the Court
said: ‘… There is no merit in the point that the union representative who conducted the discussion on
behalf of UASA had not been mandated by the respondent. When a trade union conducts negotiations
of this kind, it represents the interests of employees. It acts as their spokesperson. It does not act as
the agent of any one of them …’.
17
(a) in its own interest;
(b) on behalf of any of its members;
(c) in the interest of any of its members.’
[36] In Fakude and Others v Kwikot (Pty) Ltd 25 the Court pertinently dealt with the
basis upon which a trade union act s, with specific reference to section 200 of
the LRA, and held as follows:
‘… a trade union is entitled to take any decision on behalf of either the majority
or the minority of its members without necessarily having to obtain the
members' consent, even if such a decision is to adversely affect those
members. In other words, members affected by a decision taken by a union
without their consent are bound by such a decision and are unable as a matter
of principle to withdraw from such an agreement. Any decision taken by a
trade union either detrimental or beneficial to some of its members cannot be
said to be unconstitutional because the trade union would have derived the
power to act in that particular manner in terms of the provisions of s 200 of the
LRA which in turn has its basis in terms of s 23 of the Constitution.
’
[37] Next, in City of Johannesburg Metropolitan Municipality and Others v
Independent Municipal and Allied Trade Union and Others26 the Court
pertinently decided:
‘In my view, the court a quo correctly held in respect of this point that SALGA
could bind its members by entering into the settlement agreement even
though individual members, including the second appellant and the intervening
party, did not give it a specific mandate to do so.
It is well established that an employers’ organisation, like a trade union, does
not act as an agent of its individual members but represents the body of its
members. It acts in the place of its members, representing their interests and it
decides how best to do so …
’
And lastly, the position was made quite clear in Mhlongo and Others v Food
and Allied Workers Union and Another27 where the Court had the following to
say:
25 (2013) 34 ILJ 2024 (LC) at para 29.
say:
25 (2013) 34 ILJ 2024 (LC) at para 29.
26 (2017) 38 ILJ 2695 (LAC) at paras 60 – 61.
27 2007) 28 ILJ 397 (LC) at para 14. See also SA Post Office Ltd v Communication Workers Union and
Others (2010) 31 ILJ 997 (LC) at para 23.
18
‘The union was not an agent of the applicants as one would terminate the
authority of an attorney. The union representation is based on the principle of
majoritarianism. The employer negotiates with the majority union. If
employees are members of the union, the employer is not required to
negotiate with individual employees in addition to negotiating with the union.
The applicants now want the company to deal directly with them whilst they
remain members of the union. The employer is entitled to refuse to deal with
them directly.
’
[38] Two specific authorities decided in the context of an agreement between a
trade union and an employer in the case of an operational requirements
consultation process bear specific mention. First, and in Mbombo and Others v
Rennies Bulk Terminals 28 the Court held as follows, having decided on the
facts (similar to what the applicant is complaining of in casu ) that the union
never informed its members about the selection criteria to be utilized:
‘The respondent was obviously not obliged to consult with the applicants
directly. That is because they were members of the union and in terms of s
189(1) of the LRA, the respondent was obliged to consult with the union only
… ’
Secondly, and in a case also involving UASA, the Court in National Union of
Mineworkers and Others v Geffens Diamond Cutting Works (Pty) Ltd29 said:
‘The fact is that an agreement was reached between UASA and the
respondent with regard to the substantive and procedural aspects of the
retrenchment in question and should there have been any defects, surely
UASA should then declare a dispute and not the applicants as represented by
the first respondent. Further it is submitted that, should there be any
irregularity that took place detrimental to the individual applicants' interest,
then the only recourse in this regard would be against UASA. The applicants'
relationship with UASA has nothing to do with the respondent. …
relationship with UASA has nothing to do with the respondent. …
Whether the respondent had a legal duty to consult with NUM or individual
applicants individually was another issue in dispute between the parties. There
is simply no basis in law why the respondent should consult NUM as a
28 (2002) 23 ILJ 1587 (LC) at para 15.
29 (2008) 29 ILJ 1227 (LC) at paras 41 and 43.
19
minority union or with the individual applicants individually despite the
individual applicants being members of UASA and the latter being the majority
union at the time. … ’
[39] It follows that the applicant’s complaint about not been individually consulted
by the respondent and that UASA acted without his knowledge or mandate,
does not substantiate his case of substantive unfairness . In summary,
selection criteria had been agreed to with UASA, which is a registered trade
union of which the applicant was at all relevant times a member. The applicant
was selected for retrenchment by agreement in terms of these criteria. Even if
it is accepted that UASA acted without the knowledge or mandate of the
applicant in agreeing to him being selected for retrenchment, that simply does
not matter, and he remains bound to what UASA had agreed to. His complaint
in this respect is a matter between himself, and UASA, and does not concern
the respondent. Ultimately, the specific question must also be answered in
favour of the respondent, and the selection of the applicant for retrenchment
was fair.
[40] Therefore, considering the respo ndent has succeeded in answering both the
general and specific question s in its favour , as I have found to be the case
above, it must follow that the dismissal of the applicant by the respondent was
substantively fair.
Was the dismissal procedurally fair?
[41] Where it comes to the applicant’s complaint relating to procedural fairness,
there is a simple answer , founded on the undisputed fact that section 189A
applies in this case . Once section 189A applies, this has an important
consequence where it comes to the issue of this Court determining the
fairness of any dismissals emanating from this section. This consequence is
that substantive and procedural fairness are separated. In the case of
substantive fairness, this is dealt with in the ordinary course by way of an
substantive fairness, this is dealt with in the ordinary course by way of an
unfair dismissal dispute referred to this Court in terms of section 191(5)(b) (ii)
as read with section 191(11)(a) of the LRA.
30 But where it comes to procedural
fairness, and should there be any issue or dispute about whether the
restructuring / retrenchment process is being dealt with by the employer in a
30 See sections 189A(7)(b)(ii) and 189A(8)(b)(ii)(bb).
20
procedurally fair manner, this must be pro- actively pursued to this Court by
way of an application in terms of section 189A(13) of the LRA. 31 The idea is to
have expeditious and pro-active judicial intervention to ensure compliance with
a fair process, and so avoid an ex post facto autopsy on a point by point basis
of the retrenchment exercise, long after the fact, to decide whether it was
procedurally fair,32 and if found to be unfair, awarding some compensation as
a result, instead of remedying what was wrong to possibly avoid dismissal .33
The point is that the Court in a section 189A(13) application, acting pro-
actively, can reverse or stop any unfair process to ensure that it is done
properly, and even reinstate dismissed employees to ensure that they are
consulted properly.
[42] Because of this separation of processes relating to determining substantive
and procedural fairness where it comes to dismissals under section 189A of
the LRA, the Labour Court is deprived of jurisdiction to entertain a dispute
concerning the procedural fairness of a dismissal, where the unfair dismissal
dispute is brought before the Court in terms of section 191(5)(b) (ii) as read
with section 191(11) of the LRA. The Court can only consider substantive
fairness. This is evident from Section 189A (18), which provides: ‘The Labour
Court may not adjudicate a dispute about the procedural fairness of a
dismissal based on the employer's operational requirements in any dispute
referred to it in terms of section 191(5)(b)(ii). ' The Constitutional Court in
Steenkamp and Others v Edcon Ltd (National Union of Metalworkers of SA
intervening)
34 said the following where it comes to section 189A(18):
‘… only a dispute concerning whether there is a fair reason for dismissal may
be referred to the Labour Court for adjudication. In fact subsection (18)
precludes the Labour Court from adjudicating any dispute about the
precludes the Labour Court from adjudicating any dispute about the
31 The section reads: ‘If an employer does not comply with a fair procedure, a consulting party may
approach the Labour Court by way of an application for an order - (a) compelling the employer to
comply with a fair procedure; (b)interdicting or restraining the employer from dismissing an employee
prior to complying with a fair procedure; (c) directing the employer to reinstate an employee until it has
complied with a fair procedure; (d) make an award of compensation, if an order in terms of paragraphs
(a) to (c) is not appropriate’.
32 See Forbes and Others v SA Municipal Workers Union (2014) 35 ILJ 687 (LC) at para 20; SA
Society of Bank Officials v Standard Bank of SA (2011) 32 ILJ 1236 (LC) para 29; Insurance and
Banking Staff Association and Another v Old Mutual Services and Technology Administration and
Another (2006) 27 ILJ 1026 (LC) at para 9; National Union of Metalworkers of SA v General Motors of
SA (Pty) Ltd (2004) 25 ILJ 2358 (LC) at paras 34 and 35.
33 Ordinarily, only compensation can be awarded for a procedurally unfair dismissal – see section
193(2)(d). But section 189A(13) changes this..
34 (2016) 37 ILJ 564 (CC) at para 158.
21
procedural fairness of a dismissal for operational requirements referred to it in
terms of s 191(5) (b)(ii). … Subsection (18) may seem very drastic and harsh
on employees who may be having a dispute with their employer concerning
the procedural fairness of their dismissal. However, it will be seen that, when
read with subsection (13), it is not harsh at all. Subsection (13) provides
extensive protections to employees where the employer has failed to comply
with a fair procedure.
’
[43] Recently, the Constitutional Court in Regenesys Management (Pty) Ltd v
Ilunga and Others35 dealt with this issue again, and decided:
‘By virtue of ss 18, the Labour Court has no jurisdiction to adjudicate in terms
of s 191(5) (b)(ii) a dispute about the procedural fairness of a dismissal for
operational requirements to which s 189A applies, because the LRA provides
a special procedure and special remedies in ss 13 for such disputes. In other
words, such disputes cannot competently be referred to the Labour Court in
terms of s 191(5) (b)(ii) for adjudication because the LRA has a special
procedure and special remedies for such disputes in ss 13 in terms of which
they can be adjudicated by the Labour Court.
’
[44] In casu, the applicant’s unfair dismissal dispute was referred to this Court in
terms of section 191(5)(b)(ii) of the LRA, and as such, the applicant simply
cannot challenge the procedural fairness of his dismissal in these
proceedings, by virtue of the application of section 189A(18) of the LRA. The
applicant never brought any application in terms of section 189A(13) to
challenge procedural fairness. As such, the applicant’s procedural fairness
challenge must fail, for the simple reason that this Court has no jurisdiction to
decide it.
Conclusion
[45] In conclusion, the applicant’s dismissal by the respondent for operational
requirements must be held to be substantively fair. Where it comes to
procedural fairness, the Labour Court has no jurisdiction to consider the
procedural fairness, the Labour Court has no jurisdiction to consider the
procedural fairness of the applicant’s dismissal by virtue of the application of
section 189A. The applicant’s claim thus falls to be dismissed.
35 2024 (5) SA 593 (CC) at para 146(b).
22
Costs
[46] Both parties were unrepresented. As such, the issue of costs does not arise.
In any event, and exercising the wide discretion I have in terms of section
162(1) of the LRA, I would consider it fair and appropriate that no order be
made as to costs in this instance.
[47] For all of the reasons as set out above, I make the following order:
Order
1. The applicant’s dismissal by the respondent is substantively fair.
2. The ‘Labour Court has no jurisdiction to entertain the applicant’s claim
relating to procedural unfairness.
3. The applicant’s claim is consequently dismissed.
4. There is no order as to costs.
____________________
S Snyman
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: In person
For the Respondent: Mr Vuyo Skaal – HR Manager