IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: 2026 - 0742667
In the matter between:
SASBO THE FINANCE UNION,
obo MEMBERS APPLICANTS
and
ACCESS BANK (SOUTH AFRICA) LIMITED RESPONDENT
And
Case No: 2026-074757
In the matter between:
CHAMAKE KAU & 20 OTHERS APPLICANTS
and
ACCESS BANK (SOUTHERN AFRICA) LIMITED RESPONDENT
Heard: 15 April 2026 (via Microsoft Teams)
Delivered: This judgment was handed down electronically by circulation to
the parties' legal representatives by email, and publication on
the Labour Court’s website. The date and time for the hand-
down is deemed to be on 9 May 2026
(1) Reportable: NO
(2) Of interest to other Judges: Yes
Signature Date
2
_____________________________________________________________________________
JUDGMENT
TLHOTLHALEMAJE, J
Introduction:
[1] Before the Court are two urgent applications brought separately in terms of
section 189A(13) read with section 189A(17) of the Labour Relations Act
(LRA)1. SASBO brought the first application under Case Number: 2026–
0742667 (The SASBO application) , whilst the second, under Case Number:
2026-074757 (The Kau application), was brought by non- unionised individual
applicants. For convenience, the Court will refer to both as ‘Applicants’.
[2] The applications arise from the same facts flowing from the retrenchment of
individual applicants by the Respondent (The Bank). The parties at the
commencement of the proceedings had consented to both matters being
heard together. The relief sought is for the Bank to reinstate the individual
applicants and to comply with procedural requirements under sections 189
and 189A of the LRA. In particular, it is sought that the Bank must continue a
meaningful joint consensus -seeking consultation process regarding
alternatives to dismissal , the selection criteria to be applied, and severance
pay.
The individual applicants before the Court:
[3] Flowing from the filing of the affidavit s, it transpired that the identity and
number of the individual applicants in the SASBO application, as listed in its
1 Act 66 of 1995 (as amended). Section 189A (13) provides:
‘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.’
3
Annexure ‘A’ to the founding affidavit , were incorrect. SASBO has, with the
leave of the Court , filed a Notice to Amend its Notice of Motion in terms of
Rule 20 of the Rules of this Court. In addition to removing some individuals,
SASBO has also added others who were not in the original list. At the end,
with these amendments to the Notice of Motion, the Court will accept that
SASBO represents 35 individual applicants as per its Amended Annexure ‘A’.
[4] With respect to the individual applicants in the ‘Kau application’, the Bank had
also disputed the standing of two of them, who it contended were not part of
the retrenchment process, as they were fixed- term contract employees . The
standing of these two individuals will be dealt with to the extent that the Court
deems it appropriate to grant some relief.
The background:
[5] At a meeting held on 4 November 2025, the Bank informed SASBO of its
intention to restructure for operational reasons, citing serious financial distress
and regulatory pressures from the Prudential Authority (A regulatory body
within the South African Reserve Bank ). The Bank also made a presentation
of a document titled “Right Sizing Strategy for Access Bank South Africa”.
[6] On 5 November 2025, the Bank issued SASBO with a notice in terms of
section 189(3) of the LRA 2 (The Notice) . The Notice is dated 4 November
2025 and sets out the reasons for the proposed retrenchments as indicated
above, including a high cost -to-income ratio and structural inefficiencies.
2 Section 189(3) provides:
“The employer must issue a written notice inviting the other consulting party to consult with it
and disclose in writing all relevant information, including, but not limited to-
(a) the reasons for the proposed dismissals;
(b) the alternatives that the employer considered before proposing the dismissals, and
the reasons for rejecting each of those alternatives;
(c) the number of employees likely to be affected and the job categories in which they
(c) the number of employees likely to be affected and the job categories in which they
are employed;
(d) the proposed method for selecting which employees to dismiss;
(e) the time when, or the period during which, the dismissals are likely to take effect;
(f) the severance pay proposed;
(g) any assistance that the employer proposes to offer to the employees likely to be
dismissed;
(h) the possibility of the future re-employment of the employees who are dismissed;
(i) the number of employees employed by the employer; and
(j) the number of employees that the employer has dismissed for reasons based on its
operation requirements in the preceding 12 months.”
4
Although the rationale for the retrenchments is not seriously disputed in both
of the Applicants’ papers, they contend that this was not an issue i n
determining the entire dispute between the parties or in the relief they sought
in their applications. The Notice also referred to the items for discussions and
consultations as set out under section 189(3) (a) – (j) of the LRA. Between 10
and 18 December 2025, similar notices were issued to the affected individual
employees and those in the ‘Kau application’.
[7] Section 189A(3), (4), and (5) of the LRA
3 enable consulting parties to request
facilitation under the CCMA. On 11 December 2025, SASBO completed the
relevant referral forms to request facilitation by the CCMA in terms of section
189A(3)(b) of the LRA. At the time that the request was made, the statutory
15 days contemplated in section 189A(7) within which such a request ought to
have been made had expired. The parties then, by agreement, made a joint
request to the CCMA for facilitation on 15 December 2025.
[8] On 6 January 2026, the Bank, following discussions with SASBO, issued
another section 189(3) Notice. It was envisaged that 150 employees would be
affected by the process. There is a dispute as to the effect of this second
Notice, and the issue will be dealt with further below.
3 The section provide;
(3) The Commission must appoint a facilitator in terms of any regulations made under
subsection (6) to assist the parties engaged in consultations if-
(a) the employer has in its notice in terms of section 189(3) requested
facilitation; or
(b) consulting parties representing the majority of employees whom the
employer contemplates dismissing have requested facilitation and have
notified the Commission within 15 days of the notice.
(4) This section does not prevent an agreement to appoint a facilitator in
circumstances not contemplated in subsection (3).(5) (6) (7) (8)
(5) If a facilitator is appointed in terms of subsection (3) or (4) the facilitation must be
(5) If a facilitator is appointed in terms of subsection (3) or (4) the facilitation must be
conducted in terms of any regulations made by the Minister under subsection (6)
for the conduct of such facilitations.
…
(7) If a facilitator is appointed in terms of subsection (3) or (4), and 60 days have
elapsed from the date on which notice was given in terms of section 189(3)-
(a) the employer may give notice to terminate the contracts of employment
in accordance with section 37(1) of the Basic Conditions of Employment
Act; and
(b) a registered trade union or the employees who have received notice of
termination may either-
(i) give notice of a strike in terms of section 64(1)(b) or (d); or
(ii) refer a dispute concerning whether there is a fair reason for
the dismissal to the Labour Court in terms of section 191(11).
5
[9] Three facilitat ed meetings took place in January and February 2026, along
with several unfacilitated meetings between them. The non -unionised
employees had elected representatives amongst themselves to represent
them at these meetings. The notices of termination were issued on 27
February 2026 to take effect at the end of March 20
The facilitated Meeting of 28 January 2026:
[10] The Facilitator had recorded the proceedings, which were devoted to the
Bank once again explaining its operational rationale through a presentation of
its ‘Rightsizing Strategy’. The Bank again outlined its financial position and
challenges, the need for organi sational restructuring, and the anticipated
number of affected employees.
[11] The applicants had requested information, inter alia , on audited financial
statements, management accounts, business strategy, organograms, and
affected positions. T he parties further agreed on a timeline for the disclosure
of information and the submission of questions and clarifications regarding the
information to be furnished. It was further agreed that future facilitation
meetings would take place on 9, 16, and 24 February 2026, with 2 March
2026 being a tentative date. Effectively, no substantive outc omes emerged
from the first facilitation meeting.
The Meeting of 9 February:
[12] At this facilitation meeting, the applicants complained that the Bank failed to
make full and timeous disclosure, and were thus unable to engage with the
issues in any meaningful manner . The Bank stated that it was unclear what
was outstanding, since it had disclosed all the requested information. Again,
no substantive agreement was reached. It is , however, common cause that
the parties had discussed issues regarding the disclosure of information,
organograms, selection criteria, strategic and financial matters, the clarity of
representatives' roles, and future communications and feedback to all
representatives' roles, and future communications and feedback to all
employees. The parties had agreed that the applicants would specify any
additional information they required, with deadlines agreed upon . They
further agreed to cancel the facilitation meeting scheduled for 16 February
6
2026, and the Facilitator had encouraged them to continue discussions
outside the facilitation process, pending the next facilitation meeting.
Unfacilitated consultation meetings:
[13] Between 11 and 20 February 2026, the parties held at least four consultations
on their own. Those meetings were agreed to form part of the facilitation
process4. On 11 February 2026, the parties discussed the information
provided by the Bank, to which the employees’ representatives continued to
object, alleging that it was insufficient. The Bank had further clarified the
restructured organisational chart and reporting lines. At the conclusion of the
meeting of 11 February 2026, the applicants continued to complain about the
insufficiency of the information disclosed. On 13 February 2026, the parties
met again. After the Bank clarified questions arising from the disclosed
information, they discussed the approach to the selection criteria and issues
surrounding the interviews to be conducted for the restructured positions.
On 17 February 2026, the parties discussed the affected roles and interviews
to be conducted. The employees had raised objections to the parallel
interviews underway during the consultation process . On 19 February 2026,
the discussions again focused on disclosure, the selection criteria and
alternatives to retrenchments . On 20 February 2026, they discussed
severance pay, with the Bank indicating it might improve its initial offer in that
regard despite its financial and regulatory constraints.
The facilitated meeting of 24 February 2026:
[14] At that meeting, the employees once again complained about insufficient
information, with t he Bank reiterating that all required information had been
disclosed. The Applicants had tabled questions regar ding incomplete
organograms, unclear reporting lines, and insufficient financial details. From
that meeting, it is common cause that, notwithstanding objections and
that meeting, it is common cause that, notwithstanding objections and
complaints regarding the non- disclosure of information, the parties had
4 Transcribed Record of Facilitation Proceedings; Lines 20-25 and page 002 – 299 - Caselines
7
discussed issues including severance pay, alternatives to retrenchments,
selection criteria, and bumping.
[15] At the end of the meeting, the applicants indicated that the discussions were
not finali sed or fully canvassed and proposed a fourth facilitation meeting,
which had previously been agreed to take place on 2 March 2026. The Bank
had indicated its intention to finalise the process by the end of February 2026.
At that point , the Facilitator had recorded her concerns regarding the
outstanding topics for discussion and further indicated that the 60- day period
only expired on 6 March 2026. The unresolved topics were selection criteria,
severance, and the mitigation of the impacts of retrenchments. The Facilitator
further recorded that, in her view, the facilitation process had been abandoned
to the extent that the Bank was not amenable to a further facilitated session.
[16] It is further common cause, however, that at the conclusion of the last
facilitated meeting, the Bank had offered to have further unfacilitated meetings
on three consecutive days between 25 and 27 February 2026. The applicants,
however, declined the offer, contending that they were unavailable on the
proposed date s. No fourth facilitated meeting took place. T he Bank
subsequently issued the notices of termination on 27 February 2026.
Urgency:
[17] The Bank had disputed that the applications before the Court were urgent.
Section 189A(17)
5 provides that an application under section 189A(13) must
be brought no later than 30 days after the employer has given notice of
termination. Following the termination notices issued on 27 February 2026,
the SASBO application was initiated on 26 March 2026, whilst the Kau
application was initiated on 29 March 2026.
[18] The basis of contesting urgency was that , notwithstanding the provisions of
section 189A(17) of the LRA, this did not imply that urgency was there for the
5 Section 189A (17) provides:
5 Section 189A (17) provides:
(a) An application in terms of subsection (13) must be brought not later than 30 days after
the employer has given notice to terminate the employee's services or, if notice is not
given, the date on which the employees are dismissed.
(b) The Labour Court may, on good cause shown condone a failure to comply with the time
limit mentioned in paragraph (a).’
8
asking, even if the applications were within 30 days. It was submitted that
those provisions merely prescribe the upper limit of the period within which
the application must be brought, but that the general principles relating to
urgent relief applied. To this end, the contention was that the Applicants ought
to have brought the application s at the earliest opportunity , i.e., immediately
after forming the view that the Bank had not followed a fair process , rather
than waiting a few days before the expiry of the 30 days.
[19] The Bank contended that the applicants failed to explain why the applications
could not be brought sooner , and, effectively, that the urgency claimed was
self-created, designed to exact maximum financial damage to the Bank by
extending the reinstatement period that SASBO seeks. To this end, it was
contended that the relief of reinstatement was not appropriate and that only
compensation ought to be considered.
[20] The applicants’ contention, on the other hand, was that applications under
section 189A(13) were sui generis , and that section 189A(17) of the LRA
created a statutory urgency regime that rendered applications launched within
30 days inherently urgent. The contention was further that, since the
applications were initiated within the 30- day time frames , nothing further was
required, as there was no discrete requirement that urgency be either pleaded
or established in such applications
6.
[21] To the extent that the applications were enrolled on the urgent roll, it follows
that ordinarily, the provisions of Rule 38 of the Rules of Court and the trite
legal principles on urgency find application. It is , however, acknowledged that
section 189A(13) creates a bespoke time- sensitive remedy for procedural
unfairness in large- scale retrenchments. Effectively, once an application is
initiated within the 30 days, the Court must assume jurisdiction and determine
it on an urgent basis.
it on an urgent basis.
[22] A further consideration, however, is that , arising from established principles
regarding urgency, it is trite that central to any urgent relief sought is the
expedition with which an applicant approached the Court to interdict or
6 In reliance on “Labour Court Manual”, Connie Prinsloo and Andre van Niekerk, at Page 35
9
prevent any harm 7. In Steenkamp and Others v Edcon Limited 8, although the
apex court was dealing with non- compliance with the 30 days , it was
emphasised that section 189A(13) of the LRA allows for the urgent
intervention of this Court to correct any such irregularities as and when they
arise, so that the integrity of the consultation process can be restored, and the
consultation process can be forced back on track. It was added, in reference
to other authorities , that intervention by the Court long after the process had
been completed was often economically prohibitive and practically impossible;
hence, an expedited approach to the Court was required to ensure that
procedural irregularities did not undermine or derail the consultation process
before it ended9.
[23] The above principles are apposite to the facts of this case, to the extent that
the applications were initiated almost four weeks after the notices of
termination were issued. Effectively, and as correctly pointed out on behalf of
the Bank, even if the applicants had approached the Court within the statutory
30-day time period and thus required urgent intervention of the Court, any
delay between the issuing of the notices of termination and the period since
terminations took effect, will in addition to other factors, be a factor when it
comes to any relief under section 189A(13) of the LRA , despite the
applications being treated as urgent. This is notwithstanding the fact that the
Court is obliged to determine the matter on an urgent basis.
The legal framework and factual evaluation:
[24] Section 188(1) of the LRA provides that a dismissal is unfair if the employer
fails to prove that it was procedurally and substantively fair . Within the context
of retrenchments, section 189(1) of the LRA provides that the employer
contemplating dismissal for operational requirements is obliged to consult with
7 See Valerie Collins t/a Waterkloof Farm v Bernickow NO and Another [2001] ZALC 223 (7
7 See Valerie Collins t/a Waterkloof Farm v Bernickow NO and Another [2001] ZALC 223 (7
December 2001) at para 8; Association of Mineworkers & Construction Union & others v Northam
Platinum Ltd & another (2016) 37 ILJ 2840 (LC) at para 26; Radebe and Others v Aurum Institute
7(C662/2023) [2023] ZALCCT 66; (2024) 45 ILJ 876 (LC) at para 20
8 (CCT29/18) [2019] ZACC 17; 2019 (7) BCLR 826 (CC); (2019) 40 ILJ 1731 (CC); [2019] 11 BLLR
1189 (CC); See also Edcon Ltd v Steenkamp and Others (JA125/2017) [2017] ZALAC 81; [2018] 3
BLLR 230 (LAC); (2018) 39 ILJ 531 (LAC) at para 46.1
9 At paras 52 - 54
10
the affected employees or their representatives. Section 189(2) of the LRA 10
requires the employer and other consulting parties to ‘engage in a meaningful
joint consensus-seeking process and attempt to reach consensus ’ on various
issues listed therein.
[25] Arising from Solidarity obo Members v Barloworld Equipment Southern Africa
and Other11 (Barloworld), the purpose of consultations is to seek consensus ,
and there is no requirement that the parties reach an agreement12. The Court
had further , with reference to other authorities, explained the concept of
“meaningful joint consensus-seeking process” to mean that;
“……for a consultation process to be meaningful, in the context of section
189, the employer must keep an open mind, disclose sufficient information
to enable consulting parties to make informed representations, and
seriously consider the representations. This entails that the employer is
obligated to furnish reasons for rejecting representations after careful
consideration. Approaching the consultation with a pre-determined
outcome and failure to provide reasons for rejecting representations will
render the consultation process not meaningful.”13
[26] Similar principles were set out in National Union of Metal Workers of South
Africa and Others v Aveng Trident Steel (a division of Aveng Africa (Pty) Ltd)
and Another 14 as follows;
10Which provides;
“The employer and the other consulting parties must in the consultation envisaged
subsections (1)and (3) engage in a meaningful joint consensus -seeking process and
attempt to reach consensus on-
(a) appropriate measures-
(i) to avoid the dismissals;
(ii) to minimise the number of dismissals;
(iii) to change the timing of the dismissals; and
(iv) to mitigate the adverse effects of the dismissals;
(b) the method for selecting the employees to be dismissed; and
(c) the severance pay for dismissed employees.
11 (CCT 102/21) [2022] ZACC 15; (2022) 43 ILJ 1757 (CC); [2022] 9 BLLR 779 (CC); 2023 (1) BCLR
11 (CCT 102/21) [2022] ZACC 15; (2022) 43 ILJ 1757 (CC); [2022] 9 BLLR 779 (CC); 2023 (1) BCLR
51 (CC) at paragraphs 39 - 46
12 At para 49
13 At para 46
14 (CCT178/19) [2020] ZACC 23; [2021] 1 BLLR 1 (CC); (2021) 42 ILJ 67 (CC) ; 2021 (2) BCLR 168
(CC); See also National Union of Metal Workers of South Africa and Others v Aveng Trident Steel (a
division of Aveng Africa (Pty) Ltd) and Another [2020] ZACC 23; [2021] 1 BLLR (CC); (2021) 42 ILJ 67
(CC); 2021 (2) BCLR 168 (CC) at para 40
11
‘Retrenchments should not be resorted to until “certain procedural
requirements intended to minimise the impact on employees” have been
complied with. When employers contemplate dismissing employees for
operational requirements, they must consult under section 189(1) of the
LRA. The nature of such a consultation process, including “its objective
and agenda”, is prescribed by section 189(2) of the LRA. This consultation
“requires engagement by all the consulting parties to reach consensus”. It
is important to note that the approach to this consultation must not merely
be a checklist approach – that is, it must not be purely formalistic. There is
both a procedural and substantive aspect to this consultation process. This
has been clarified by the Labour Appeal Court in Afrox where the Court
stated:
“It is implicit in the terms of section 189(2) that an employer, apart
from taking part in the formal consultations on the aspects set out
in the section, should also take substantive steps on his or her
own initiative to take appropriate measures to avoid the
dismissals; to minimise the number of dismissals; to change the
timing of the dismissals; to mitigate the adverse effects of the
dismissals; to select a fair and objective method for the dismissals
and to provide appropriate severance pay for dismissed
employees.”’
[27] Against the above legal approach, t he specific disputes are whether the
consultation process was procedurally fair as contemplated in sections 189
and 189A of the LRA . Specifically, the dispute surrounds whether the
consultation process and CCMA facilitation were abandoned in light of the 60
days under section 189A(7) of the LRA and the timing of the issuance of the
notices of termination; and whether there were meaningful consultations on
issues surrounding selection criteria, alternatives to retrenchment, and
severance pay.
[28] The applicants’ primary contentions were that the consultation process was
[28] The applicants’ primary contentions were that the consultation process was
fundamentally defective and that, at no stage, were the parties able to engage
meaningfully, since the Bank’s approach was to treat the process as a
formality. The Bank’s position was that the topics for consultation had been
12
fully canvassed and that the employees had made a concerted effort to
obstruct and delay the process rather than engage on the issues in good faith.
The 60 days contemplated in section 189A(7) of the LRA and the timing of the
notices of termination:
[29] The dispute related to which of the two Notices issued to SASBO triggered
the beginning and the expiry of the 60-day facilitation period contemplated in
section 189A (7) of the LRA. It will be recalled that the first Notice was issued
to SASBO on 5 Nove mber 2025, whilst the second was issued on 6 January
2026.
[30] From the background set out elsewhere in this judgment, certain
contradictions in the Bank’s contentions to the extent that it insisted that the
Notice of 6 January 2026 triggered the 60- day period need to be highlighted.
On its own pleaded case, the 60- day period expired as early as 6 February or
16 February 2026, depending on whether the Notices were issued to SASBO
or to individual employees. A second factor is that the Bank initially raised the
issue at the facilitated meeting of 9 February 2026 and during the unfacilitated
meetings between 11 and 19 February 2026. Notwithstanding, the parties had
agreed at the first facilitated meeting on 9 February 2026 that the facilitation
could extend into 2 March 2026. It is, however, a common cause that as of 24
February 2026, all the purported dates of the expiry of the 60 days had come
and gone.
[31] Against the above, the Bank’s bona fides in its contentions have to be
questioned to the extent that it had participated in either the facilitated or the
unfacilitated meetings, notwithstanding its stance that the 60- day period had
expired. Even more worrisome, notwithstanding its contentions, is that it had
issued a uniform termination notice to all affected employees, irrespective of
the dates on which the section 189(3) Notices were issued, individually or
collectively.
[32] The invariable conclusion to be reached in light of the above is that it is the
[32] The invariable conclusion to be reached in light of the above is that it is the
Notice of 6 January 2026 from which the 60- day period was triggered. Even if
the Bank may persist with its contentions, it is trite that the provisions of
13
section189A(3) and (4) ought to be read with those in 189A(5), to the extent
that there is a requirement under clause 6(1) of the Regulations 15, that a
facilitator must conduct up to four facilitation meetings with the parties, unless
the dispute is settled in a lesser number of meetings or the parties agree to a
lesser number of meetings. The dispute was neither settled nor was there
agreement on a reduced number of meetings, despite the parties jointly
requesting facilitation . In the end, the notice of termination issued on 27
February 2026 was precipit ate, and flouted both the provisions of section
189A(7) and Clause 6(1) of the Regulations.
Was the consultation/facilitation abandoned?
[33] The applicants’ contentions, on the other hand, that the Bank abandoned the
facilitation or consultation process cannot , however, be sustained. This is so
because the Facilitator noted in the facilitation record that unfacilitated
meetings were part of the facilitation process. The primary role of a facilitator
is to manage the consultation process, whilst the duty to consult remains
primarily with the employer, and not the facilitator.
[34] It is correct, as already concluded, that only three, rather than four, facilitated
meetings were held, and I have concluded on that procedural defect.
However, t he Facilitator’s view that the facilitation process was abandoned
does not, in my view, imply that the consultation process was itself
abandoned. This is so in that it was undisputed that, at the conclusion of the
third facilitated meeting, the Bank, notwithstanding its stance that the 60- day
period had expired, offered to hold three further consultation meetings. That
offer was rejected by the applicants for unclear reasons, aside from their
unavailability on the proposed dates. In my view, the Bank’s conduct in these
circumstances cannot be said to evince an abandonment of the consultation
process. In the end however, any procedural defects cannot lie in
process. In the end however, any procedural defects cannot lie in
abandonment, but instead in the process leading to terminations.
15 Regulations for the Conduct of' Facilitations in terms of Section 189a of the LRA; no. 25515 GG, 10
October 2003 no. r. 1445, 10 October 2003
14
Disclosure of information:
[35] The Court accepts that this issue was not specifically raised as a primary
dispute. It is, however, addressed to the extent that it affected the main issues
in dispute: the selection criteria, alternative s to retrenchment, and severance
pay. The applicants alleged that the Bank refused to disclose information
requested to enable meaningful consultations and engagements on the
issues. It will be recalled that the issue was raised throughout both facilitated
and unfacilitated meetings, with the Bank insisting that all necessary
information was disclosed. The applicants’ case was that the information
disclosed was superficial, lacking in detail, or effectively insufficient.
[36] The Bank’s stance was that it had disclosed sufficient and extensive
information required by the applicants since the first meeting of 4 November
2025, and that any allegations of non- disclosure arose from the applicants’
repeated requests for new and expanded disclosures despite set deadlines,
or from their failure to specify precisely what information was outstanding. The
Bank viewed the applicant ’s approach as merely a means of stalling
consultations through belated or imprecise requests. It further contended that
some of the financial information requested could not be disclosed due to
regulatory and sensitivity risks.
[37] Section 189(4)(a) provides that the provisions of S ection 16, read with the
changes required by the context, apply to the disclosure of information in
terms of this subsection. Where disputes persist regarding disclosure, Section
189(4)(b) permits an arbitrator or the Labour Court to decide whether or not
any information is relevant, with the onus being on the employer to prove that
any information that it has refused to disclose is not relevant for the purposes
for which it is sought.
[38] In this case, other than the Facilitator having directed a disclosure in the first
[38] In this case, other than the Facilitator having directed a disclosure in the first
facilitated meeting, there is no evidence to demonstrate that the applicants,
other than persisting with their complaints at every meeting, had ever
requested arbitration over the issue, let alone approach this Court on an
urgent basis under section 189A(13) of the LRA. In my view, if indeed the
15
alleged non- disclosure hampered any meaningful consultations, any other
concrete steps ought to have been taken by the applicants in that regard, and
long before 24 February 2026, in order to cure any alleged procedural defect .
The applicants’ decision not to take any steps in this regard and to continue
with its allegations of non- disclosure throughout was ill-advised, as it clearly
hampered efforts to engage seriously with the broader issues of consultation.
It therefore cannot be concluded that the Bank failed altogether to disclose
information sufficient to enable meaningful consultations.
Selection criteria:
[39] It was undisputed that the Bank had at all the meetings proposed and
presented its own selection criteria. In both applications, the complaint was
that consultations were deficient and not meaningful, and that the criteria were
merely formally communicated to them on 12 February 2024. They accused
the Bank of inconsistently applying the criteria across departments and of
deviating from LIFO principles and the retention of skills . They also accused
the Bank of relying on unverified performance appraisals and, in the process,
protected certain departments or incumbents without justification. They
contend that the Bank reached conclusions on the criteria without proper
engagement and continued conducting interviews during the consultations.
[40] The Bank’s position was that the consultations in this regard were sufficient
and legally compliant . It contended that on 19 January 2026, it had
communicated to all employees and the consulting parties the job profiles and
its proposals for the selection criteria. It contended that alternatives were
extensively canvassed, including voluntary severance packages, salary
reductions (which were not ideal), redeployments , and placements in new
structures. It contended that the proposed criteria included skills,
qualifications, experience, and business -critical competencies, in addition to
qualifications, experience, and business -critical competencies, in addition to
LIFO, where candidates were equally suitable. It contended that the
interviews held during the consultations were part of efforts to mitigate
dismissals through redeployment and to place employees in available
positions, and not conducted in bad faith.
16
[41] The Court accepts that from the parties’ various meetings, the applicants had
jointly proposed LIFO as the primary criterion, and that the selection should
avoid reliance on subjective performance assessments and redeployment.
They had further proposed that interviews be suspended until the criteria were
agreed upon..
[42] The employer’s obligations under sections 189 and 189A, required
transparency and responsiveness, and not necessarily to secure an
agreement. In view of the Bank’s engagements on the issue from the initial
stages of the consultations, there is no basis for any conclusion to be reached
that it failed to consult at all on the topic. The Court accepts that consultations
on selection criteria did occur and that a mere rejection of counter -proposals
does not equate to a failure to consult
[43] The applicants’ primary complaint appears to be more about the quality of
consultations and the outcome of the selection exercise, the timing of the
formalisation of the Bank’s criteria, and the conduct of interviews during the
consultation process. Of course , the latter issue gave rise to a reasonable
apprehension that the outcomes may have been predetermined. In effect , it
undermined confidence in the consultation process.
[44] It is, however, accepted that the interview process (competing for posts) is fair
if it was intended to avoid retrenchments rather than being part of the
selection criteria
16. It is further trite that in the absence of an agreement, an
employer may implement a selection criteri on that was fair and objective in
light of the alternatives properly considered 17. In this case, the Bank had
implemented criteria that included skills, qualifications, experience, and
business-critical requirements, together with LIFO, under which employees
were suitable in the absence of an agreement. It cannot , therefore, be said
that it failed to consult in good faith. Inasmuch as the timing of the interviews
that it failed to consult in good faith. Inasmuch as the timing of the interviews
might have been procedurally irregular, on the Bank’s version, they were
directed at redeployment and placement, rather than specifically identifying
16 SA Breweries (Pty) Ltd v Louw (2018) 39 ILJ 189 (LAC),
17 Regenesys Management (Pty) Ltd t/a Regenesys v Ilunga and Others (CCT 220/22) [2024] ZACC
8; 2024 (7) BCLR 901 (CC); [2024] 8 BLLR 777 (CC); (2024) 45 ILJ 1723 (CC); 2024 (5) SA 593 (CC)
at paragraphs 37 - 38
17
employees for retrenchment. Accordingly, these procedural flaws cannot be
said to be so deficient as to amount to a failure to consult.
Severance pay:
[45] In Regenesys18, the Court specifically held that severance pay is a mandatory
topic for consultation and is intended to mitigate the adverse effects of
retrenchment. The topic must address the quantum, whether the severance
can and should exceed the statutory minimum, taking into account the
employer’s ability, which should also be the subject of engagements. The
Court had added that consultations in that regard must be genuine without the
outcomes being pre-determined, and further that although no agreement was
required, the failure of real engagements on the topic attracted remedies
under section 189A(13) of the LRA.
[46] The applicants complained that the consultations in this regard were irregular
and inadequate, and that the Bank essentially treated them as fait accompli.
In this regard, they contended that only off -the-record discussions were held
internally, thus undermining transparency and accountability . They
complained that there was no formal proposal from the Bank; that no clear
revised proposals were tabled on record at the facilitation meeting; and that
the Bank’s proposal was fixed and non-negotiable, despite other alternatives,
such as enhanced severance, phased payments, or differentiated treatment,
being available for exploration.
[47] From the record and the pleadings, the Court accepts that proposals
regarding severance pay were initially made in the section 189(3) Notices,
and that at the facilitated meeting of 9 February 2026, applicants sought that
the topic be deferred whilst they continued to raise concerns surrounding the
ongoing interviews. The topic was discussed at the unfacilitated meetings
held between 11 and 19 February 2026. At the unfacilitated meeting held on
20 February 2026, the topic was discussed again, albeit off the record. At
20 February 2026, the topic was discussed again, albeit off the record. At
those discussions, it is undisputed that the Bank had tabled an improved
package, further submitting that the improvement was made within its
18 At paragraphs 72 -76
18
financial constraints and expressing a willingness to enhance its offer beyond
the statutory minimum. It contends that the improved offer was rejected.
[48] It was therefore not in dispute that, even though the topic was discussed at
various unfacilitated meetings and at the facilitated meeting of 24 February
2026, those discussions were off the record, with no concrete proposals or
counter-proposals recorded. The Bank had justified the off -the-record
discussions as due to the sensitivity of the topic, noting that they involved
direct financial concessions beyond the statutory minimum and were intended
solely to enable frank discussions and the exploration of various options.
[49] The Court accepts that severance pay was one of the topics set out in the
Notice, and some level of discussions took place in that regard. The enquiry ,
however, is whether those discussions met the standard of meaningful joint
seeking engagement.
[50] Those discussions were mainly held on an off -the-record basis and were not
openly canvassed at the facilitation meeting. It is further accepted that other
than in the Notice and other general communications between the parties or
directly from the Bank to the employees, no other written proposals or counter
proposals or recorded responses were placed on record. Clearly , there was
no coherent engagement on the quantum, structure or implementation of
severance pay. The Bank’s contention that discussions in this regard were
sensitive or financially delicate could not trump transparency . Clearly, the
capacity to influence the outcome was sacrificed, irrespective of whether the
Bank had made an offer to improve the package. In the end, the consultation
process fell short of the procedural standards set out in sections 189 and
189A of the LRA, as reinforced in Regenyses.
[51] Equally unsustainable is the Bank’s further assertion that any consultations in
that regard were overtaken by the expiry of the 60- day period or by the
that regard were overtaken by the expiry of the 60- day period or by the
exigencies of time to finalise the process. This is so given the Court’s
conclusions on the issue of the 60 days , and its view that time considerations
to finalise the consultation process cannot, by any stretch of imagination,
excuse an employer from its statutory obligations. The invariable conclusion
19
to be reached is that the Bank failed to meaningfully consult on the topic as
required in the LRA, which constituted a material procedural irregularity , and
which calls for relief under section 189A(13 of the LRA.
Alternatives and measures to avoid retrenchments:
[52] Because of the no-fault nature of dismissals in retrenchments, the employer is
obligated to treat such measures as a last resort 19. This requires that the
employer consult with the other parties in good faith on all proposals made
and exhaust all viable, reasonable alternatives proposed during consultations.
A failure by the employer to do so will result in unfairness 20. Under section
189(6)(a) of the LRA, the employer is obliged to consider and respond to the
other consulting party’s representations, and to state the reason for
disagreeing if it does so.
[53] The applicants ’ primary complaints were that the consultations regarding
alternatives were incomplete and superficial, as the Bank had predetermined
the outcome without seriously considering any alternatives. They alleged that
their proposals included redeployment across departments, temporary or
fixed-term consulting roles in specific units, salary adjustments, temporary
containment measures, and deferral of retrenchments pending the completion
of critical projects. The applicants further contend that their proposals were
not responded to in writing, and that individual applicants were dismissed
without any reasons being provided. They also complained that interviews
and placements were conducted in parallel during consultations, sugges ting
that outcomes on the topic were predetermined.
[54] The Bank’s position was that alternatives were extensively canvassed
inclusive of voluntary severance packages (which were accepted by few
employees), redeployment and placements (which was done flowing from the
interviews) and consideration of implementation of salary deductions (which
interviews) and consideration of implementation of salary deductions (which
were not ideal as they required 50% to meet sustainability of capital and
19 Oosthuizen v Telkom SA Ltd [2007] 11 BLLR 1013 (LAC)
20 South African Commercial, Catering and Allied Workers Union and Others v Woolworths (Pty)
Limited (CCT275/17) [2018] ZACC 44; (2019) 40 ILJ 87 (CC) ; 2019 (3) BCLR 412 (CC); [2019] 4
BLLR 323 (CC); 2019 (3) SA 362 (CC)
20
regulatory requirements) , and ultimate removal of certain number of
employees on the original list of affected employees. It contends that the
applicants rejected any alternatives it had proposed without explanation, and
accused them of belatedly making proposals that, in most instances, were not
commercially or operationally viable, or were inconsistent with its new
operating model, or were impractical given its own regulatory pressures.
[55] From the pleadings, I did not understand the applicants’ case to be that
alternatives and measures to avoid retrenchments were not discussed in
either the facilitated or unfacilitated meetings. The Court accepts that the
qualitative nature of consultations cannot be determined solely by the number
of meetings held. The dispute ultimately concerns the quality and sufficiency
of the consultations, not that consultations were not held or that there was a
total lack of engagement on any of these issues. Thus, the ultimate enquiry
regarding this topic is not whether there was merely an exchange of proposals
and counter -proposals between the parties. It is whether the Bank had
consulted meaningfully and in good faith on the alternatives before
implementing the dismissals of the individual applicants.
[56] It would be recalled that , when the section 189(3) Notices were issued and
during the first facilitated meeting, the Bank had consistently outlined its
proposals and invited the applicants to consult on those issues. From the
pleadings, it is accepted that the applicants had made written submissions
and proposals and equally raised a variety of objections on the topics. This
took the form of emails, letters, and memoranda, without any consolidated,
formal written counter-proposals that could be accepted or rejected.
[57] It is trite that more than mere allegations are required to establish that the
employer’s engagement on consultation topics was perfunctory. In National
Union of Mineworkers v Anglo American Platinum Ltd and Others
Union of Mineworkers v Anglo American Platinum Ltd and Others
21, it was
held that, generally, employees cannot claim unfairness in retrenchments
solely on the basis that the employer rejected their counter-proposals.
21 [2013] ZALCJHB 262; (2014) 35 ILJ 1024 (LC); [2013] 12 BLLR 1253 (LC) at para 24.
21
[58] The Court accepts that the Bank’s responses to counter -proposals were not
always formalised in writing or structured. This , however, does not evince
wholesale failures to engage. Equally accepted is that the parallel process of
redeployment and interviews reasonably raised perceptions of predetermined
outcomes and undermined confidence in the consultation process. It is,
however, accepted that these measures are considered fair if they are
demonstrably aimed at avoiding retrenchments. This approach was endorsed
in National Union of Metal Workers of South Africa and Others v Aveng
Trident Steel (a division of Aveng Africa (Pty) Ltd) and Another
22, with
reference to Afrox. Thus, the Bank was entitled to take substantive steps and
appropriate measures on its own initiative to avoid dismissals and minimise
the number of dismissals.
[59] These being motion proceedings, and even on the application of the Plascon -
Evans23 principles, the Court accepts that consultations were indeed held
between the parties on alternatives and measures to avoid retrenchments.
The record reflects that the Bank had consistentl y articulated its operational
rationale, financial constraints and regulatory obligations as primary reasons
for rejecting counter -proposals, albeit the responses were unstructured. The
rejection of the counter -proposals did not render the consultation process
procedurally unfair.
[60] In the end, and having regard to the totality of the evidence, the Court is
satisfied that consultations on alternatives and measures to avoid
retrenchments did take place as contemplated in section 189(2)(a) of the
LRA, which measures in the end led to the reduction of the number of the
original number of employees contemplated to be affected by restructuring.
Any procedural shortcoming in the manner in which the Bank responded to
the counter -proposals does not imply a complete absence of engagement
with alternatives or measures to avoid retrenchments.
22 supra
with alternatives or measures to avoid retrenchments.
22 supra
23 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984(3) SA 623 (A
22
Summary and any relief:
[61] The essential conclusions reached in this judgment are that indeed the
applications ought to be treated as urgent. The Bank had, however, regarding
the facilitation process, not complied with the provisions of section 189A(7) of
the LRA to the extent that the notices of termination were issued in haste and
before the expiry of the 60 days , and further to the extent that there was non -
compliance with the provisions of Regulation 6(1) of the Regulations.
[62] The Court accepts that the Bank had complied with its obligations to disclose
the relevant information for meaningful consultations, and had engaged with
and consulted the applicants on the selection criteria, alternatives, and
measures to avoid retrenchments. The Bank , however, failed to engage
meaningfully with the applicants regarding severance pay. Other than the
procedural flaws pointed out, on a holistic level, they do not lead to the
conclusion that the Bank totally failed to discharge its obligations under
sections 189 and 189A of the LRA. H owever, the limited procedural flaws call
for some relief.
[63] Elsewhere in this judgment, it was pointed out that, flowing from Steenkamp24,
section 189A(13) of the LRA is designed to allow this Court to intervene
before or during the consultation process to cure any procedural defects in
real time, and that once a dismissal has taken place, restorative relief may
become impractical or economically disruptive. In Regenyses 25, it was held
that the object of section 189A(13) is corrective, restorative, and discretionary,
rather than compensatory in a delictual or contractual sense. Those
provisions, however, are not meant for this Court to micromanage employers’
restructuring.
[64] It was added in Regenyses that this Court enjoys a wide discretion when
determining a remedy under section 189A(13), to be exercised judicially and
proportionately, taking into account a variety of considerations such as
proportionately, taking into account a variety of considerations such as
legitimate managerial prerogatives, the nature of the procedural defects, the
24 At paragraphs 52-54
25 At paragraphs 72 - 76
23
point in consultations when the defect occurred, whether the defects are
capable of being cured, and the harm caused by the defect.
[65] In this case, it has already been indicated under the topic of urgency that the
applicants' lack of haste in approaching the Court after the notices of
termination were issued was a factor to be taken into account when
determining relief. Effectively, the applicants did not do themselves any
favours by being supine until just before the expiry of the 30 days
contemplated in section 189A(17) of the LRA.
[66] In addition, the termination notices took effect on 1 March 2026. In light of the
procedural defects highlighted in this judgment, these are not of such a nature
that they caused any harm to the applicants to call for restoration to cure
them. The dismissals have taken effect , and the process has concluded.
(Bearing in mind that the applicants rejected three further days for
consultations). In these circumstances, restorative orders compelling further
consultations are not appropriate. It follows that the only remedy available to
the applicants is compensation, which, in accordance with Regenyses , will
serve to vindicate the right to a fair procedure, and not to penalise the Bank or
second-guess its operational rationale.
[67] Accordingly, in the light of the procedural defects highlighted and which are
not egregious, the applicants’ own lack of haste in approaching the Court for
intervention, their persistence during consultations in unreasonably
complaining about disclosure and or seeking it on a fragmented basis, the
Bank’s mitigation efforts, and its lack of bad faith, it is deemed that one
month’s salary to each of the individual applicants is appropriate.
[68] Regarding two individuals in the Kau application, viz., Ms Emily Jiyane and
Ms Busiwa Ngcobo, the Bank contended that they were employed on fixed-
term contracts that expired by effluxion of time and were thus neither
term contracts that expired by effluxion of time and were thus neither
dismissed nor affected by the section 189A process. In this regard, reference
was made to copies of their individual contracts of employment annexed to
the answering affidavit, which reflected their defined periods, had clear
termination dates, and contained no provision for automatic renewal.
24
Furthermore, no notices of termination were issued to them nor were they
identified in the section 189(3) Notices.
[69] The submissions made in the Kau application were that there was a link
between non- renewal and restructuring, and that the Bank merely relied on
substance over form, as the fixed- term label was not determinative. It was
added that the concerned individual applicants also had a reasonable
expectation of a renewal, and that excluding them from the consultation
process undermined the fairness of the overall section 189 process.
[70] It is trite that a fixed- term contract terminates either by effluxion of time or by
an occurrence, such as the completion of a task or project. The termination
does not require any notice as it is automatic. This implies that in such
instances, there can be no dismissal as contemplated under section 186(1) of
the LRA. The exception, of course, would be where the contract specifies that
the employee may be retrenched before its expiry date.
[71] The submissions made in the Kau application that the two individual
applicants had a reasonable expectation of the continuation of their contracts
of employment are misplaced, especially for the purposes of relief under
section 189A(13) of the LRA. A dispute about a reasonable expectation of a
fixed-term contract falls within the ambit of section 186(1)(b)(i) or (ii) of the
LRA, which is ordinarily arbitrable under section 191 (5)(a)(iii) of the LRA . As
of 27 February 2026, the fixed- term contracts of the t wo individuals were due
to expire, and there is therefore no basis for them to have been covered under
the section 189A process for any relief.
Costs:
[72] The Court , further having regard to the nature of the applications and the
conclusions reached in this judgment, further deems i t appropriate, upon a
consideration of law and fairness, to order that each party be burdened with
its own costs.
[73] Accordingly, the following order is made;
25
Order:
1. The application to amend the Notice of Motion under Case No: 2026 –
074266 is granted.
2. The non-compliance with the Rules of this Court in respect of the time
frames in both applications under case Numbers: 2026 - 0742667 and
2026-074757 is condoned, and the applications are heard as urgent in
accordance with Rule 38 of the Rules of this Court.
3. The applications under both Case numbers for relief under section
189A(13)(a), (b) and (c) of the Labour Relations Act (LRA) are
dismissed, and relief is only to be granted under section 189A(13)(d)
of the LRA.
4. The Respondent is ordered to pay to each of the individual applicants
identified in the Amended Annexure “A” to the SASBO’s Notice of
Motion under Case No: 2026- 072667, compensation equal to one
month’s salary, calculated at their rate of remuneration as at 27
February 2026.
5. The Respondent is ordered to pay each of the individual applicants
listed in Annexure ‘CK1’ to the founding affidavit under Case No. 2026
– 074757, compensation equal to one month’s salary calculated at
their rate of remuneration as at 27 February 2026.
6. The individual applicants listed at 6 and 12 in Annexure ‘CK1’ to the
founding affidavit under Case No: 2026 – 074757, viz, Ms Emily
Jiyane and Ms Busiwa Ngcobo, are not entitled to any relief.
7. There is no order as to costs.
___________________
Edwin Tlhotlhalemaje
Judge of the Labour Court of South Africa
26
Appearances
Under Case No: 2026-072667.
For the Applicants: Advocate G. Fourie SC , instructed
by BJ Erasmus Pieterse Attorneys
For the Respondent: Adv. A Redding SC, instructed by Solomon
Holmes Attorneys Incorporated.
Under Case No: 2026-074757
For the Applicants: Mr B Luthuli of Bongani Khanyile Ka
Luthuli Attorneys Inc
For the Respondent: Adv. A Redding SC, instructed by Solomon
Holmes Attorneys Incorporated.