THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JS 466/2023
In the matter between:
GERHARDUS STEFANUS GORDON BOTHMA Plaintiff
and
PETRA DIAMONDS SOUTHERN AFRICA (PTY) LTD Defendant
Heard: 20-24 October and 24 November 2025
Delivered: 15 May 2026
Automatically unfair dismissal and unfair discrimination - not established - race not
shown to be the dominant cause of dismissal - lack of tertiary qualifications not an
analogous ground on these facts - operational requirements dismissal - no genuine
joint consensus-seeking process and unfair selection criteria - dismissal procedurally
and substantively unfair.
JUDGMENT
(1) Reportable: Yes
(2) Of interest to other Judges: Yes
(3) Revised
____________ ______________
Signature 15/05/2026
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HARVEY AJ
[1] This case concerns claims of automatically unfair dismissal, unfair
discrimination, and, in the alternative, unfair retrenchment , brought by an
employee who, despite years of advancement and senior responsibility, was
excluded from a restructured organisation because he lacked formal
qualifications that had been newly introduced as a requirement.
Preliminary rulings
[2] Two preliminary issues required determination at the outset. Both were dealt
with ex tempore at the commencement of the hearing.
Jurisdiction
[3] The Court’s jurisdiction was challenged because the employee described the
dispute as a dismissal motivated by discrimination, whereas , on the CCMA
referral form, it was categorised as a ‘ dismissal dispute – operational
requirements (single employee) ’. The employee testified clearly that the issue
of discrimination was raised and discussed at the conciliation, that the
conciliating commissioner recognised the matter as one involving potential
automatic unfairness, and that a senior commissioner was called in to assist.
The employer’s version in oral evidence on this aspect was vague.
[4] On that evidence, the Court was satisfied that the dispute conciliated by the
CCMA was a n operational-requirements dismissal alleged to have been
discriminatory. A dismissal alleged to have been on a discriminatory ground, if
proved, constitutes both an automatically unfair dismissal under section
187(1)(f) of the Labour Relations Act 66 of 1995 and unfair discrimination under
section 6(1) of the Employment Equity Act 55 of 1998, thereby potentially giving
rise to both causes of action. The referral, therefore, met the statutory
preconditions of both Acts, and the Court found that it had jurisdiction to
determine both claims.
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Condonation
[5] The employer raised another preliminary issue concerning compliance with the
90-day period prescribed for referral to this Court following the issue of the
certificate of outcome. The statement of claim was emailed to the Labour Court
within the 90-day period, but the hard copy was physically delivered only 7 days
later. The employer contended that the referral was out of time and that the
Court lacked jurisdiction, absent condonation. The employee’s representative
explained that the referral was made in good faith reliance on the Labour Court
Directive of 2022 permitting electronic filing, and that the hard copy was
delivered later only as a matter of administrative convenience. No prejudice to
the employer was claimed. At the hearing, the employer indicated that it would
not oppose condonation, and the Court , being of the view that the delay was
short, the explanation satisfactory, and the prejudice minimal, granted
condonation for the late filing of the statement of claim.
Background facts
[6] The employee commenced employment with the employer in 2016 as a Group
Procurement Practitioner. He was appointed on the strength of his many years
of experience in procurement and supply chain management, despite having no
formal tertiary qualifications. In December 2020, following a recruitment
process, he was promoted to Group Supply Chain Manager, a more senior role
with group-wide responsibilities.
[7] Approximately four months later, the employee was informed by the employer’s
Chief Financial Officer that concerns had been raised regarding his
appointment. These concerns included his lack of formal tertiary qualifications
and that the position ought to be filled by a BEE candidate. The employee
accepted placement in the lower position of Procurement Coordinator, a post
created for him, and agreed to continue acting as Group Supply Chain Manager
until a permanent BEE appointment to that position was made.
until a permanent BEE appointment to that position was made.
[8] Ms Mahadew was appointed as Group Supply Chain Manager in December
2021. She became the employee’s direct line manager, with responsibility to
oversee the supply chain function.
4
[9] About six months later, in June 2022, Ms Mahadew presented a proposed new
organisational structure within the supply chain department. The presentation
described the employee’s position, Procurement Coordinator, as ‘obsolete role
and over-complement – yet open to apply for all roles’.
[10] The employee was informed that positions on the new structure would be
advertised and that he could apply for them. He applied for the position of
Manager: Procurement, a position which he contended was substantially
identical to the Procurement Coordinator role he occupied. A lthough he was
short-listed and interviewed, he was not appointed. The appointee was Mr
Pistorius, a white male who possessed the academic qualifications stipulated
as one of the requirements for appointment to the position.
[11] Shortly thereafter, in August 2022, the employee lodged a formal grievance
concerning his treatment and the restructuring process. The grievance was
investigated by an external party, and a report was produced. Certain
recommendations were made, but these were not implemented. The employee
did not pursue the grievance further.
[12] In September 2022, the employee attended an interview for another position,
that of Specialist: Project Procurement . Again, tertiary qualifications were
stipulated as requirements for appointment to the position and, again, he was
unsuccessful. The employee was thereafter encouraged to apply for the lower-
level Buyer position, which he declined because it was an entry-level role.
[13] During November 2022 and again in March 2023, the employer engaged the
employee in discussions regarding a possible mutual separation agreement.
The employee did not accept the employer’s proposals in this regard.
[14] On 24 March 2023, the employer issued a notice in terms of section 189(3) of
the Labour Relations Act, identifying the employee as the only employee
potentially affected by a contemplated retrenchment. No further formal
potentially affected by a contemplated retrenchment. No further formal
consultation meetings took place thereafter.
[15] The employee’s employment was terminated with effect from 1 May 2023.
[16] The employee led evidence concerning the financial and personal impact of his
dismissal. Since his dismissal, he has worked as a consultant, earning a gross
5
monthly income of R70,000, substantially less than the R99,608.83 he earned
whilst employed. Although he said that he had willingly stepped aside in favour
of a BEE candidate in 202 1 because he understood the employer’s
transformation imperatives, he later felt humiliated when his role was presented
as obsolete, and he felt that he was stripped of authority in front of his
colleagues. He regarded the subsequent suggestion that he apply for the Buyer
role as an insult to his capabilities and a regression in his career path.
Claims
[17] The employee advances three claims arising from the termination of his
employment, namely:
17.1 that his dismissal was automatically unfair in that it was for a
discriminatory reason as contemplated in section 187(1)(f) of the Labour
Relations Act;
1
17.2 that his dismissal for operational requirements was , in any event, and in
the alternative, procedurally and substantively unfair; and
17.3 that the employer’s conduct amounted to unfair discrimination in terms of
section 6 of the Employment Equity Act.2
[18] The remedies sought are:
18.1 In respect of the automatically unfair dismissal, c ompensation in an
amount of up to 24 months’ remuneration;3
18.2 In respect of the alternative unfair dismissal claim, compensation in the
amount of up to 12 months’ remuneration;4 and
18.3 In respect of the unfair discrimination claim, a solatium , and/or patrimonial
damages of R9,554,504.19.5
1 Labour Relations Act 66 of 1995 (hereinafter ‘LRA’).
2 Employment Equity Act 55 of 1998 (hereinafter ‘EEA’).
3 Section 194(3) of the LRA.
4 Section 194(1) of the LRA.
5 Section 50(2) of the EEA. The patrimonial damages were calculated as follows: the gross earnings
shortfall of R29,608.83 per month (R99,608.83-R70,000) multiplied by the 193 months remaining until
6
Issues
[19] The employee’s claims raise distinct legal enquiries, each with its own
requirements and onus. It is necessary to consider them separately in order to
avoid conflating the question of whether the dismissal was for a prohibited
reason with the question of whether the employer has established the fairness
of the operational requirements dismissal, and with the further question of
whether the employee has established unfair discrimination under the EEA.
[20] I shall accordingly determine the issues in the following sequence:
20.1 First, whether the evidence establishes that the employee’s dismissal was
automatically unfair, in that the reason for the dismissal was his race or,
alternatively, the alleged arbitrary ground of a lack of formal qualifications.
20.2 Second, if the dismissal was not for a prohibited reason, whether the
employer has proved that the employee’s dismissal for operational
requirements was procedurally and substantively fair.
20.3 Third, whether the employer ’s conduct constituted unfair discrimination in
terms of section 6 of the EEA on the grounds of race or the alleged
arbitrary ground of a lack of qualifications.
20.4 Finally, in light of the findings, what relief, if any, is appropriate.
[21] Each of these issues is considered in turn. The evidence is addressed only to
the extent necessary to determine the particular issue under consideration.
[22] But first, the law:
Law
Automatically unfair dismissal – s187(1)(f) of the LRA
[23] A dismissal is automatically unfair if the reason for the dismissal is that the
employer discriminated against the employee on any arbitrary ground, including
race.
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his retirement age (total R5,714,504.19) plus an annual bonus of R240,000 per annum for 16 years
(R3,840,000).
6 Section 187(1)(f) of the LRA.
7
[24] An ‘arbitrary ground’, for purposes of section 187(1)(f) , must be shown to be
based on attributes or characteristics that have the potential to impair a
person’s fundamental human dignity in a manner comparable to the listed
grounds.7
[25] The employee must raise a ‘credible possibility ’ that the dismissal was for a
prohibited or discriminatory reason. 8 If that is established, the employer bears
the onus to show that the dismissal was for a different or non- discriminatory
reason, alternatively that it was based on an inherent requirement of the job. 9
Where more than one factor may have played a role, the Court must determine
the dominant or most likely cause of the dismissal.
10
Unfair Dismissal for Operational Requirements
[26] The employer bears the onus of establishing that a dismissal for operational
requirements was both procedurally and substantively fair.
11
[27] Procedural fairness requires the employer to engage in a meaningful joint
consensus-seeking process with the affected employee as soon as a possible
dismissal is contemplated. That consultation process must be genuine and
directed at avoiding dismissal, minimising the number of dismissals, and
mitigating the adverse consequences of any dismissal.
[28] Substantive fairness requires the employer to demonstrate a rational , fair, and
objective operational rationale for the dismissal , and that its implementation
was fair. This includes the obligation to apply fair and objective selection criteria
and to consider alternatives to dismissal, including placing employees in
suitable alternative positions where reasonably possible.
7 See New Way Motor & Diesel Engineering (Pty) Ltd v Marsland [2009] 12 BLLR 1181 (LAC) at 25
where the Court, referring to the test in Harksen v Lane NO 1997 (11) BCLR 1489, held that, in
determining whether the reason for a dismissal was that the employer unfairly discriminated against
the employee on an arbitrary ground, the question is ‘did the conduct of the appellant objectively
analysed on the ground of the characteristics of the respondent, in this case depression, have the
potential to impair the fundamental human dignity of respondent?’
8 Kroukam v SA Airlink (Pty) Ltd [2005] 12 BLLR 1172 (LAC) para 28.
9 Section 187(2)(a) of the LRA.
10 Kroukam v SA Airlink (note 8 above) para 29.
11 Section 192(2) of the LRA.
8
Unfair discrimination (ss 6 and 10 of the EEA)
[29] Section 6 of the E EA prohibits unfair discrimination on several listed grounds,
including race, and on ‘any other arbitrary ground’.
[30] Where discrimination on a listed ground is alleged, the employer must prove
that the discrimination did not occur, or that it was rational and not unfair , or
that it is otherwise justifiable.12
[31] Where unfair discrimination is alleged on an arbitrary ground, the employee
must prove differentiation on the ground alleged, that the conduct complained
of is not rational, that it amounts to discrimination, and that the discrimination is
unfair.13 In order to qualify as an arbitrary ground, the court must be satisfied
that the ground is analogous to a listed ground of discrimination, in the sense
that it is based on attributes that are immutable or difficult to change, or that
give rise to patterns of disadvantage that impair human dignity in a comparable
manner to the listed grounds.
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Automatically unfair dismissal
[32] The employee contends that his dismissal was automatically unfair because it
was based on his race and/or on the arbitrary ground of his lack of formal
qualifications.
Race
[33] The employee relies principally on events preceding the 2022 restructuring, in
particular, his removal in 2021 from the position of Group Supply Chain
Manager after he was informed that there was unhappiness with his
appointment because he was a white male without tertiary qualifications.
[34] The employee testified that he agreed to the 2021 demotion to the Procurement
Coordinator position because he understood the employer’s BEE imperatives
and that he accepted the lower appointment in good faith. His case, however,
12 Section 11(1) of the EEA.
13 Section 11(2) of the EEA.
14 Naidoo and Others v Parliament of the Republic of South Africa (CA4/2019) [2020] ZALAC 38;
(2020) 41 (ILJ) 1931 (LAC); [2020] 10 BLLR 1009 (LAC) (7 May 2020) at 20-27.
9
was that the race- based differentiation inherent in that earlier decision
ultimately placed him in the position from which he was later retrenched. Put
differently, had he not been moved into the Procurement Coordinator role in
2021, he would not have occupied the position later identified as ‘obsolete and
over-complement’. On that basis, he contended that the discriminatory
demotion formed part of the causal chain of events leading to his dismissal.
[35] The employee accordingly contended that his race was causally connected to
his eventual dismissal , notwithstanding the subsequent restructuring. The
enquiry before the Court is whether the employee has established that race
was the dominant or most likely reason for his dismissal in May 2023.
[36] In my view, he has not done so.
[37] Following the events of 2021, the employee remained employed in the
Procurement Coordinator role for more than a year before the restructuring
process commenced in June 2022. The restructuring involved introducing a
new organisational structure and creating new positions for which affected
employees were required to apply. The evidence does not establish that race
played any role in that restructuring process or in the subsequent appointment
decisions. The position of Manager: Procurement was ultimately filled by a
white male candidate. The employee accepted in cross -examination that race
did not influence the decision not to appoint him to positions in the new
structure.
[38] In those circumstances, while the earlier events formed part of the factual
background to the employee’s eventual dismissal, the later restructuring
process constituted a materially independent operational process involving
fresh decision-making unrelated to the employee’s race.
[39] I accept that, but for the earlier demotion, t he employee would not have
occupied the position from which he was later retrenched. But that is insufficient
to establish legal causation; the evidence does not establish that his race was
to establish legal causation; the evidence does not establish that his race was
the proximate, operative, or dominant cause of the dismissal itself.
[40] The employee has therefore not established that his dismissal was
automatically unfair in that the reason for the dismissal was his race.
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Lack of qualifications as an arbitrary ground
[41] It is common cause that the employee had no formal tertiary qualifications and
that the positions created in the new structure stipulated such qualifications as
a minimum requirement. The employee was shortlisted and interviewed for two
of those positions, but was not appointed.
[42] The employee contends that his exclusion on the basis of his lack of
qualifications constitutes discrimination on an arbitrary ground. For an unlisted
ground to fall within the scope of section 187(1)(f), it must be shown to be
analogous to the listed grounds, in that it is based on attributes or
characteristics that are immutable, difficult to change, or that otherwise impair
human dignity in a comparably serious manner.
[43] On the facts of this case, I am not satisfied that the employee’s lack of tertiary
qualifications meets that threshold. The employee testified that he did not
pursue tertiary studies after school because of financial constraints. Despite
this, he progressed over several years into increasingly senior and well -
remunerated positions in supply chain management, including within the
employer’s organisation, despite his lack of formal qualifications. There was no
evidence that he remained unable to obtain further qualifications during that
period. This is also not a case in which the employee’s lack of tertiary
qualifications was shown to arise from systemic exclusion or disadvantage of
the kind historically associated with apartheid-era racial discrimination.
[44] In these circumstances , I find that the employee’s lack of tertiary qualifications
did not, on the evidence before the Court, constitute an immutable attribute or
characteristic analogous to the listed grounds in section 187(1)(f). It follows
that reliance on this ground cannot sustain a claim of automatically unfair
dismissal.
Conclusion
[45] The employee has not established that his dismissal was for a reason
Conclusion
[45] The employee has not established that his dismissal was for a reason
prohibited by section 187(1)(f) of the LRA. The dominant cause of dismissal
was not his race, and to the extent that his non-appointment was due to his lack
11
of tertiary qualifications, this has not been shown to be an analogous ground.
The claim of automatically unfair dismissal must accordingly fail.
Operational requirements dismissal
Procedural fairness
[46] Procedural fairness in dismissals for operational requirements requires that the
employer engage the employee in a meaningful joint consensus -seeking
process, as soon as dismissal is contemplated. As the LAC held in SACTWU v
Discreto,15 consultation is not a formality . It is aimed at influencing the
outcome. To present an employee with a decision already made ‘fatally taints’
the process, rendering it procedurally unfair.
[47] The employee’s case is that the outcome of the restructuring process was
predetermined: his position had already been identified as obsolete long before
any section 189 consultation commenced, and the employer’s subsequent
steps did not amount to a genuine joint consensus-seeking process.
[48] It will be recalled that the proposed new structure, reflecting the employee’s
position as obsolete, was presented to employees on 23 June 2022. The
s189(3) notice was given to the employee 9 months later, on 24 March 2023. In
the intervening months, the employee had unsuccessfully applied for two
positions, and the employer had twice engaged him regarding a proposed
voluntary separation.
[49] The employer’s principal witness on the restructuring and retrenchment process
was Mr Oosthuizen, its Human Resources Manager. Mr Oosthuizen accepted
that pursuing voluntary separation negotiations before commenc ing s189
consultations reversed the usual order of events in a retrenchment process. He
also accepted that, apart from the June 2022 meeting, there were no further
consultations regarding the restructuring, and that no consultation with the
employee took place after he was issued with the section 189(3) notice.
15 SA Clothing and Textile Workers Union v Discreto (A Division of Trump and Springbok Holdings)
(1998) 19 ILJ 1451 (LAC).
12
[50] The employer contended that retrenchment was not yet contemplated during
the earlier stages of the restructuring, when its aim was to avoid dismissal by
accommodating the employee elsewhere. However, once the employee’s
position was identified as obsolete, in circumstances in which the employer
knew the employee satisfied none of the qualification criteria stipulated for the
roles at his level, dismissal was plainly a potential if not contemplated outcome
and the obligation to consult accordingly arose at that point – and, in any event,
certainly by the time the employer suggested he apply for the junior Buyer roles
and then initiated discussions concerning voluntary or mutual separation.
[51] I find that the section 189 process was not a genuine attempt to engage on
alternatives to dismissal . The employee was the only person identified for
retrenchment, and the formal consultation process commenced only after
attempts to secure his departure by other means had failed.
[52] The employer has failed to persuade the Court that it engaged in a meaningful
joint consensus-seeking process, as required by section 189 of the LRA. The
dismissal was accordingly procedurally unfair.
Substantive fairness
[53] The employer bears the onus of establishing that the dismissal was
substantively fair, namely that it was based on a genuine operational
requirement and that the employee was fairly selected for dismissal.
[54] The employee’s case was that the employer failed to establish a fair basis
either to treat his position as redundant or to require him to compete for
continued employment. He contended that the position of Manager:
Procurement was materially similar to the Procurement Coordinator role he
already held, and that the newly introduced tertiary qualifications were the
deciding factor in excluding him from continued employment.
[55] The evidence supports that contention. The employee testified, with reference
[55] The evidence supports that contention. The employee testified, with reference
to the respective job descriptions, that the Manager: Procurement role formally
introduced only two additional functions, namely oversight of spend and cost -
saving initiatives, which functions he was already effectively performing. The
reporting structure also remained materially unchanged, with buyers continuing
13
to report to the role. Mr Oosthuizen accepted that he had not compared the job
contents of the roles and was unable to identify any material difference
between them. Ms Mahadew maintained that the positions differed but could
offer no persuasive comparison of functions or responsibilities, nor was
evidence led from the external consultant responsible for designing the
structure and job profiles.
[56] The employer relied on a Paterson grading and organisational redesign
process to justify introducing the tertiary qualification requirements . However,
the evidence did not establish why such qualifications had become necessary
for a role whose functions substantially overlapped with those the employee
already performed. Furthermore, the employer shortlisted and interviewed the
employee despite his acknowledged lack of qualifications, but then relied on
that lack as the reason for not appointing him. That materially undermines the
employer’s contention that the qualifications constituted a genuine operational
prerequisite for the role.
[57] Nor does South African Breweries (Pty) Ltd v Louw
16 assist the employer.
While a ‘dislocated’ employee may fairly be required to compete for positions
within a new structure, no fair basis existed in the present matter for treating the
employee as dislocated in the first place, or for excluding him from the
Manager: Procurement role merely because other candidates performed better
against revised criteria.
[58] The employer cited the employee’s refusal to apply for the lower -level Buyer
position as justification for his dismissal . The Court accepts the employee’s
explanation that the Buyer position entailed materially reduced status and
remuneration and effectively required him to start again at the lowest level. In
circumstances where the employer had not established a fair basis for
excluding him from the Manager: Procurement role, his refusal to apply for the
Buyer position does not render the dismissal substantively fair.
Buyer position does not render the dismissal substantively fair.
16 South African Breweries (Pty) Ltd v Louw (CA16/2016, C285/2014) [2017] ZALAC 63; [2018] 1
BLLR 26 (LAC); (2018) 39 ILJ 189 (LAC) (24 October 2017).
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[59] In the circumstances, the employer did not establish that the employee’s
dismissal was for a fair reason connected to the restructuring process. The
dismissal was substantively unfair.
Conclusion on operational requirements dismissal
[60] The employer has not discharged the onus of establishing that the employee’s
dismissal was procedurally or substantively fair. The dismissal was accordingly
unfair.
Unfair discrimination (EEA)
[61] The employee further contends that the employer ’s conduct constituted unfair
discrimination on the grounds of race and, alternatively, on the arbitrary ground
of a lack of formal qualifications.
Race
[62] To establish unfair discrimination on the ground of race, the employee must
show that he was subjected to differential treatment on that basis.
[63] The employee relied principally on the earlier decision to remove him from the
position of Group Supply Chain Manager, together with the reference at that
stage to him being a white male. However, the evidence does not establish that
the subsequent restructuring, non-appointment, or retrenchment decisions were
themselves driven by considerations of his race. In particular, the evidence
does not establish that race played any role in the employee’s exclusion from
positions within the new structure or in the eventual termination of his
employment. I am therefore not persuaded that the employee established
ongoing differential treatment on the basis of race arising from, or continuing
after, the earlier demotion.
[64] This is reinforced by the employee’s own acceptance in cross-examination that
race did not play a role in the decision not to appoint him to positions in the new
structure. The position of Manager: Procurement was also ultimately filled by a
candidate of the same race as the employee.
15
[65] In those circumstances, the employee has not established that he was
subjected to differential treatment on the basis of race in contravention of
section 6 of the EEA.
Lack of qualifications
[66] The employee also relies on his lack of formal qualifications as an arbitrary
ground of discrimination.
[67] Section 11 of the EEA requires an employee alleging unfair discrimination on
an arbitrary ground to prove that the conduct complained of is not rational, that
it amounts to discrimination, and that the discrimination is unfair. The employee
has established the first of these requirements. The employer’s decision to
exclude him from a role whose functions substantially overlapped with those he
was already performing was irrational and, as I have found, lacked a fair
operational basis.
[68] On the broad approach to ‘arbitrary grounds’ initially formulated in Kadiaka,
17
that might have been sufficient, because unfair discrimination on an arbitrary
ground was there understood to proscribe employer conduct that was
capricious, unreasonable, or lacking an objective commercial rationale.
However, our Courts have since adopted a narrower interpretation of ‘arbitrary
grounds’: only discrimination on grounds analogous to the listed grounds – by
reference to their immutability and impact on human dignity – is prohibited .
18
Irrational differentiation alone is insufficient.
[69] The employee testified that financial constraints prevented him from pursuing
tertiary education after school, but he later attained sustained seniority and
substantial remuneration within the employer’s organisation, notwithstanding
his lack of formal qualifications. There was no evidence that he remained
unable thereafter to obtain such qualifications, or that his lack of tertiary
qualifications arose from the kinds of systemic exclusion and entrenched
disadvantage produced by apartheid and other discriminatory laws and
17 Kadiaka v Amalgamated Beverage Industries (1999) 20 ILJ 373 (LC).
17 Kadiaka v Amalgamated Beverage Industries (1999) 20 ILJ 373 (LC).
18 See the LAC’s decision in Naidoo and Others v Parliament of the Republic of South Africa (note 14
above).
16
practices, and the resulting disparities which the Employment Equity Act seeks
to eliminate in order to promote equality and eradicate unfair discrimination.19
[70] I am accordingly not persuaded, on the facts of this case, that the employee’s
lack of formal qualifications constituted an immutable characteristic, or one that
impaired his dignity in a comparably serious manner to the listed grounds. I
therefore find that , in these particular circumstances, the employee’s lack of
formal qualifications did not constitute an arbitrary ground analogous to the
listed grounds in section 6 of the EEA . No unfair discrimination has been
established on this ground.
Conclusion
[71] The employee has not established that the employer ’s conduct constituted
unfair discrimination on either of the grounds relied upon. The discrimination
claim must accordingly fail.
Relief
[72] The employee has not established that his dismissal was automatically unfair,
nor that the employer’s conduct constituted unfair discrimination. The employee
has, however, established that his dismissal for operational requirements was
procedurally and substantively unfair.
[73] The primary remedy in the case of an unfair dismissal is reinstatement, unless
one or more of the recognised exceptions apply. In this matter, the employee
did not pursue a claim for reinstatement but instead sought compensation.
[74] The Court must determine an amount of compensation that is just and
equitable in all the circumstances, subject to the statutory limit.
[75] The employer’s failures went to the core of both procedural and substantive
fairness. The evidence establishes that the employee’s position was identified
as redundant before any meaningful consultation took place, that the statutory
process was invoked only at a late stage, and that recruitment criteria were
applied inconsistently. The employee was required to compete for a position
19 See the preamble to the EEA.
17
that, on the evidence, was substantially similar to the one he had previously
held, in circumstances where his lack of formal qualifications , despite his
proven ability to perform the work, was treated inconsistently and without
justification. Taken together, t hese features reflect a serious failure to comply
with the obligations governing dismissals for operational requirements.
[76] The employee had served the employer for several years and had progressed
to a senior position within its supply chain function. That weighs in favour of a
substantial award. Having regard to the seriousness of the unfairness
established, the Court is satisfied that an award of compensation at the
statutory maximum, being an amount equivalent to 12 months’ remuneration, is
just and equitable.
Costs
[77] Both parties sought costs. In terms of s ection 162 of the LRA , the Court may
make an order for costs having regard to the requirements of law and fairness.
[78] The employee achieved substantial success in relation to the unfair dismissal
claim, but not in relation to the discrimination claims. In the absence of conduct
warranting an adverse costs order, the requirements of law and fairness are
best served by making no order as to costs.
[79] In the result, the following order is made:
Order
[1] The employee’s dismissal was procedurally and substantively unfair.
[2] The employer is ordered to pay the employee compensation in the amount of
R1,195,305.9620 within ten days of the date of this Order.
[3] The employee’s claims of automatically unfair dismissal and unfair
discrimination are dismissed.
[4] There is no order as to costs.
20 12 x R99,608.83.
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_______________________
SJ Harvey
Judge of the Labour Court of South Africa
Appearances:
For the Employee: Mr R Fourie, instructed by McCarthy Incorporated
For the Employer: Mr G Allsop of Pinsent Masons South African Inc