THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: 2026-050046
In the matter between:
GENERAL WORKERS UNION OF SOUTH AFRICA
(GIWUSA) OBO MEMBERS Applicant
and
KELLOGG COMPANY OF SOUTH AFRICA (PTY) LTD
t/a KELLANOVA First Respondent
SOUTH AFRICAN CLOTHING AND TEXTILE WORKERS
UNION (SACTWU) Second Respondent
Heard: 17 March 2026
Delivered: 11 June 2026
Summary: Application in terms of section 189A (13) of the LRA – decision to
dismiss before commencement of consultation process – fait accompli
scenario – does it constitutes procedural or substantive unfairness – on the
facts of this case it was concluded that fait accompli constitutes substantive
unfairness – the repealed section 189A (19) found to be of assistance in
determining whether fait accompli in this case constitutes procedural or
substantive unfairness – application dismissed – no order as to costs.
(1) Reportable: No
(2) Of interest to other Judges: No
(3) Revised
____________ ______________
Signature Date
2
JUDGMENT
MGAGA, AJ
Introduction
[1] This is an urgent application brought in terms of section 189A (13), read with
section 189A (17) of the Labour Relations Act 1 (LRA). The applicant is the
General Workers Union of South Africa (GIWUSA), which brought this
application in a representative capacity on behalf of its 26 members 2 who
were dismissed by the first respondent based on operational requirements.
For the sake of convenience, in this judgment the 26 members of GIWUSA
will be referred to as the applicants, and GIWUSA as the applicant or
GIWUSA.
[2] In essence, t he applicant seeks an order declaring that the dismissal of the
applicants was procedurally unfair and that the first respondent be o rdered to
reinstate the applicants and comply with a fair procedure as prescribed in
section 189 (2) and (3) of the LRA, alternatively, the first respondent be
ordered to pay compensation to the applicants.
[3] The application is opposed by the first respondent on various grounds which
will be set out later in this judgment.
[4] The first respondent is Kellogg Company of South Africa (Pty) Ltd t/a
Kellanova. The first respondent is in the business of producing breakfast
cereals and snack food s, operating from its plant in Springs, with its primary
place of business at Kellogg House in Sandton.
[5] The second respondent, South African Clothing and Textile Workers Union
(SACTWU) is cited as an interested party because it is also organizing within
1 Act 66 of 1995, as amended.
2 The list of GIWUSA members appears on annexure “AN2” to the founding affidavit – Caselines 002-
30.
3
the first respondent and it participated on behalf of its members in some of the
processes that will be discussed later in this judgment. However, the second
respondent did not participate in this application despite being duly served
with the papers . In any event, no relief is sought against the second
respondent.
Urgency
[6] The urgency of this application is not contested. An application in terms of
section 189A (13) is inherently urgent. This application was brought on or
about 4 March 2026, and the notice to terminate the applicants’ services had
been issued by the first respondent on 16 February 2026 3. So, the application
was brought within 30 days after the issuing of the notice, in compliance with
section 189A (17) of the LRA.
[7] The Court is satisfied that this application meets the requirements of Rule 38
of the Rules Regulating the Conduct of the Proceedings of the Labour Court ,
and it must be dealt with on urgent basis.
Relevant material facts
[8] Initially the applicants and other employees were procured by a temporary
employment service (TES or labour broker), Boardroom Appointments, to
render services at the first respondent’s Springs plant from August 2023.
[9] On or about May 2025 the second respondent referred a dispute to the
Commission for Conciliation Mediation and Arbitration (CCMA) seeking an
order to declare the TES’ employees to be deemed employees of the first
respondent as envisaged in section 198A (3)(b) of the LRA. Later, GIWUSA
joined the dispute on behalf of its members.
[10] The section 198A dispute was ultimately resolved on 19 November 2025
when a settlement agreement was concluded between the first respondent
and the two trade unions (GIWUSA and SACTWU) 4. There is a dispute as to
3 The notice appears on annexure “AN9” to the founding affidavit – Caselines 002-50 to 002-54.
4 The settlement agreement appears on annexure “AN4” to the founding affidavit – Caselines 002-35
to 002-37.
4
the date from which the TES employees were deemed to be the employees of
the first respondent. The applicant contends that it was from October 2023,
and the first respondent contends that it was from the date of signing the
settlement agreement, 19 November 2025. In determining the issues in this
application, nothing much turns on the deeming date.
[11] On or about 21 August 2025 the first respondent informed Boardroom
Appointment that it no longer required the services of the TES employees 5. In
turn, Boardroom Appointments informed the first respondent that it would
initiate the section 189 retrenchment process and it invoiced the first
respondent for the costs of retrenchment.
[12] On 9 September 2025 Boardroom Appointments issued a notice in terms of
section 189 (3) of the LRA to the TES employees, including the applicants 6.
The notice, inter alia , sets out comprehensively the first respondent’s
operational and technological changes which resulted in the reduced need for
temporary labour. However, the first respondent claims that it did not
contribute to the contents of the notice issued by Boardroom Appointments.
[13] After the issuing of the section 189 (3) notice by Boardroom Appointments the
TES employees, including the applicants, were denied access to the
workplace as their access cards were deactivated, and they did not receive
their weekly wages from 1 October 2025.
[14] It appears that the CCMA was requested to appoint a facilitator to facilitate the
retrenchment process in terms of section 189A (3) of the LRA. On 29 October
2025 a facilitation meeting took place before the CCMA facilitator .
Interestingly, the first respondent also attended the facilitation meeting despite
the fact that the section 189(3) notice was issued by Boardroom
Appointments. At this facilitation meeting the first respondent undertook to
issue a new section 189 (3) notice under its name , to grant TES employees
access to the workplace and pay their outstanding weekly wages from 1
access to the workplace and pay their outstanding weekly wages from 1
October 2025. This was probably because it was appreciated that by then the
TES employees were already deemed to be employees of the first
5 Para 8 of the answering affidavit – Caselines 003-3.
6 The notice appears on annexure “AN5” to the founding affidavit – Caselines 002-38 to 002-44.
5
respondent, hence the subsequent settlement agreement on 19 November
2025 which confirmed this appreciation.
[15] On 31 October 2025 the first respondent issued a section 189 (3) notice to the
TES employees including the applicants 7. This notice also sets out
comprehensively the first respondent’s operational and technological changes
which resulted in the reduced need for temporary labour. The notice further
indicated that consultation period would be from 1 November to 31 December
2025 subject to extension if needed. In the notice the first respondent gave
commitment to explore all reasonable alternatives to dismissal before any
final decision was made regarding the proposed retrenchments.
[16] On 5 November 2025 the two trade unions requested facilitation by the
CCMA.
[17] On 25 November 2025 GIWUSA wrote a letter to the first respondent
contending, inter alia , that the section 189(3) notice was procedurally
defective because it was issued only to the TES employees and not to the
permanent employees. GIWUSA demanded that the notice be withdrawn and
a new one be issued to all employees whose jobs might be affected by the
intended retrenchment8.
[18] Between 26 November 2025 and 16 February 2026 five consultation meetings
took place between GIWUSA and the first respondent. Consultation meetings
facilitated by the CCMA facilitator took place on 26 November 2025; 30
January 2026; and 16 February 2026 respectively. The unfacilitated meetings
between GIWUSA and the first respondent took place on 3 December 2025
and 11 February 2026 respectively. The minutes of the consultation meetings
setting out the issues discussed were not placed before the Court.
[19] On 23 December 2025 the facilitator had issued a written ruling declining to
pronounce on the alleged procedural unfairness of the section 189(3) notice
7 The first respondent’s notice appears on annexure “AN9” to the founding affidavit – Caselines 002-
50 to 002-54.
50 to 002-54.
8 Annexure “AN10” to the founding affidavit – Caselines 002-55.
6
issued by the first respondent9. This followed a deadlock reached by GIWUSA
and the first respondent in the unfacilitated meeting of 3 December 2025.
[20] At the facilitated meeting of 16 February 2026 the first respondent contended
that the consultation had been exhausted and it would issue notices of
termination the following day. Indeed, on 17 February 2026 the first
respondent issued termination notices indicating that the services of the
applicants would be terminated on 28 February 202610.
[21] As alluded to above, on 4 March 2026 the applicant brought this application
and it was heard by this Court on 17 March 2026. Mr Poriazis appeared for
the applicant and Mr Patel for the first respondent.
Applicant’s case
[22] The applicant’s main contention which was pursued in its heads of argument
and during oral argument is that prior to issuing the section 189 (3) notice on
31 October 2025 the first respondent had already decided to get rid of the
TES employees who were initially procured by Boardroom Appointments.
Therefore, the first respondent could not and did not engage in a meaning ful
joint consensus-seeking process as envisaged in section 189 (3) of the LRA,
so the applicant’s argument goes11.
[23] In support of its contention the applicant relies on the fact that the TES
employees were denied access to the workplace and their weekly wages
were stopped soon after Boardroom Appointments issued the first section
189(3) notice on 9 September 2025. The applicant contends that, effectively,
the TES employees , including the applicants, were already dismissed even
before the consultation started.
[24] The applicant buttresses its argument by pointing out that the section 189(3)
notices were issued to the TES employees only, whereas permanent
9 Annexure “AN11” to the founding affidavit – Caselines 002-56 to 002-59.
10 Samples of notices appear on annexure “AN16” to the founding affidavit – Caselines 002-124 to
002-129. These notices are incorrectly referred to as ‘Involuntary Retrenchment Agreement’. There
was no agreement regarding this retrenchment.
11 The procedural challenges raised by the applicant are summarized succinctly in paragraphs 25 to
33 of the first respondent’s heads of argument. Except paragraph 31, t hose are clearly substantive
issues, hence Mr Poriazis did not pursue them in his heads of argument and oral arguments.
7
employees could also have been affected by the operational and
technological changes introduced by the first respondent. Reliance is also
placed on the first respondent’s admission that it informed Boardroom
Appointments that TES employees were no longer required.
[25] In advancing its argument further, the applicant submitted that the approval of
the restructuring plan at the end of 2024 clearly shows that the first
respondent intended to ‘remove or release’ all ‘labour broker temps’.
[26] In a nutshell, the applicant’s contention is that by the time the consultation
started the horse had already bolted, so to speak, because the first
respondent had already decided the fate of the applicants. This contention is
normally referred to as fait accompli, and this nomenclature will be adopted in
this judgment henceforth. On the basis of fait accompli, the applicant submits
that the eventual dismissal of the applicants with effect from 28 February 2026
was procedurally unfair.
First respondent’s case
[27] The first respondent vehemently disputes that the dismissal of the applicants
was procedurally unfair. The first respondent denies that it took a final
decision to retrench the applicants before the consultation started.
[28] In support of its case and its bona fides the first respondent refers to its
willingness to start the retrenchment process afresh when it was directed to
do so by the CCMA facilitator, reinstating applicants’ access to the workplace
and paying their outstanding wages from 1 October 2025.
[29] The first respondent also relies on the fact that the consultation took place
over a period of 105 days whereas it was allowed to issue termination notices
after 60 days. The prolonged consultation period is indicative of the first
respondent’s intention to meaningfully engage the applicant , not a
predetermined decision.
[30] The first respondent contends that it embarked on a genuine meaningful
[30] The first respondent contends that it embarked on a genuine meaningful
consultation on alternatives to avoid dismissal, timing of dismissal, selection
8
criteria and severance pay. The fact that an agreement could not be reached
on these issues does not mean that there was no compliance with section
189(3) of the LRA. Reaching an agreement during consultation is not a
statutory requirement, so the first respondent contends.
[31] The first respondent disputes the fait accompli contention, and argues that, in
any event established fait accompli constitutes substantive unfairness, not
procedural unfairness.
[32] In their heads of argument and during oral arguments both parties relied on
case law in support of their diverse contentions.
Issue to be decided
[33] In determining whether the applicant has made out a case that the dismissal
of the applicants was procedurally unfair, the main issue to be decided first is
whether the alleged fait accompli constitutes procedural unfairness in this
case. Put differently, if it is established that the first respondent decided to
dismiss the applicants before the consultation process started, does that
render the dismissal procedurally unfair, as submitted by the applicant, or
substantively unfair, as submitted by the first respondent ? If fait accompli
does constitute procedural unfairness in this case, the next question to be
determined would be whether fait accompli has been established on the facts
of this case having regard to the Plascon-Evans rule12. If fait accompli does
not constitute procedural unfairness, this application cannot succeed because
section 189A (13) concerns itself with procedural unfairness only.
Legal framework and relevant case law
Legislation
[34] In a large scale retrenchment if an employer does not comply with a fair
procedure, based on section 189A (13) read with section 189A (17) of the
LRA, a consulting party may approach this Court for an order aimed at
compelling the employer to comply with a fair procedure.
12 Plascon-Evans Paints (Ltd) v Van Riebeck Paints (Pty) Ltd 1984 (3) SA 623 (A)
9
[35] Section 189(2) of the LRA provides:
‘The employer and the other consulting parties must in the consultation
envisaged by 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.’
[36] Section 189A(13) and related sections provide:
‘(13) 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.
(14) Subject to this section, the Labour Court may make any appropriate
order referred to in section 158 (1) (a).
(15) An award of compensation made to an employee in terms of
subsection (14) must comply with section 194.
10
(16) The Labour Court may not make an order in respect of any matter
concerning the disclosure of information in terms of section 189 (4)
that has been the subject of an arbitration award in terms of section
16.
(17) (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).
(18) 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).’
[37] Section 189A (19) was repealed in 2014 by section 33 (b) of the Labour
Relations Amendment Act 13. Prior to being repealed, section 189A (19)
provided:
‘In any dispute referred to the Labour Court in terms of section 191(5)(b)(ii)
that concerns the dismissal of the number of employees specified in
subsection (1), the Labour Court must find that the employee was dismissed
for a fair reason if –
(a) the dismissal was to give effect to a requirement based on the
employer’s economic, technological, structural or similar
needs;
(b) the dismissal was operationally justifiable on rational grounds;
(c) there was a proper consideration of alternatives; and
(d) selection criteria were fair and objective.’
13 Act 6 of 2014
11
[38] The relevance of referring to the repealed section 189A(1 9) will become
clearer later in this judgment.
Case law
[39] In a plethora of judgments it has been held that the main purpose of section
189A (13) is to allow early intervention by this Court in large scale
retrenchments where it has become clear that the employer is not following a
fair procedure during a retrenchment process. The intervention is aimed at
directing the employer to follow a fair procedure before retrenching the
employees. The procedural flaws must be of a kind that can be corrected by
resetting the process14.
[40] In Regenesys Management (Pty) Ltd t/a Regenesys v Ilunga and Others15
(Regenesys) the Constitutional Court confirmed that competent orders (a) to
(c) in section 189A (13) serve the primary purpose of section 189A (13), which
is to compel the employer to comply with a fair procedure before finally
dismissing the employees, whereas the compensation order (d) serves the
secondary purpose, which is to compensate the dismissed employees for
failing to comply with a fair procedure. Compensation is appropriate for
procedural unfairness in circumstances where the fair process can no longer
be restored. The orders contemplated in (a) to (c) are the preferred orders as
they fulfil the primary purpose of section 189A (13)16.
[41] In elucidating the role played by this Court’s intervention in terms of section
189A(13), the Constitutional Court in Steenkamp and others v Edcon Ltd 17
(Steenkamp II) put it thus:
‘In exercising its powers in terms of s 189A(13) of the LRA, the Labour Court
thus acts “as the guardian of the process” and exercises a “degree of judicial”
management or oversight over the process. The aim is to proactively foster
the consultation process by allowing parties to seek the intervention of the
14 In National Union of Mineworkers v Anglo American Platinum Ltd and others [2013] 12 BLLR 1253
(LC) paras 19 to 25, Van Niekerk J (as he then was) deal t extensively with the purpose and scope of
section 189A(13), quoted with approval by the Constitutional Court in Solidarity on behalf of Members
v Barloworld Equipment Southern Africa and Others (2022) 43 ILJ 1757 (CC) (Barloworld) at para 57.
15 (2024) 45 ILJ 1723 (CC)
16 Regenesys paras 74 to 77 and 140.
17 (2019) 40 ILJ 1731 (CC) at para 54.
12
Labour Court on an expedited basis to ensure that procedural irregularities do
not undermine or derail the consultation process before it ends.’
[42] Regarding the concept of ‘ meaningful joint -consensus seeking process ’
envisaged in section 189 (2), in Atlantis Diesel Engines (Pty) Ltd v National
Union of Metal Workers of South Africa18, the following was stated:
‘The latter approach requires consultation once the possible need for
retrenchment is identified and before a final decision to retrench is reached . It
proceeds on the premise that consultation requires more than merely
affording an employee an opportunity to comment or express an opinion on a
decision already made. It envisages a final decision being taken by
management only after there has been consultation in good faith . . . . ” (My
emphasis)
Discussion and evaluation
[43] Having regard to the relevant facts and the legal framework set out above, the
Court now turns to consider the first issue to be decided, namely, whether a
fait accompli in the context of this case constitutes procedural unfairness.
[44] If it is so that the first respondent had already decided to get rid of the
applicants even before the section 189 (3) notices were issued, it would mean
that the first respondent could not embark on a meaningful joint -consensus
seeking process aimed at reaching consensus on the appropriate means to
avoid the dismissals. It follows that, practically, it would not be possible for the
first respondent to genuinely explore alternatives geared towards preventing
the dismissals. With a decision to dismiss already made, any attempt at
consulting about alternatives to avoid the dismissals would be a charade
aimed at deceiving the other consulting party to think that it was being
genuinely consulted on alternatives . The vexed question is whether this
constitutes procedural unfairness or substantive unfairness.
[45] It has been recognized that in dismissals based on operational requirements
[45] It has been recognized that in dismissals based on operational requirements
there is often an overlap or a blurred distinction between procedural and
18 (1994) 15 ILJ 1247 (A) at 1252G – 1253A. This passage was referred to with approval by the
Constitutional Court in Barloworld.
13
substantive issues.19 However, section 189A (13) calls for a clear distinction
to be made between procedural and substantive issues because the section
concerns itself with procedural issues only.
[46] Mr Poriazis, for the applicant, relied heavily on National Union of Metal
Workers of SA and Others v Dorbyl Ltd and Another 20 (Dorbyl) where, in
discussing procedural fairness of retrenchment, the following was stated:
‘…This court and the Labour Appeal Court have on many occasions
emphasized that consultation in the context of a retrenchment exercise
means a 'joint problem -solving' or a 'joint consensus seeking' exercise. If an
employer makes a decision to retrench employees before consultation has
been completed it essentially presents employees with a fait accompli and
that is fatal to the procedural fairness of the retrenchments.’ 21
[47] Two things can be said about Dorbyl. Firstly, it refers to a situation where a
decision to retrench employees is made before completion of the consultation
process, not before commencement of the consultation process. Secondly,
Dorbyl was decided before the promulgation of section 189A(13) when the
need for a distinction between procedure and substance was not as
pronounced as it became thereafter.
[48] In reaching the conclusion that the fait accompli in the context of this case
constitutes substantive unfairness as opposed to procedural unfairness, this
Court relies heavily on South African Commercial, Catering and Allied
Workers Union and others v Woolworths (Pty) Ltd 22 (Woolworths), where it
was concluded that the failure to properly consider alternatives to dismissal
rendered the dismissals substantively unfair:
‘[37] None of the above alternatives were considered or attempted by
Woolworths. Woolworths has also offered no tenable reasons for this
failure, when it bears the onus to show that it had considered all
possible alternatives in this regard. On the evidence before us,
possible alternatives in this regard. On the evidence before us,
19 See: Woolworths (Pty) Ltd v SA Commercial Catering and Allied Workers Union and Others (2018)
39 ILJ 222 (LAC) at para 22.
20 (2004) 25 ILJ 1300 (LC).
21 Id para 4.2.1.
22 [2019] 4 BLLR 323 (CC).
14
Woolworths has not shown that it properly considered these
alternatives. This constitutes a breach of section 189A(19)(c) of the
LRA.
[38] It therefore follows that the dismissal of the individual applicants was
substantively unfair because Woolworths has failed to prove that it
complied with section 189A(19)(b) or (c) . In other words, Woolworths
failed to prove that the retrenchments were operationally justifiable on
rational grounds or that it properly considered alternatives to
retrenchments.” (My emphasis)
[49] This Court is mindful of the fact that Woolworths was decided on the basis of
the now repealed section 189A(19) of the LRA. However, the repeal of section
189A(19) did not obliterate the failure to properly consider alternatives to
dismissal as one of the reasons for a substantively unfair dismissal. This is so
because section 189A(19) was repealed in order to allow the courts to freely
develop jurisprudence regarding large -scale retrenchments, and not to be
straightjacketed to the four items listed in section 189A(19) as possible
reasons for a substantively unfair dismissal. The memorandum of objects to
the Labour Relations Amendment Bill stated:
‘Specifying the test to be applied in section 189A retrenchments has lead (sic)
to uncertainty about whether and to what extent this should apply to cases of
retrenchment where section 189 applies. The courts should retain their
discretion to develop the jurisprudence in this area in the light of the
circumstances and facts of each case and to articulate general principles
applicable to all retrenchment cases.’
[50] Section 189A (13) is designed to deal with genuine and clear cut procedural
flaws which are capable of being corrected by compelling the employer to
reset the process and comply with a fair procedure. In a fait accompli scenario
it is not possible to achieve the primary purpose of section 189A (13). Once
an employer has decided to dismiss the employees even before the
an employer has decided to dismiss the employees even before the
commencement of the consultation process, it is no longer possible to embark
15
on a genuine and meaningful joint -consensus seeking process with a view to
reach consensus on alternatives to avoid dismissal.
[51] Having concluded that the fait accompli scenario in this case constitutes
substantive unfairness, it is no longer necessary for this Court to consider the
second issue, namely, whether fait accompli has indeed been established on
the facts of this case. Also due to material disputes of facts in this regard it is
more desirable that this issue be determined by the trial court should the
applicants challenge the substantive fairness of their dismissal.
[52] In conclusion, this Court finds that this application cannot succeed because
the pleaded case of fait accompli constitutes substantive unfairness which
falls outside of the scope of section 189A (13) of the LRA.
Costs
[53] In terms of section 162 of the LRA, this Court may make an order for payment
of costs in accordance with the requirements of law and fairness. It is trite that
in labour matters costs do not necessarily follow the results. Something more
is required for litigants in this Court to be mulcted with costs when the
outcome is not in their favour.
[54] Mr Patel submitted that the applicant should be ordered to pay costs because
this application constitutes an abuse of court process. This Court does not
agree. It is clear from the above discussion and evaluation that the applicant
brought before this Court a genuine matter worthy of the Court’s
consideration.
[55] In the result, the Court makes the following order:
Order
1. Non-compliance with the timeframes in the Rules is condoned and the
matter is treated as urgent.
2. The application is dismissed.
16
3. There is no order as to costs.
_______________________
S.B. Mgaga
Acting Judge of the Labour Court of South Africa
17
Appearances:
For the Applicant: Mr K. Poriazis of GIWUSA
For the First Respondent: Mr A. Patel of Cliffe Dekker Hofmeyr Inc.