THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JS 602 / 20
In the matter between:
NOMSA SHEKWAMBANE AND 4 OTHERS Applicants
and
CURRO HOLDINGS LTD t/a
CURRO ACADEMY PRETORIA Respondent
Heard: 16 to 18 February 2026
This judgment was handed down electronically by circulation to the parties and
legal representatives by email. The date and time for hand -down is deemed to
be 30 July 2026
Summary: Operational requirements – rationale for retrenchment –
outsourcing of cleaning services – non-core function of employer – employer
entitled to outsource cleaning functions – such decision rendering positions of
employees redundant – employees refusing to transfer to new service provider
– valid / justified operational rationale for retrenchment – retrenchment for a
fair reason
Operational requirements – alternative position s – alternative position s with
outsource service provider available and offered – position terms identical to
positions at employer – employees refusing to accept alternative positions –
(1) REPORTABLE: NO
(2) OF INTEREST TO
OTHER JUDGES: YES
(3) REVISED: YES
30 July 2026
2
no proper / justified basis for employees refusing to accept alternative
positions – employees’ retrenchment justified and fair
Operational requirements – procedural fairness – employees could have
avoided retrenchment by accepting suitable alternative positions – any case of
procedural fairness thus of no consequence – objectives of section 189
fulfilled – employees in any event properly consulted – employees having no
intention to bon a fide consult with employer – retrenchment of employees
procedurally fair
Dismissal – operational requirements – dismissal of employees substantively
and procedurally fair – claim dismissed
JUDGMENT
SNYMAN, AJ
Introduction
[1] To me, it is quite tragic that in today’s economy with such a shortage of jobs, a
trade union in the course of retrenchment proceedings adopts a position that
in the end costs i ts members guaranteed alternative jobs on quite favourable
employment conditions. But this is exactly what happened in this case. Was it
not for a intransigent position adopted and the n maintained by the employees
from the outset, as they were obviously advised to do by their trade union, I
am convinced we would not have been here. By saying the above I am not
seeking to undermine the important and valuable role trade unions play in the
employment environment in protecting the interests of employees . What I am
saying is that with the duty to protect employees, comes the duty to act
responsibly, even if it means some sort of compromise.
[2] The case at hand arose from the dismissal of the five applicants on 29 June
2020 by the respondent for operational requirements under section 189 of the
Labour Relations Act (LRA)
1. The applicants challenged that dismissal as an
unfair dismissal dispute based on operational requirements, first to the
1 A ct 66 of 1995 ( as amended)
3
Commission for Conciliation, Mediation and Arbitration (CCMA) for
conciliation, and then to this Court for adjudication in terms of section
191(5)(b) of the LRA. The dispute was referred to this Court by way of a
statement of claim filed on 9 March 2021, in terms of which the applicants
prayed for retrospective reinstatement as consequential relief . The claim was
opposed by the respondent by way of an answering statement filed on 6 April
2021.
[3] The matter came before me on trial over three days from 16 to 18 February
2026. Only four of the applicants attended at Court, as the second applicant,
Elizabeth Seema, had become deceased, and was no longer party to the
case. In the trial, the respondent called two witnesses to testify on its behalf,
being Johan Goosen (Goosen) , the executive head of the respondent, and
Ashen Sewpersad (Sewpersad} who was employed at the time when this
matter arose by Omega People Solutions, a company that provided HR
services to the r espondent. The applicants also called two witnesses , being
Wilson Khoza (Khoza), the applicants ’ trade union represe ntative from
HICRAWU (he also represented the applicants at the trial), and Harry
Raseroka (Raseroka), who was the fifth applicant.
[4] At the conclusion of the trial on 18 February 2026, the applicants requested
that they be afforded the opportunity to file written closing argument, to which
the respondent did not obj ect. Accordingly, I granted an order on 18 February
2026 in terms of which I afforded the respondent until 27 February 2026 to file
its written submissions, the applicant s until 13 March 2026 to file their
answering submissions, and the respondent until 20 March 2026 to file a reply.
The written submissions were filed accordingly, with the respondent electing
not to file a reply. I also reserved judgment on 18 February 2026, pending
receipt of these written submissions. I will now proceed to decide this matter
by first setting out the relevant facts.
by first setting out the relevant facts.
The relevant facts
[5] Save for a few specific factual disputes, which will be dealt with separately in
this judgment, the bulk of the evidence and what transpired in this matter were
largely common cause, or undisputed. The factual matrix as set out below is
4
based on the evidence which I have accepted would constitute the proper
factual basis on which this matter is to be decided.
[6] But from the outset, I must say something about the testimony of Raseroka.
As far as I am concerned, he was completely lacking in credibility. He raised
issues in his testimony never pleaded as part of the applicants’ case, one of
which was that he was not aware that his conditions of employment in the
alternative position offered to him would remain the same, despite this being
undisputed. He often resorted to answering ‘ I do not remember ’ when
confronted with questions that did not suit him. He even on occasion disputed
his own statement of claim. He contradicted himself. I have little hesitation in
rejecting his testimony where it conflicts with the testimony presented by
Goosen and Sewpersad.
[7] The respondent conducts business as a private education institution (private
school), and is part of the larger Curro Group of private education institutions.
The respondent, in this context, operates a school campus, which requires a
number of ancillary services to maintain it, such as maintenance and cleaning
personnel. These staff are not core the respondent’s operations. Turning then
to the applicants, they were employed by the respondent as general workers ,
and in particular as cleaners working in the respondent's cleaner department.
The respondent had no recognised trade union at the workplace, nor was it
aware of any trade union membership on the part of the applicants.
[8] Goosen, who as touched on above was the executive head at the campus,
testified that towards the end of 2019, an operational decision had been taken
by the respondent to outsource all its cleaning functions to a third-party service
provider. Goosen furt her testified that in fact several of the schools in the
Group were already functioning on such basis, and this decision would allow
the respondent to rather focus on its core operations and leave ancillary
the respondent to rather focus on its core operations and leave ancillary
services, with all the administrative and management burden associated with
it, to specialist third party service providers. Goosen also testified that this
would have a financial benefit to the respondent. In short, it made commercial
sense for cleaning services to be provided by a specialist cleaning contractor.
At this stage, the r espondent ha d already identified Suburban (Pty) Ltd
(Suburban) as a cleaning service provider, on the advice of the Group regional
5
head and other schools who was using Suburban’s cleaning services. Goosen
testified that, at the end of the day, he was accountable to run the r espondent
as a profitable business, and so the financial and operational benefits of
outsourcing was an important and relevant consideration.
[9] When the respondent made the operational decision to outsource its cleaning
services to Suburban, Goosen made sure that all the cleaning personnel
would be transferred to Suburban on the same terms and conditions of
employment they enjoyed at the respondent. In fact, it turned out that some of
the conditions of employment ( the provident fund benefit) was better than that
provided by the respondent. At the time, being end 2019, the respondent
employed eight cleaners in the cleaning department.
[10] When the r espondent had decided to outsource the cleaning services to
Suburban, it further identified that two of the cleaners had administrative
capabilities and skills, and the respondent was able to utilise their services in
the respondent’s administration department.2 It was decided to move these
two employees into administrative positions, and they would thus remain in the
respondent's employment in these positions . What is important to consider at
this juncture is that the respondent, at this time, was never contemplating the
retrenchment of any employee. In reality, what the respondent envisaged
would happen is that of the eight cleaners in its employ, two employees would
move to the administration department and do different jobs, whilst six
employees would transfer to Suburban on the same terms and conditions of
employment and still doing the same jobs. Thus, no retrenchments would be
necessary
.
[11] Strictly speaking, there would be no necessity to consult the employees on the
envisaged transfer to Suburban, because it constituted the outsourcing of a
service which would attract the application of section 197 of the LRA. This
service which would attract the application of section 197 of the LRA. This
meant that the employees would automatically transfer to Suburban, without
interruption. Nonetheless, and as Goosen testified, the respondent wanted the
‘buy-in’ from the employees with regard to this transfer. To this end, the
2 Goosen identified the two abovementioned employees because he met with all staff members to
familiarize himself with where each person came from and what particular skill s and attributes they
had which could contribute to the business.
6
respondent appointed Sewpersad, an independent consultant from Omega
People Solutions who performed HR functions for the r espondent, to consult
with the employees and to facilitate the transfer.
[12] Sewpersad convened a consultation with the employees on 13 December
2019, just before the school closed. However, and prior to th is meeting,
Sewpersad had first met and consulted with Suburban to confirm the
employees' terms and conditions of employment and that these would remain
the same. Sewpersad met with the six employees on 13 December 2019 and
briefed them on the intended transfer , and the consequences thereof to their
employment. He assured them that nothing would change with regard to their
jobs or conditions of employment, however they would, going forward, be
employed by Suburban. Sewpersad asked them to consider this over the
break. On the same day, the school then closed for the holidays and was to
open on 16 January 2020.
[13] The school reopened on 16 January 2020 , and the applicants reported for
work. They were again consulted on the immanent transfer to Suburban, and
were each individually presented with transfer agreement s containing the
same terms, which agreements had been prepared by Sewpersad, and signed
by Goosen for the respondent . The transfer agreement record ed that the
transfer would be effected pursuant to section 197 of the LRA. It is further
recorded that the applicants would be transferred to Suburban with effect from
1 February 2020 on the same or similar terms and conditions of employment.
Further stipulations in the transfer agreement included that the applicants ’
benefits would remain the same, their original starting date of employment with
the respondent would be recognised by Suburban and their provident fund will
remain intact and be transferred to Suburban’s fund as well.
[14] The applicants declined to sign the transfer agreement on 16 January 2020.
Instead, they requested time to consider the agreement and revert to the
Instead, they requested time to consider the agreement and revert to the
respondent, which the r espondent agreed to. It was contended by the
applicants in their pleadings that the respondent demanded on 16 January
2020 that they sign the transfer agreement there and then, but considering
what actually happened as evidenced by the facts, this clearly cannot be true.
7
[15] According to the applicants , they approached Khoza with the transfer
agreements and were informe d by him that they should refuse to sign the
transfer agreement s. Khoza in his evidence confirmed that he advised the
applicants accordingly. Khoza further testified that he then consulted attorneys
about this. On 20 January 2020 Carrirn Attorneys wrote a letter to the
respondent on behalf of the applicants . The letter recorded that the
respondent intended to outsource and transfer the applicants to some
‘unknown labour b roker’ without giving them an opportunity to respond, and
they were ‘vehemently opposed’’ to such intention. It must be said that having
regard to the actual facts summarized above, most of these allegation s are
simply not true. But be that as it may, and in this letter by Carrim Attorneys,
the applicants made their intention of refusing to agree to any transfer quite
clear. Further in the letter, it was demanded that the r espondent refrain from
the intended transfer, failing which the a pplicants would refer an unfair labour
practice dispute to the CCMA.
[16] A further meeting was held by Sewpersad with the applicants on 24 January
2020. In this meeting, the applicants indicated that they had sought advice
from a lawyer.3 They stated that they had been advised by their ‘lawyer’,
Khoza, to refuse to sign the transfer agreement and not to accept the transfer.
Sewpersad confirmed this evidence. The applicants thus once again did not
sign the transfer agreement.
[17] On 31 January 2020, Goosen, Sewpersad and Khoza met at the r espondent's
premises in Goosen's office. Khoza indicated in this meeting he was the
applicants’ lawyer. During the meeting, Khoza made it clear that the applicants
would not accept any transfer and that he would oppose any process
designed to transfer the a pplicants to another service provider. During the
meeting, the benefits of the transfer were explained to Khoza, and that years
meeting, the benefits of the transfer were explained to Khoza, and that years
of service of the applicants would remain intact . However, Khoza was not
interested, and remained adamant that no transfer would be accepted under
any circumstances , as it negatively impacted on the applicants’ job security
and that Suburban was a labour b roker which meant the applicants would be
unemployed if Suburban loses the contract. He explained that employees are
3 According to the applicants, they informed the respondent that they had sought advice from a trade
union, however I do not believe this version is true, as will be dealt with later in this judgment.
8
fighting to be ‘insourced’ and not ‘ outsourced’. Sewpersad explained that
Suburban has a national footprint, that it had a long-standing relationship with
the Group, and that the respondent had worked with it before and was
satisfied with its bona fides . Sewpersad explained that Suburban had always
protected employees' rights in the past , so the job security of the applicants
was not really an issue. Khoza remained unconvinced and steadfast in his
refusal to agree to the transfer.
[18] On 17 February 2020, Sewpersad called a meeting with Jonathan Webb
(Webb) from Suburban, in order for Webb to personally explain to the
applicants who Suburban was, how they fitted into the cleaning industry, and
what the benefits of working with Suburban were. In this meeting, Webb
assured the applicants that all terms and conditions of employment would
remain as they were with the r espondent. He also explained that the
applicants would in fact enjoy better medical aid and provident fund benefits at
Suburban. The applicants nonetheless still refused to sign the transfer
agreement.
[19] As referred to earlier, the transfer date was envisaged to be 1 February 2020,
which had now passed, with no transfer being effected, solely as a result of
the attitude adopted by the applicants and Khoza to the transfer. The
respondent, having due to regard to all the unsuccessful efforts undertaken to
get the applicants to rather agree to the transfer, then sought to implement the
transfer by way of a written notice o n 19 March 2020 headed ‘Transfer of
Employment in terms of Section 197 of the Labour Relations Act ’. The letter
recorded that there were several consultations between the parties on the
issue of the transfer and as far as the respondent was concerned, there was
no reason not to proceed with the transfer. It was indicated in the letter that the
transfer to Suburban would be effective 30 March 2020. It was furt her
transfer to Suburban would be effective 30 March 2020. It was furt her
confirmed that salary , benefits and years of service of the applicants would
remain intact.
[20] The applicants reacted by referring a dispute of unilateral transfer and / or
change of terms and conditions of employment to the CCMA on 23 March
2020, effectively challenging the transfer of the applicants to Suburban. Khoza
9
confirmed in his evidence that the very purpose of this referral was to
challenge the transfer.
[21] On 26 March 2020 the C OVID-19 pandemic lockdown commenced, which
effectively placed furt her dealings with this matter on hold. The applicants
returned to work on 25 May 2020, at which time Suburban had now taken over
the providing of cleaning services to the respondent at the campus. The
applicants were afforded a last opportunity to commence working for
Suburban, but they specifically refused to be transferred to Suburban or
render any services under the auspices of Suburban.
[22] Whilst section 197 of the LRA does envisage an automatic transfer,
employees cannot be compelled to transfer if they refuse to do so. Because of
the clear attitude adopted by the applicants , the respondent considered itself
unable to proceed with the transfer in terms of section 197, because the
applicants were quite adamant that they refused to be transferred to and did
not want to belong to Suburban. At the time, the r espondent's relationship with
Suburban had strained as a result, as it impacted on Suburban's contract with
the respondent because of the continued uncertainty caused by the
applicants’ continued employment at the respondent, whilst Suburban would
be required to render those same services. The respondent was thus
compelled to bring matters to a conclusion
.
[23] Consequently, and on 28 May 2020, the respondent issued notice in terms of
section 189(3) of the LRA of its intention to commence restructuring /
retrenchment proceedings, to the applicants (the section 189(3) notice). The
notice was issued in a consultation held with the employees that same day .
The notice explained that the reason for the restructuring was the decision
made by the respondent to focus on its core business activities in order to
ensure organisational effectiveness and providing competitive solutions. It was
explained that non- core functions would be abolished, and as a result, the
explained that non- core functions would be abolished, and as a result, the
applicants’ positions would become redundant. The notice also reflected that
all cleaner positions were impacted. In particular , the notice reflected that
alternatives of employment with the incoming service provider would be
tabled. All the other topics as contemplated by section 189(3) were also dealt
10
with in the notice. And lastly, the notice reflected the proposed consultation
dates, being 2, 10, 17 and 24 June 2020.
[24] The consultation on 28 May 2020 was facilitated by Sewpersad, who
explained the applicants' rights in the process and how the process would
unfold. Sewpersad specifically mentioned that alternative e mployment at
Suburban was still available and all the applicants would have to do was to
accept the same and so avoid any retrenchment. The applicants did not have
much to say in the consultation, and in particular, never indicated that they
were members of HICRAWU and required such trade union to represent them
in the consultations to follow.
[25] According to Sewpersad, who facilitated the consultations throughout, he was
not aware of any trade union's involvement and testified that although he knew
of Khoza, he was not familiar with Khoza’s capacity, and h e thought Khoza
was a lawyer. It was common cause that Khoza never approached the
respondent, whether in the capacity of trade union representative or otherwise,
to declare his involvement in the process and to request that he be allowed to
represent the applicants in the consultations to follow.
[26] In his evidence, Khoza explained that he did not engage with the respondent
or request that he represent the applicants in the consultations , because the
section 189(3) notice, which was given to him by the applicants, indicated that
no outside representation will be allowed. The veracity of this explanation will
be dealt with later in this judgment. But it was undisputed that after the
consultation on 28 May 2020, the section 189(3) notice was given to Khoza.
[27] It was common cause that the f our proposed consultations identified in the
section 189(3) notice indeed took place. This was on 2 June 2020, 10 June
2020, 17 June 2020, 24 June 2020 , and then a further a last consultation 29
June 2020 . Sewpersad facilitated each consultation and took handwritten
June 2020 . Sewpersad facilitated each consultation and took handwritten
minutes of each consultation, wh ich he then used to create typewritten
minutes. The contents of these minutes were not really disputed by Raseroka,
who was the only witness for the applicants present in the consultations.
[28] What the applicants did atte mpt to do at trial, by way of the evidence of
Raseroka, was to try and diminish the consultations to what Raseroka called
11
‘meetings’. It was alleged by Raseroka that each of these ‘meetings’ were just
to convey information to the applicants and nothing more. This version is
highly unlikely and in fact contradicts the pleadings and pre -trial minute. It will
deal with this later in this judgment, but at this juncture, I am satisfied in saying
that the five ‘meetings’ were actually consultations as contemplated by section
189 of the LRA.
[29] I do not intend to traverse the content of each of the consultations in detail,
mainly because the applicants did not do much in the form of participating
therein. Their participation was in fact informed by the approach they adopted
from the outset, and they remained adamant this was their position and
nothing else. In this context, they remained squarely opposed to any
outsourcing and transfer, and refused to transfer to or be employed by
Suburban. This was despite it being clear that the respondent would no longer
employ its own cleaners, and had decided to contract with Suburban to render
these services to it. The respondent sought to make it clear that it no longer
had any cleaners, and there were no positions for the applicants in the
respondent. In particular, and throughout the entire process, and right to the
end, the respondent continued to make the alternate employment at Suburban
available to the applicants. The applicants however remained steadfast in their
refusal to accept it, and in fact urged the respondent to ‘pull the trigger’.
[30] There was however one development that took place in the course of the
consultations. Just before the last consultation on 29 June 2020, a vacancy
arose within the maintenance department. As part of the group of applicants, it
was identified that two of them also had maintenance skills , and could fulfil
maintenance functions. Pat Khumalo (Khumalo) was one of them, and he was
offered the maintenance position vacancy based on skills and LIFO . Khumalo
offered the maintenance position vacancy based on skills and LIFO . Khumalo
accepted this vacancy offered, which avoided his retrenchment.
[31] Also, and during the course of the consu ltations, and in particular in the
consultation held on 10 June 2020, the applicants asked Sewpersad to
contact Khoza to discuss the Suburban alternative with him again. Sewpersad
then in fact contacted Khoza by telephone on 10 June 2020. In this
conversation, Khoza made it clear to Sewpersad that he must continue with
the process and that he (Khoza) would deal with it afterwards . Khoza had no
intention of getting involved in the process and intended to challenge it once it
12
had been completed. It is so that Khoza testified that he did not receive any
such telephone call from Sew persad, however I am comfortable in rejecting
his evidence in this regard, for the reasons dealt with later in this judgment.
[32] On 29 June 2020 the Respondent issued the applicant s with notices of
termination of employment due to operational requirements. The notice inter
alia specifically recorded that the applicants were retrenched because they,
without valid reason, refused the offer of altern ative employment with
Suburban. After the retrenchment, and with all cleaning services having been
outsourced to and provided by Suburban, the r espondent no longer employ ed
cleaning staff.
[33] The applicant then referred an unfair dismissal dispute to the CCMA on 8 July
2020. The dispute was unsuccessfully conciliated on 5 August 2020, and then
referred to the Labour Court, leading to the matter now before this Court.
Analysis; Substantive Fairness
[34] In the statement of claim, the applicants took issue with the rationale for the
retrenchment. According to them, the very notion of outsourcing their positions
was an ‘unjustified objective’ on the part of the respondent, and thus did not
constitute a valid reason for retrenchment. The applicants also contended that
as they were employ ed as general workers, their positions were not
redundant, despite their admission that they were working as cleaners in the
cleaning department, which no longer existed. The applicants never disputed
that that they were throughout offered alternative positions at Suburban on the
same terms and conditions of employment with length of service and benefits
intact, and that they refused to accept this . The aforesaid being the basis of
their case in the statement of claim, and also the pre- trial minute, the
applicants are bound to the case so articulated. 4 In particular in the context of
an unfair dismissal dispute based on operational requirements, the Court in
an unfair dismissal dispute based on operational requirements, the Court in
SA Breweries (Pty) Ltd v Louw5 said the following:
4 See Filta-Matix (Pty) Ltd v Freudenberg and Others 1998 (1) SA 606 (SCA) at 614B -D; National
Union of Metalworkers of SA and Others v Driveline Technologies (Pty) Ltd and Another (2000) 21 ILJ
142 (LAC) at paras 16 and 83; GE Security (Africa) v Airey and Others (2011) 32 ILJ 2078 (LAC) at
para 20 – 21.
5 (2018) 39 ILJ 189 (LAC) at para 14
13
‘… the premises upon which the issues were to be advanced had been refined
and limited by the terms of the minute, which is the very purpose of the minute
and, more particularly, the very purpose of the directives in the Practice
Manual. It was therefore inappropriate to fall back on the generalities of
averments about procedural and substantive unfairness. Were that approach
to be permissible, there would be no point at all to efforts to narrow issues and
trim down the scope of contestations. …’
[35] As a point of departure in deciding whether a dismissal for operational
requirements is substantively fair, it must be emphasized that this issue is
ordinarily decided by way of answering two questions. The first question is
often called the general question, and if this question is answered in favour of
the employer, that is followed by answering a specific question. These two
questions have been explained in Chemical Workers Industrial Union and
Others v Latex Surgical Products (Pty) Ltd6 as follows:
‘Whether or not there was a fair reason for the dismissal of the individual
appellants relates to a general question and a specific question. The general
question is whether or not there was a fair reason for the dismissal of any
employees. The specific one is whether there was a fair reason for the
dismissal of the specific employees who were dismissed, which in this case,
happened to be the individual appellants. The question of a fair reason to
dismiss the specific employees who were dismissed goes to the question of
the basis upon which they were selected for dismissal whereas the other
question relates to whether or not there was a reason to dismiss any
employees in the first place.’
[36] Starting with the general question, it is my view that there can be no doubt that
there exists a fair reason for the dismissal of the applicants. I n fact, and
properly considered, the applicants only have themselves opt blame for being
properly considered, the applicants only have themselves opt blame for being
dismissed. It was entirely in their own hands to have avoided their dismissal,
but they obstinately continued to pursue a course of action which placed them
squarely on the road to unemployment. They did this despite the concentred
and genuine attempts by the respondent to convince them otherwise. The
reasons for my views in this respect now follow.
6 (2006) 27 ILJ 292 (LAC) at para 55.
14
[37] Firstly, what was the initial cause for the applicants ’ ultimate dismissal? The
answer is straight forward and involved a perfectly legitimate operational
requirement of the respondent. On the undisputed evidence, the respondent is
in the business of conducting a private school. It is not a contract cleaning
business. It however employed the applicants as cleaners, to conduct cleaning
services at the school. Pursuant to an evaluation of operations at the school,
and in line with how such ancillary services (like cleaning) was being
conducted at other schools in the Group , Goosen, as the executive head,
decided that it was in the interest of operations, efficiency and profitability that
the cleaning functions in the school be rather entrusted to a third-party
specialist cleaning service provider. Or in simple terms, it was decided to
outsource cleaning to a cleaning service provider, which in this case was
Suburban.
[38] Ordinarily, such an outsourcing would attract the application of section 197 of
the LRA, in the form of the transfer of a service previously rendered to the
respondent by its own employees to another external party providing that
same service . That would be in line with what the Court decided in SA
Municipal Workers Union and Others v Rand Airport Management Co (Pty) Ltd
and Others7 where it was held as follows, concerning the taking over of
guarding and security functions of an employer by a third -party service
provider:
‘First and second respondents thus concluded an agreement in terms of which
second respondent was to take over certain functions previously performed by
the first respondent with effect from 1 September 2002. I am satisfied that the
functions which second respondent undertook to perform in terms of their
agreement fell within the ambit of 'service' as contemplated by s 197 of the Act
and that this was an agreement to transfer a service within the ambit of s 197
and that this was an agreement to transfer a service within the ambit of s 197
of the Act as a going concern. Accordingly, the agreement was an agreement
that, upon implementation, would have attracted the application of s 197 of the
Act. If the agreement was implemented, the contracts of employment of the
relevant employees would have been transferred from the first respondent to
the second respondent …
’
7 (2005) 26 ILJ 67 (LAC) at para 35.
15
[39] On the ev idence, it was undeniable that the respondent indeed believed
section 197 to be on the cards, and it approached the entire outsourcing on
that basis. It first ensured, with Suburban, that it would take transfer of all of
the applicants on their same terms and conditions of employment with their
length of service intact. It was also ensured that the applicants would continue
to do the same work at the school, but now under the auspices of Suburban as
their employer. All this having been established, the respondent then in a bona
fide manner engaged with the applicants to obtain their ‘buy-in’ to this transfer.
What happened in this case shows that no such good deed goes unpunished.
[40] The idea was that the applicants would each simply sign a transfer agreement
and would move across to Suburban with everything they had at the
respondent intact. That is why they were presented with the transfer
agreement on 16 January 2020 which recorded this . It is also not as if the
applicants were confronted with this out of the blue. They were briefed on what
would happen in this regard as far back as 13 December 2019, which gave
them ample time to consider their position. Also, and when the transfer
agreement was given to the applicants , they were not required to sign it right
there and then. They were allowed to take it away and consider it, which they
did. It must however be said that it is clear from the transfer agreement that
there would be no change to the applicants’ conditions of employment,
remuneration, du ties, workplace or length of service. All considered, it was
purely a change of employer to the new service provider, being Suburban.
[41] The applicants then indeed obtained advice. This advice was given by Khoza,
who took a stance on principle that any transfer to an external service
provider, which he considered for some reason to be the same as a labour
broker, was a bad thing, and should not be agreed to under any
broker, was a bad thing, and should not be agreed to under any
circumstances. He instructed the applicant s not to agree to the transfer
agreement. Khoza then briefed Carrim Attorneys, who conveyed this position
to the respondent on 20 January 2020 in no uncertain terms. What is clear
from the aforesaid is that the applicants wanted nothing to do with transferring
to or with working for Suburban. From the outset, the respondent was met with
unfettered opposition to the notion of transfer, per se . It was never even about
whether there was a possible change in conditions of employment. It was
16
about a complete unwillingness to change employer and agree to any transfer,
per se.
[42] The respondent nonetheless persisted with its efforts to get the applicants to
agree to transfer to Suburban. It met with Khoza on 31 January 2026 to
explain the situation to him. It is clear in my mind that he was the driving force
behind the applicants’ refusal to accept the transfer. He viewed the transfer as
the applicants being moved to some kind of labour broker where their job
security would be at stake. It was however specifically explained to him that
this is not the case, as Suburban is a long-standing contract cleaning service
provider providing services at other schools in the G roup as well. But Khoza
refused to see reason and stated that he would ‘fight’ any transfer.
[43] The respondent even went so far as to arrange a meeting between the
applicants and Suburban, so it would be explained to them face to face by the
service provider itself that their conditions of employment and length of service
would not be changed. This meeting took place on 17 February 2026.
Ironically, it was explained to them that some of the benefits at Suburban were
even better than at the respondent . But they remained unmoved in their
refusal.
[44] The COVID-19 pandemic then intervened, but when the applicants returned to
work on 25 May 2020, they were given a final opportunity to transfer to
Suburban. They however still remained steadfast in their refusal and indicated
an outright refusal to work for or take instructions from Suburban. That took
any section 197 transfer finally off the table, at the instance of the applicants
themselves.
[45] As a result, the respondent was now left with cleaning employees (the
applicants) however with no cleaning positions within which to deploy or utilize
those employees, because of the outsourcing of the entire cleaning services to
Suburban. The respondent was entitled, pursuant to its own operational
Suburban. The respondent was entitled, pursuant to its own operational
requirements and justification, to decide the outsource its cleaning functions to
a third-party cleaning service provider. As such, and because the respondent
as a result simply no longer had any work for the employees, their positions
were redundant and it was entitled and justified to retrench them.
17
[46] An example in point comes in the form of the judgment in Forecourt Express
(Pty) Ltd v SA Transport and Allied Workers Union and Another 8. On the facts
in that case, the Court identified the reason for the retrenchment of the
employees as being: 9 ‘… The second and further respondents were
dismissed because the appellant had decided to run the Fauna business in a
certain way that was different from the way that the Fauna operation had been
run before. That way of running the business was one in terms of which the
appellant did not employ drivers, did not own its own carriers, did not operate
a workshop, had to transport Daimler Chrysler's vehicles transported 'off
wheels' as required by Daimler Chrysler and used labour brokers and
subcontractors to run the business. As the vehicles were to be transported off -
wheels, convoy drivers were to have no future in the Fauna operation as
convoy drivers ’. The comparisons to the respondent’s decision in casu is
clearly apparent . Having so identified the reason for the dismissal of the
employees, the Court in Forecourt Express supra then held:
10
‘I have in effect said above that the appellant was entitled to choose the
manner in which it would run its business provided that it did not change the
terms and conditions of employment of the employees without their consent,
and provided that, if it contemplated the dismissal of the employees, it
complied with its obligations provided for in s 189 of the Act. If it is accepted
that the appellant was entitled to decide to run the Fauna operation in a way
that was different from the manner in which the Krugers had run it and was
entitled to insist on running it in the way it proposed to run it, then there can be
no doubt that a necessary consequence of such decision or choice was that it
had no work for the second and further respondents. In this case the reason
why the appellant had no work for the second and further respondents was
why the appellant had no work for the second and further respondents was
that its preferred way of running a car ferrying business necessarily entailed
that it would not employ drivers, would not own or keep carriers and would not
run a workshop. Its way of running that business entailed the use of labour
brokers, subcontractors and certain specially designed carriers which were
able, after delivering cars to their destinations, eg dealers, to collapse and
carry freight on their return trip. This way of running the appellant's business
left the second and further respondents with no work. Incontestably the fact
8 (2006) 27 ILJ 2537 (LAC).
9 Id at para 36.
10 Id at para 39.
18
that an employer has no work itself to give to workers to perform is a fair
reason to dismiss.’
[47] The reason advanced by the applicants why any transfer was not palatable to
them was because, according to them, it was a bad thing and in essence
placed their job security at risk. It was suggested that a service provider like
Suburban could easily declare them redundant and dis miss them , and they
also did not know Suburban. But none of these considerations, even
considered as they stand, can mitigate against the respondent’s right to
structure and operate its business in the manner it believes to be operationally
most favourable to it, and then change accordingly. It was never suggested
that the respondent’s decision to outsource cleaning functions was motivated
by malice or an attempt to rid itself of the applicants . No case was made out
that this was anything else other than a genui ne operational decision on the
part of the respondent, which, all considered, the applicants and Khoza were
simply unwilling to accept.
[48] This same issue was also dealt with in National Union of Mineworkers and
Others v WBHO Construction (Pty) Ltd 11 where the employer had decided,
where it came to general labour deployed on projects, to rather use TES
service providers than having a permanent general labour workforce , as it
made operational sense and was financially more prudent. The Court had the
following to say in this respect:12
‘In the end, Smit’s explanation as to why it would be prudent to use TES
employees where it came to general labour was never contradicted and as I
have already said, made sound business sense. The TES positions were
temporary and served to cater for a specific, and legitimate, business need.
This cannot serve as a legitimate basis upon which to contend that the
dismissal of the individual applicants was not for a proper reason. This ground
of substantive fairness raised by the applicants thus cannot be sustained.’
of substantive fairness raised by the applicants thus cannot be sustained.’
[49] In Khanyile and Others v Air Chefs (Pty) Ltd 13 the Court was spec ifically
seized with a situation where the employer had decided to outsource its
11 [2017] ZALCJHB 512 (13 December 2017).
12 Id at para 54.
13 [2015] ZALCJHB 238 (4 August 2015).
19
cleaning functions, as is exactly the case in casu. The decision to outsource
these functions by the employer was motivated by the fact that its cleaning unit
did not form the core of its business and outsourcing was necessary to meet
the standards set by its clients. The Court concluded:14
‘In this case therefore, in these circumstances, it is concluded that there was a
sound and valid commercial and business rationale to effect restructuring. The
outsourcing was meant for the respondent to realise the need to meet its
clients’ obligations. There is therefore no merit in the applicants’ contention
that there was no need in general, to restructure or that the respondent was
motivated by other extraneous reasons to outsource.
’
[50] Two last comparative examples bear mention. In National Union of
Metalworkers of SA and Others v John Thompson Africa 15, the nature of the
employer’s business was such that its labour requirements fluctuated in quality
and quantity. It then decided to rather outsource its labour to a labour
brokerage w hich was more efficient than having its own workforce that was
fixed.16 In this context, the Court concluded that:17 ‘… I find that there was a
commercial rationale for the outsourcing of labour. The respondent's use of
labour brokers was therefore not unfair …’. Similarly, and in Chester
Wholesale Meats (Pty) Ltd v National Industrial Workers Union of SA and
Others
18 the Court considered a case where the employer decided to close its
wholesale department, however despite this, some wholesale work would
always remain unavoidable , and for this purpose the employer would use a
labour broker. It was argued by the trade union that this was unfair, as the
employer was replacing employees with labour broker employees.19 The Court
inter alia said, in f inding a fair reason for retrenchment to exist :20 ‘… the
allegation is simply untrue. Some wholesale work remained unavoidable, and
allegation is simply untrue. Some wholesale work remained unavoidable, and
the company resolved to continue using Teamsters on an 'as and when
required' basis’.
14 Id at para 48.
15 (2002) 23 ILJ 1839 (LC).
16 See paras 304 – 305 of the judgment.
17 Id at para 310.
18 (2006) 27 ILJ 915 (LAC).
19 See para 16 of the judgment.
20 Id at para 17.
20
[51] It follows that the decision by the respondent to outsource its cleaning services
and thus its cleaning department to Suburban constituted a valid and fair
commercial rationale justifying the retrenchment of the applicants. This led to
the applicant’s positions as cleaners in the respondent becoming redundant.
The retrenchment of the applicants was thus for a fair reason relating to the
respondent’s operational requirements, and this this part of the general
question must be answered in favour of the respondent.
[52] In addition, answering the general question has a further facet. This is found in
the requirement of considering altern atives to retrenchment, even if it is
accepted that the positions of the applicants as cleaners have become
redundant. And in this regard, as touched on above, a suitable alternative was
made available to the applicants. Not only was the alternative made available
to the applicants , but the respondent in fact implored the m to accept the
alternative. This alternative, in the first instance, entailed that the applicants’
positions, work, conditions of employment, remuneration and length of service
would remain the same. In fact, the alternative even involved some better
benefits. The only change occasioned by this al ternative, which is why it had
to be accepted by the applicants, is that the identity of their employer would
change. They would no longer be employed by the respondent, but they would
be employed by Suburban going forward. From the very onset of the
retrenchment process, and throughout all the consultations , the respondent
kept urging the applicants to accept this alternative which would have avoided
their retrenchment in its entirety.
[53] But how did the applicants act where it came to this alternative? The answer is
hard to fathom. They steadfastly refused to accept it. They clearly understood,
in my view, that if they refused to accept it, they would be retrenched. But they
in my view, that if they refused to accept it, they would be retrenched. But they
pushed on, nonetheless. In adopting this course of action, the applicants acted
on the advice and instigation of Khoza. He was opposed to any notion of
transfer, per se, and made it clear that the applicants would not accept it.
Khoza and the applicants effectively urged the respondent to get on with the
process and retrench them, so that they could challenge the whole issue of
outsourcing and transfer as a legitimate reason in Court. This was an ill-
advised and patently wrong approach to have adopted.
21
[54] It was thus entirely in the applicants’ own hands to have avoided their
retrenchment. All they needed to do was accept employment at Suburban.
Even right at the end, and when they returned to work after the COVID -19
lockdown ended, they were requested to take up the offered employment with
Suburban and start working for it. They persisted in their refusal and spurned
the last opportunity afforded to them. This left the respondent with no
alternative but to retrench them. In the end, the applicants were the authors of
their own misfortune. The conduct of the applicants in this case is comparable
to the following dictum in Viljoen v Johannesburg Stock Exchange Ltd21:
‘In the end, the applicant should have applied for the new positions of
marketing manager or brand manager, or even both in an order of preference.
At the very least, she should have taken up the position of brand manager in
which she was ultimately placed as a basis of compromise by the respondent.
Her failure to do so must be fatal to her case of substantive unfairness. She
left the respondent with no choice but to retrench her, despite being in a risk -
free position to have avoided her own retrenchment.
’
[55] Therefore, and because the applicants deliberately decided to refuse to accept
the positions offered to them at Suburban , especially considering that they
were advised by Khoza throughout that this was the appropriate position to
adopt, the respondent was in my view entitled to accept, as of the last
consultation on 24 June 2020, that the applicants had finally refused to accept
offers of alternative employment. And once that is so, they only have
themselves to blame for finding themselves unemployed. As was said in
Freshmark (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration
and Others22:
‘… an employee who unreasonably refuses an offer of alternative employment
is not without fault. He has himself to blame if he subsequently finds himself
is not without fault. He has himself to blame if he subsequently finds himself
without employment and, therefore, does not deserve to be treated on the
same basis as the employee who finds himself without employment due to no
fault on his part …. Where the employer offers to continue to employ the
employee - whether in the same position but on different terms or on the same
terms but in a different position or in the same position and on the same terms
21 (2017) 38 ILJ 671 (LC) at para 84. See also Mineworkers Union/Solidarity on behalf of MacGregor v
SA National Parks (2006) 27 ILJ 818 (LC) at para 39.
22 (2003) 24 ILJ 373 (LAC) at para 24.
22
but in a different place, that is still alternative employment. It is an offer of an
alternative contract of employment
[56] The same sentiment was echoed in Latex Surgical supra 23 where the Court
said:
‘ … Accordingly, when an employer's operational requirements dictate that its
workforce should work in accordance with certain terms and conditions by
which such workforce is not bound, the employer should convey this to the
workforce and ask them to agree to work according to such terms and
conditions, negotiate with them and warn them that, if they reject such terms
and conditions, he will have to terminate their contracts of employment and
employ new employees in their place, who will accept such terms and
conditions. … If the employees reject such proposals and the employer
terminates their services, the employees cannot complain that they were not
given a chance to avoid their dismissal by accepting the new terms and
conditions of employment.
’
And in Entertainment Catering Commercial and Allied Workers Union of SA
and Others v Shoprite Checkers t/a OK Krugersdorp24 it was held as follows:
‘… where the amendment to terms and conditions of employment is proffered
by an employer as an alternative to dismissal during a bona fide retrenchment
exercise and it is a reasonable alternative based upon the employer's
operational requirements, the employer will be justified in dismissing
employees who refuse to accept the alternative on offer.’
[57] Considering the argument by the applicants in casu, being that the alternative
positions offered to the applicants would be at another employer, which they
considered to be less attractive than remaining employed at the respondent,
especially where it comes to their own articulated concerns about job security,
the judgment in Forecourt Express supra again comes into play. The facts in
that judgment have been set out earlier, and the Court ultimately decided, in
that judgment have been set out earlier, and the Court ultimately decided, in
circumstances where it was argued that the alternative positions at a third
party were less attractive to the employees, as follows:25
23 Id at para 69.
24 (2000) 21 ILJ 1347 (LC) at para 28.
25 Id at para 41.
23
‘There was an attempt to say that an offer of employment with a labour broker
was not such an attractive idea because the employment would have entailed
that the employees work only on the days when the labour broker had work for
them. It was suggested by Monyela that employment by a labour broker would
have meant that employees would on some days have spent money to travel
from the townships to work and found that they were turned away on the basis
that there was no work on those days. This may well have been so but the fact
of the matter is that, if the appellant was in law entitled to use a labour broker -
and it was not the respondents' case that the use of a labour broker in this
case was unfair - there is nothing that could be done about such an
eventuality. It is interesting that Monyela testified as he did in regard to the
second and respondents' attitude to employment by the labour brokers and
subcontractors and yet in their letter of 17 September 1999 addressed to the
appellant the second and further respondents' attorneys actually wrote, among
other things, that the second and further respondents were entitled to be
transferred to the employment of the labour brokers and, I assume,
subcontractors. In my view the second and further respondents' loss of income
arose out of their refusal of the offer of employment by the subcontractor and
labour broker and not from their dismissal. It seems to me that the second and
further respondents are, in this regard, the authors of their own misfortune …
’
[58] The judgment in Khanyile supra is equally apposite where it comes to the facts
in casu. Again, and as already summarized above, the employees concerned
refused to accept alternative positions with a contract cleaning service
provider, when that function had been outsourced. 26 The Court had the
following to say in this respect:27
‘In the light of the consultations with UPUSA and the employees, the various
‘In the light of the consultations with UPUSA and the employees, the various
alternatives offered to the employees, and further in the light of the
unreasonable rejection of each and every alternative that the respondent had
come up with, it cannot in these circumstances be said that the retrenchments
as a consequence of outsourcing of the cleaning unit were substantively
unfair. It is trite that an employee who unreasonably refuses to consider
available options to a retrenchment cannot claim unfair treatment if the
employer ultimately retrenches him or her. In the end the decision to dismiss
26 See para 60 of the judgment.
27 Id at para 61.
24
the applicants was operationally justifiable on rational grounds as it was
suitably linked to the respondent’s achievement of the end goal for rational
reasons.’
[59] In summary, the applicants were offered suitable alternative positions with
Suburban, on the same terms and conditions of employment and doing the
same work. They deliberately refused to accept such alternatives . As such,
they exposed themselves to retrenchment, and this part of the general
questions falls to be decided in favour of the respondent as well.
[60] Having proper consideration to the aforesaid, answering the specific question
in reality does not even come into play. This is because the entire cleaning
department was outsourced, and there was no selection between employees
that would remain employed. The proces s adopted by the respondent sought
to avoid retrenchment in the form of providing alternatives . Selection would
only really come into the equation if all the affected employees cannot be
accommodated in alternative positions, and a selection exercise must be
carried out between them to decide who should be retrenched. In this case,
this was not an issue as all the applicants would be placed in employment at
Suburban. As explained in Louw supra28: ‘… Being required to compete for
such a post is not a method of selecting for dismissal; rather it is a legitimate
method of seeking to avoid the need to dismiss a dislocated employee … ’.
Because of this, the issue of fair selection criteria cannot be in issue. In simple
terms, the very objective was to avoid the dismissal of all the cleaning
department employees whose positions had become redundant due to the
outsourcing of the cleaning services to Suburban, and that selection for
retrenchment would only be considered once this avenue was unsuccessfully
exhausted. In this context, the Court in Louw supra
29 had the following to say:
‘… Axiomatically, an incumbent of a redundant post is not automatically
‘… Axiomatically, an incumbent of a redundant post is not automatically
dismissed; that person is merely dislocated and only after the opportunities to
relocate that person in another suitable post have been explored and
exhausted, may they be fairly dismissed … ’
28 Id at para 22.
29 Id at para 19.
25
[61] In sum, there can be little doubt that the dismissal of the applicants was
substantively fair. This is because it is founded upon the proper and legitimate
operational requirements of the respondent, and was thus for a fair reason.
The entire cleaning department in the respondent was outsourced to a third-
party specialist service provider, being Suburban, which led to the cleaning
department in the respondent itself ceasing to exist and the applicants’
positions as cleaners becoming redundant as a result . Despite this, the
respondent had secured that all the applicants be transferred to Suburban on
the same terms and conditions of employment with length of service intact,
which was on multiple occasions throughout the process made available to the
applicants to accept. The applicants continuously and deliberately refused to
accept the alternatives , without proper and justified reason, despite clearly
knowing what the consequences thereof would be to their continued
employment with the respondent . In the end, they invited retrenchment, which
must be substantively fair.
Analysis: Procedural Fairness
[62] In the statement of claim, the applicants raised a number of grounds upon
which it was said that their dismissal was procedurally unfair. It is contended
that the respondent was aware that they were members of HICRAWU,
however the respondent failed to notify such union of the retrenchment
process and invite it to the consultations . It is also said that the applicants
were only orally informed of furt her meeting dates and received no written
invitations. They also take issue with selection criteria, however this appears
to rather be an issue of substantive unfairness, and has been dealt with
above.
[63] Despite all the applicant’s procedural complaints, there is however in my view
a simple and straight forward answer to any complaint by the applicants of
procedural unfairness. This answer is found in the fact that the applicant s
procedural unfairness. This answer is found in the fact that the applicant s
could have avoided their retrenchment by simply accepting the alternative
positions that were actually available to them . As fully discussed above, these
were proper alternative positions which the applicant s could readily and
without reservation fill, and would leave their salary, benefits and length of
service unchanged. All this being so , any case of procedural unfairness is of
26
no consequence, even if it existed, as the applicant s could and should have
avoided their own retrenchment.
[64] In Arthur Kaplan Jewellery (Pty) Ltd v Van De Venter 30 the LAC dealt with an
appeal against a finding of procedural unfairness by the Labour Court in an
instance where the employer indeed failed to consult as contemplated by
Section 189. The Court said: 31 ‘Appellant’s failure to so consult is not,
however, determinative of the dispute. The key issue concerns appellant’s
subsequent conduct. … ’. The Court concluded as follows, in finding the
dismissal to be nonetheless fair:
32
‘In my view, the evidence is compelling that the alternatives which were
proposed to respondent were reasonable and that she did not provide
sufficient justification as to the reasons for refusing to accept one of these
alternative positions. Accordingly, appellant acted neither substantively nor
procedurally unfairly in the manner in which respondent was ultimately
retrenched. On these facts it is therefore clear that even though the appellant
may have acted unfairly in not consulting respondent about the closing down
of the training department, such unfairness did not lead to her losing
employment with appellant. She lost employment with appellant because she
failed, without any justification, to accept one of the jobs offered to her by
appellant and for that, she only has herself to blame.
’
[65] In Fidelity Springbok Security Services (Pty) Ltd v SATAWU obo Chabalala
and 7 Others 33 the LAC adopted a similar view and said the following,
specifically referring to the refusal of an offer of alternative employment in the
context of an allegation of unfair retrenchment:
‘… the dismissed employees did not accept this offer. If they had accepted it,
the dismissed employees would not have been dismissed and there would
have been no claim for unfair dismissal. They are the authors of their own
misfortune and should not complain. Even if there may have been unfairness
misfortune and should not complain. Even if there may have been unfairness
in the way in which the appellant handled the consultation process or any
30 [2006] ZALAC 7 (21 February 2006).
31 Id at para 11.
32 Id at para 18.
33 Unreported LAC case no JA 14 / 2004 dated 28 February 2006.
27
aspect of the matter prior to that offer, such unfairness would not have been in
issue if they accepted the job offer.”
[66] The Court in SA Transport and Allied Workers Union on behalf of Dube and
Others v Fidelity Supercare Cleaning Services Group (Pty) Ltd 34 specifically
applied what had been said in Arthur Kaplan supra and Chabalala supra, and
held:
‘… When the respondent considered the alternatives, and an opportunity was
offered to her, Dube never applied for a position under the new Wits contract
and instead sought and pursued a disability benefit. I find that Dube could
have avoided her own dismissal by applying for a position as supervisor on
the new Wits contract. In this regard, the undisputed evidence of Croukamp
was that if Dube had applied for a position, Croukamp would have given her a
position. In fact, Croukamp pursued Dube to enquire why she had not applied
for a position, and it was then that Dube expressed her wish to seek a
disability benefit. Because of these critical considerations, the issue of
procedural fairness is actually of no consequence, as the respondent did not
want to dismiss Dube and it was within her own power to avoid her dismissal.
’
And in Viljoen supra the Court applied the same approach, and decided:35
‘Accordingly, and because the applicant could have avoided her own
retrenchment by simply accepting what was on the table or applying for the
positions she could have been placed in, she simply cannot be seen to now
complain about procedural unfairness, even if it is accepted that the
respondent did not properly consult with her on the basis she is contending to
be the case. Her retrenchment must nonetheless be considered to be fair.
That should be the end of the case of procedural unfairness raised by the
applicant.
’
[67] Even c onsidering the case as pleaded by the applicants , there is no
contention that the applicants were not properly consulted as contemplated by
contention that the applicants were not properly consulted as contemplated by
the LRA in the consultations that were held on 2, 10, 17 and 24 June 2020.
But when giving evidence, Raseroka sought to suggest that the consultations
were not consultations a t all, but simply informative meetings. I have earlier
34 (2015) 36 ILJ 1923 (LC) at para 60. See also Schatz v Elliott International (Pty) Ltd and Another
(2008) 29 ILJ 2286 (LC) at para 56.
35 Id at para 96.
28
indicated my doubts as to Raseroka’s credibility. Nonetheless, t he difficulty
with advancing such a case in evidence is that the case was nev er pleaded,
nor raised as a ground of unfairness, either in the statement of claim or in the
pre-trial minute. It is thus not permissible for the applicants to raise such a
case in evidence. In any event, this contention by the applicants flies in the
face of the effectively undisputed minutes prepared by Sewpersad, and I find
no reason not to accept the evidence by Sewpersad about what transpired in
the consultations and that these were proper consultations under the LRA. In
fact, and when Sewpersad was cross examined, he was not challenged on the
contents of the minutes he had made.36
[68] But one important fact did emerge from the undisputed evidence about what
featured in each and very consultation. That fea ture was that the applicants
were pertinently asked to accept the alternative positions at Suburban and
they consistently refused to do so as a matter of principle. There was in reality
thus nothing else to discuss. The respondent made an entirely suitable option
available to the applicants to avoid their retrenchment, the terms of which they
were fully aware of. Considering the clear position adopted by the applicants ,
no amount of consultation on the core decision of the respondent was going to
change their mind. They were informed in their decision making by the direct
advice from Khoza as their union representative. Once all of this is the case, it
simply cannot be said that the applicants were not fairly consulted. I again
refer to Khanyile supra where it comes to the conduct of the applicants (as
advised by Khoza) as summarized as aforesaid, and I consider the following
dicta from that judgment to be quite apposite in casu:37
‘An employer cannot be held to have acted unfairly in circumstances where
the employees and the union’s approach to the consultation process is erratic,
the employees and the union’s approach to the consultation process is erratic,
unreasonable and not in the spirit of finding common solutions. In these
circumstances, where the purpose of section 189 of the LRA, which is a joint
consensus-seeking process has not been achieve, this cannot be blamed on
the respondent. In the light of the dictum in Johnson & Johnson, if the
employer was not at fault and did all it could, from its side, to achieve
36 I may add that in is testimony, Raseroka was asked if the minutes of Sewpersad was a true
reflection of what transpired in the consultations, and he answered that he could not remember.
37 Id at paras 71 – 72.
29
consensus seeking, the purpose of the section would also have been
achieved.
UPUSA’s approach to the consultation process was detrimental to the
applicants, and I have no hesitation in concluding that it simply went through
the entire process with no intention whatsoever of ever genuinely reaching
agreement on the issues discussed with the respondent … ’
[69] I will also touch on the applicants ’ ground of procedural unfairness that their
trade union was not notifiedof nor invited to the consultations. First and
foremost, in this regard, and at trail, it was not even proven that the applicants
were members of HICRAWU at the time when the event s in this matter took
place. No trade union membership form s were produced. Goosen’s evidence
that there were no records at the respondent indicating the applicants were
union members was not contradicted. And when the applicants themselves
were presented with the section 189(3) notice on 28 M ay 2020, they never
claimed that they were union members and their union needed to be
consulted.
[70] Nonetheless, and on the evidence, it appears undisputed that the applicants
did immediately take the section 189(3) notice to Khoza, who was then familiar
with the contents thereof. But still Khoza made no attempt to engage the
respondent. As touched on earlier, Khoza explained this by saying that the
section 189(3) notice recorded that no outside representation would be
allowed, and thus he accepted that the trade union would be excluded. Whilst
it is true that the notice records ‘… this is an internal matter and thus no
external representation will be allowed … ’, I have little hesitation in rejecting
this purported justification by Khoza for not becoming involved in the
consultation process as being contrived. Surely Khoza, as a union official,
would know that a union is entitled to represent employees that are its
members in retrenchment consultations, by virtue of section 189(1) of the
members in retrenchment consultations, by virtue of section 189(1) of the
LRA, and I find it quite bizarre that he would simply receive the section 189(3)
notice and then decide to not even try and contact the respondent based on
what he purportedly reads in the notice. I would have expected him to
announce himself to the respondent, claim representation of the applicants ,
and demand that he be consulted. My experience is that this is exactly what
unions almost always do. Further, and when contriving this explanation, Khoza
30
does not read the whole section 189(3) notice, which further records: ‘… It
should be emphasized that no final decision has been taken in this regard nor
will any final decision be taken in absence of sull and proper consultation with
you and / or you Union representative (if applicable) … ’ (emphasis added)’.
[71] I believe that Khoza deliberately decided not to participate in the proceedings.
The reason for this is quite clear , in that there was already a meeting between
himself, Sewpersad and Goosen on 31 January 2020, before the retrenchment
process even started, in which meeting he made it clear that he and the
applicants were never going to agree to and accept the outsourcing as a
matter of principle, the applicants would never transfer to Subur ban, and that
they would challenge this decision. He had no intention of consulting with the
respondent. It was either insourcing, as he called it, or bust.
[72] Then there is the evidence of Sewpersad, which I believe should be preferred .
He made it clear that he was not aware that the applicants were members of
any trade union. It was common cause that there was no trade union
recognised in the respondent beforehand. Sewpersad explained that he
thought Khoza was a lawyer, which seems to be confirmed by the fact that the
only formal opposition to the proposed transfer ever received by the
respondent emanated from attorneys, and not any trade union. Sewpersad,
who drafted the section 189(3) notice, explained that the reference to external
representation meant legal representation, and not union representation.
Raseroka on his own version never testified that the applicants had at any
stage indicated to Sewpersad that they were members of HICRAWU and
required the respondent to consult with such union on their behalf. However,
Sewpersad actually called Khoza due to the request made by the applicants in
the consultation on 10 June 2020, and Khoza stated that he had no intention
the consultation on 10 June 2020, and Khoza stated that he had no intention
of participating in the process and would challenge it later. Khoza denied this
telephone call fr om Sewpersad, but I do not believe this denial is truthful .
Generally, Khoza was not a credible witness and Raseroka confirmed that the
applicants did ask Sewpersad to call Khoza , as testified by Sewpersad to be
the case. So why would Sewpersad, who was specifically tasked to facilitate
the process, not oblige.
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[73] All the above being the case, can it be said that the respondent’s decision,
and subsequent course of action, was genuine and pursuant to proper
operational reasons? In my view, no doubt, considering what happened in the
consultation process as a whole. As the Court said in Latex Surgical:38
‘The function of the court in scrutinizing the consultation process is not to
second guess the commercial or business efficacy of the employer's ultimate
decision but to pass judgment on whether such a decision was genuine and
not merely a sham. The court's function is not to decide whether the employer
made the best decision under the circumstances, but only whether it was a
rational commercial or operational decision, properly taking into account what
emerged during the consultation process.’
[74] For all the reasons as set out above, I am satisfied that the dismissal of the
applicants by the respondent was also procedurally fair. This is because any
contention of an unfair consultation process has no consequence, as the
respondent throughout the entire process sought to impress on the applicants
that proper and suitable alternative positions were available, however they
simply without proper cause or reason refused to accept the same. They were
poorly advised by Khoza in this respect. There would never have been any
retrenchment if these alternatives were accepted. As such, the objectives of
section 189 were met.
Conclusion
[75] In conclusion, it is my view that the applicants’ dismissal by the respondent for
operational requirements is both substantively and procedurally fair . The
applicants’ unfair dismissal claim thus falls to be dismissed.
Costs
[76] As to costs, I accept that in terms of section 162(1) of the LRA I have a wide
discretion in this regard. I must say that I believe the applicants have been
poorly advised and let down by Khoza. However, it must also be considered
that they only have themselves to blame for having been left unemployed. But
that they only have themselves to blame for having been left unemployed. But
38 Id at para 18(i). See also SA Clothing and Textile Workers Union and Others v Discreto - A Division
of Trump and Springbok Holdings (1998) 19 ILJ 1451 (LAC) at para 8.
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I do not believe the applicants themselves were malicious or mala fide in
pursuing this matter or acting as they did. The reality is that they lost their jobs
due to circumstances beyond their control in an environment where jobs are
already scarce. It is my view that a costs order against the applicants, all
considered, would not be appropriate. I consider it fair and justified that no
order as to costs be made.
[77] For all of the reasons as set out above, I make the following order:
Order
1. The applicants’ dismissal by the respondent is substantively and
procedurally fair.
2. The applicants’ claim is consequently dismissed.
3. There is no order as to costs.
____________________
S Snyman
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicants: Mr W Khoza of HICRAWU (Trade Union)
For the Respondent: Advocate T Odendaal
Instructed by: Couzyn Hertzog & Horak Attorneys