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[2026] ZALCJHB 276
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National Union of Metalworkers of South Africa obo Lebese and Others v Sodexo Southern Africa (Pty) Ltd (JS496/2021) [2026] ZALCJHB 276 (31 August 2026)
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THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
Case:
JS 496/2021
In
the matter between:
NATIONAL
UNION OF
METALWORKERS
OF SOUTH AFRICA obo L LEBESE & 6 OTHERS
Applicant/Plaintiff
and
SODEXO
SOUTHERN AFRICA (PTY)
LTD
Respondent/Defendant
Summary:
(Dismissal for operational reasons –
Court not having jurisdiction over procedural fairness of dismissal -
dismissal substantively
unfair –
Section 189(7)(b) of
the LRA – ILO Recommendation 166 -
employer
failing to show that LIFO with horizontal bumping would have caused
material disruption to operations – reinstatement
not
reasonably practicable – compensation awarded)
JUDGMENT
LAGRANGE
J
Introduction
[1]
This matter originally concerned the alleged
substantively and procedurally unfair retrenchment of certain members
of the union,
NUMSA by the respondent (‘Sodexo’) in 2021.
NUMSA is the applicant and is acting on behalf of the members
concerned.
[2]
Evidence for the employer was given by Ms A
Makhubela (‘Makhubela’), the HR manager, and the
employer’s attorney
Mr K McAdam (‘McAdam’), who had
represented the employer during retrenchment consultations. Evidence
for the applicants
was given by Mr S Mabasa (‘Mabasa’), a
union organizer attached to NUMSA’s head office, and Mr S
Sibiya (‘Sibiya’),
one of the retrenched employees.
The union's locus standi
to represent the employees
[3]
At the commencement of the trial
proceedings, the employer raised an
in
limine
objection to the union's locus
standi to represent the individual members. It was contended that
because the type of work in which
the individual members were engaged
allegedly made them ineligible to be union members in terms of the
membership provisions of
the union's constitution that the union
could not represent them in these proceedings. After hearing the
argument, the objection
was dismissed, and the trial proceeded. The
following reasons were given
ex tempore
for the ruling.
[4]
Essentially,
the objection was dismissed on the basis that the union was entitled
to represent its members in these proceedings
following the authority
of the Labour Appeal Court decision in
MacDonald's
Transport Upington (Pty) Ltd v Association of Mineworkers &
Construction Union & others
(2016) 37
ILJ
2593 (LAC), in
which
it held that when it came to the question of a union representing
employees, the union membership status of those employees
was a
matter between the union and the individuals and the employer had no
legal right to challenge their membership status
[1]
.
The LAC matter is distinguishable from the situation the
Constitutional Court in the case of
National
Union of Metalworkers of SA v Lufil Packaging (Isithebe) (A Division
of Bidvest Paperplus (Pty) Ltd) & others
(2020)
41
ILJ
1846 (CC) on which the employer relied.
Lufil
concerned
the union's entitlement to organisational rights under Chapter III of
the Labour Relations Act, 66 of 1995 (‘the
LRA’), in
which the union membership status of employees was central to the
determination of whether organisational rights
should be awarded to
the union.
Second Jurisdictional
Issue: Section 189A status of the retrenchments
[5]
The pleaded case is that the retrenchments
were both procedurally and substantively unfair. During the hearing
of evidence, the
court raised the question whether the dispute fell
under the ambit of s 189A as a so-called ‘large-scale’
retrenchment.
As the leading of evidence was at an advanced
stage, the parties were invited to file affidavits and written
submissions on this
question, to be decided after the oral evidence
had been concluded. By agreement, an interlocutory order to this
effect was issued
on 2 November 2023.
[6]
On 28 June 2024 an interlocutory ruling,
with reasons, was issued. The ruling determined that the
retrenchments fell within the
ambit of section 189A, and accordingly,
the applicants could not pursue a claim of procedural fairness.
[7]
Accordingly, this judgment only deals with
the substantive fairness of the dismissals.
Background events leading
to the retrenchments
[8]
To contextualise the dispute, a brief
background of events is useful
[9]
The employer, a multinational company, is
in the business of facility management. One of its clients was
Procter & Gamble (‘P&G’),
another multinational.
The employer had been providing staff to perform various functions in
different departments of P&G,
such as catering and cleaning for
approximately ten years.
[10]
In April 2018, Sodexo engaged a number of
new staff, including the applicants, to perform functions in
so-called ‘end of line'
(EOL) operations of P&G. They were
recruited to perform this work because of an extension of the type of
services the employer
provided to P&G, namely EOL functions.
Before they were assigned to perform their duties at P&G, they
spent a couple of
months working for Sodexo, after which they started
working at P&G, where they received training to enable them to
perform
their EOL roles. The applicants were allocated work in the
EOL splicing department of P&G from August 2018 where they
received
further training of two or three weeks according to MA.
[11]
The majority of fixed-term contract
employees and permanent employees assigned to work in EOL services of
P&G were employed
by Sodexo
after
the applicants were employed. According
to Mabaso, about 90 % of those employed after the group employed in
April 2018, were general
workers. He was not challenged on this
estimate.
[12]
Towards the end of September 2020, P&G
gave notice to the employer to terminate the contract under which
staff were engaged
in the splicing department as P&G was going to
perform that work in-house. The contract would terminate on 22
October 2020.
Once work in the splicing department ended, the
employees who had been working there were assigned to other work,
filling in for
absentee employees, to keep them busy as they were
still being paid while the consultation process with the union was
supposed
to be taking place.
[13]
Makhubela claimed the union had been sent a
Section 189A notice on 18 September 2020. She found support for this
in a reference
to such a letter contained in the letter from the
firm’s attorneys on 25 November 2020, in which it confirmed the
withdrawal
of the CCMA referral and invited the union to
consultations under s 189A of the LRA.
[14]
On 1 October 2020, the employer issued
workers engaged in the splicing department of P&G with a notice
entitled “In Compliance
With Sections 189 And 189A Of The Labor
Relations Act”. It notified them of the termination of the
splicing function at P&G
which would take effect on 22 October
2020. It further advised that it contemplated retrenchments as a
result of that decision.
It identified three measures it considered
as alternatives before proposing dismissal:
“
[a]
The company will endeavour to redeploy your services to other
business units subject to the availability of suitable vacancies.
[b] Appointment to the
alternative positions will be based on the candidate meeting the
minimum competency requirements of the position.
[c ] The company will
however consider any proposals received from you as an alternative to
the proposed retrenchment. You are required
to consider alternatives
and submit same at the follow up meeting as scheduled below.”
[15]
The notice identified 16 employees who were
likely to be affected by any possible retrenchment. These were all
the Sodexo employees
engaged in the splicing department. The notice
envisaged that any retrenchments would take place within 60 days and
the recipients
were invited to attend a facilitation session at the
CCMA. The employees contacted the union via their shop
stewards. Mabasa
advised them that the notice should have been issued
to the union in terms of section 189 of the LRA.
[16]
As mentioned, Makhubela claimed that firm
had notified the union at the end of September, but Mabasa denied
having received such
a notice and claimed he had queried the
company's failure to address the notice to the union in an e-mail,
but did not receive
a response. Subsequently, he attended the s 189A
facilitation meeting scheduled held on 17 November 2020. He testified
that he
had raised the failure of the firm to notify the union with
the CCMA commissioner and this led to the firm withdrawing the
section
189A referral. McAdam testified that the firm was of the view
that because notices had been given to the applicants, which included
shop stewards, the union had received the notice at that time.
Nevertheless, the withdrawal was confirmed in a letter from
the
firm's attorneys on 25 November 2020, which also advised that the
attorneys had been instructed to invite the union to consult
with it
under section 189A of the LRA.
[17]
The first consultation meeting was
scheduled for 4 December 25 November, but was postponed at the
employer's request to 11 December.
At that meeting, the union made a
number of proposals. It proposed increasing any severance pay at
four weeks’ pay
per year of service and treating any period of
service of six months or more as a year. As an alternative to
retrenching the employees
in the splicing section, it was proposed
that LIFO should be applied across the board to all employees of
Sodexo working for P&G.
Further, it was suggested that fixed-term
contract employees should the retrenched before permanent employees
were retrenched.
In this regard, the union asked for a list of the
147 permanent employees and the 36 casual, or fixed term employees.
The lists
were provided.
[18]
Makhubela agreed that the majority of both
categories of employees who were assigned to work at P&G were
employed after 2018.
A meeting scheduled near the end of December
2018 did not take place owing to the employer’s representative
needing to obtain
a mandate.
[19]
Makhubela testified that the firm conveyed
to the union that it could not replace fixed term contract employees
with permanent employees,
because the fixed term contracts were due
to expire. Other permanent employees were performing different EOL
services. The applicants
were selected for retrenchment on the basis
that they worked in the splicing section, and P&G no longer
required their services
following the termination of Sodexo’s
contract with P&G to supply workers for that department. For this
reason, the firm
regarded LIFO as ‘irrelevant’. McAdam
also testified that the ‘scope of the retrenchment was narrow’.
It
was confined to employees in the splicing department, which had
nothing to do with the rest of the employees working at P&G.
[20]
Makhubela testified that three months after
the applicants’ retrenchment, there were no longer any
fixed-term contract working
at P&G because P&G terminated all
the remaining EOL services which Sodexo’s staff had fulfilled.
She also testified
that within two years of the dismissal Sodexo’s
contracts with P&G were terminated and a new firm replaced Sodexo
as
a provider of labour services.
[21]
The next meeting that took place was at
09h00 on Friday 29 January 2021. At 19h55 the previous evening the
company sent the union
a draft settlement agreement. Essentially, the
agreement differed from the company’s original wishes by
increasing the severance
pay to two weeks’ pay per year of
service. The effective date of termination was stipulated as 1
February 2021, but with
payment of notice pay. McAdam said he told
Mabasa that they had reached a point where either the company would
issue notices of
retrenchment or the parties should conclude the
settlement agreement.
[22]
There is some controversy about what
transpired at the meeting that Friday morning. Makhubela said
that they asked the union
to revert to the firm by close of business
that day. She did not concede that Mabasa said he needed to obtain a
mandate from his
members, but only that he said he needed to ‘hear
from’ his members. Makhubela testified that the company was
anxious
to wrap the process up, otherwise the firm would have to
continue to employ the applicants while the consultations carried on.
As far as the firm was concerned, consultations had gone on long
enough. When there was no response received from NUMSA by the end
of
that day, the applicants’ services were terminated by SMSs sent
on 30 January 2021.
[23]
Mabasa testified that he requested to be
given an opportunity to meet with the applicants on Saturday 30
January and revert to the
company by Monday 1 February 2021.
[24]
Makhubela claimed the applicants could not
be placed in other P&G departments because they had always worked
in the splicing
section. She could not demonstrate that the
applicants’ contracts of employment were any different from the
other EOL general
workers employed by Sodexo. She also testified that
the splicing department workers could not be placed in the shoes of
fixed term
contract employees as their services were coming to an end
too. She could not give an exact date when that happened, but said
there
were no fixed term contract employees by the end of 2021. There
was no evidence led to suggest the other permanent Sodexo staff
at
P&G had their services terminated at any stage.
[25]
Both Makhubela and McAdam testified that a
couple of years later Sodexo’s remaining contracts with P&G
were transferred
to another labour service provider and there was no
longer any connection between Sodexo and P&G.
[26]
Apart from splicing, the other Sodexo
workers assigned to EOL work were working in packing and waste
departments of P&G. Makhubela
disputed the suggestion that if the
employer had engaged with the union more, other alternatives to
retrenching the applicants
could have been found. Her response was
that other employees at P&G were not working in the splicing
section. When asked if
other EOL general workers who were employed
after
the
applicants could have been considered for retrenchment instead, she
gave the same response.
[27]
Another area of controversy was SMS
messages sent to the applicants notifying them of their termination.
Makhubela thought
they were sent out on Sunday 31 January 2021, but
the applicants maintained that they received them before the union
could obtain
a mandate from them on the settlement agreement
proposal. However, in the union’s statement of claim it was
alleged that
the union only heard of the SMS’s sent to members
on Monday, 1 February 2021 and not before FM could meet with workers
on
Saturday 30 January.
[28]
The crux of the dispute before the court
concerns the fairness of the selection of retrenchees. In the
evidence of both Makhubela
and McAdam they both stressed that the
basis of the selection was dictated by the redundancy of the whole
compliment of staff working
in the splicing department caused by the
termination of the contract to supply staff for that department. As
McAdam put it, it
was an operational decision based on the splicing
decision which had nothing to do with rest of the P&G work done
by Sodexo.
This made the scope of the retrenchment narrow. Sodexo saw
the scope of the retrenchment exercise as coinciding with and
confined
to the work area where the redundancy arose.
[29]
In answer to the union’s suggestion
that the splicing staff could have taken the positions of other
Sodexo employees performing
work at P&G, the response was
two-fold: the splicing staff were unsuited to other general work
because they had become specialized
and they could not place
permanent staff in fixed-term contract positions which were due to
terminate in a few months.
[30]
As far as the consultation process went, it
was limited and the parties might have benefitted from more
engagement. Be that as it
may the narrow dispute here concerns the
selection criteria adopted.
Contesting versions on
the substantive fairness of the dismissals
NUMSA’s submissions
[31]
NUMSA argued that the retrenchment was
substantively unfair on the grounds that dismissal was not a measure
of last resort, the
selection criteria were impermissibly narrow, and
a genuine operational rationale across the business did not exist.
[32]
Relying on
NUM
v Black Mountain Mining (Pty) Ltd
, the
union argued that retrenchment must be an operational last resort.
The employer failed to establish a justifiable rationale
for refusing
to terminate fixed term contract employees before dismissing
permanent employees or should have applied LIFO to select
candidates
for retrenchment from across the entire Sodexo workforce engaged at
P&G, which comprised both fixed term contract
employees and
permanent employees.
[33]
The union contended that restricting
selection strictly to the splicing department was arbitrary. The
splicing employees were originally
designated as end-of-line general
workers and had the ability to do that type of work. NUMSA proposed
applying LIFO company-wide
or across general workers, which Sodexo
rejected without valid operational justification.
[34]
NUMSA pointed out that employee list
disclosed by Sodexo, proved that the business engaged 36 casual
employees and 147 permanent
employees, including junior permanent
workers employed
after
the applicants in 2018 who were retained. This was not disputed.
[35]
The individual applicants relied on the
concession made by Makhubela during cross-examination that Sodexo's
broader service contract
with P&G continued after their own
dismissals, and other general workers (both permanent and fixed-term)
continued performing
work on the same client site after the
applicants were retrenched.
[36]
The union relied on the testimony of Sibiya
and the initial employment records which demonstrated that the
workers were recruited
as general workers, contradicting the
employer’s claim of specialized, non-transferable roles.
Sodexo’s argument
[37]
Sodexo contended that the retrenchments
were fully operationally justified, rational, and substantively fair.
[38]
The operational requirement was directly
precipitated by P&G terminating the splicing service contract to
insource the function,
entirely eliminating the splicing department.
[39]
Citing
Yeko v
Red Mining South Deep (Pty) Ltd
, Sodexo
argued that splicing department staff had acquired distinct
operational skills involving specific machinery, forklifts,
and
specialized equipment. Consequently, they were not interchangeable
with general end-of-line workers in other departments, making
cross-departmental LIFO inappropriate and unworkable.
[40]
The employer heavily relied on the
cross-examination and re-examination of NUMSA's own witness, Mr.
Sibiya, who conceded under oath
that he was strictly employed in the
splicing department and could not perform work in other departments.
As mentioned elsewhere,
he also testified that he was initially
trained as an EOL general worker, so his testimony in this regard is
equivocal.
[41]
Sodexo argued that fixed-term employees
could not simply be substituted with permanent splicing staff.
Furthermore, the company
demonstrated that all fixed-term contracts
at the P&G site were allowed to lapse without renewal, meaning no
temporary workers
remained at the site by the end of 2021
[42]
Sodexo argued it genuinely considered the
union's input, which it demonstrated by it amending its offering by
enhancing the severance
package in the draft settlement agreement.
Because the business could not absorb the wage cost of an obsolete
department into yet
another payroll month, that is February 202,
while discussions were going nowhere, retrenching the redundant unit
was an operationally
rational decision.
Evaluation
[43]
The unilateral termination of Sodexo’s contract with P&G to
supply workers to work in its splicing operation
meant, on any
calculation, that the total complement of Sodexo staff required by
P&G had fallen by the number employed in that
section. NUMSA did
not dispute the general need to reduce the complement of Sodexo
employees working for Sodexo on account of P&G’s
termination of the labour contract connected with the splicing
department.
[44]
Where the parties differ, is whether it was fair to simply retrench
those whose work at P&G had come to an end, or
whether Sodexo
should first retrench other workers engaged in P&G work who were
employed by Sodexo after the group engaged
in splicing work.
[45]
The thrust of the union’s proposals was that fixed-contract
employees of Sodexo working as general workers at P&G,
more
particularly those who had been employed after those working in the
splicing department, should have been the first selected
for
retrenchment and the workers engaged in the splicing department could
take their place. Such a selection would also satisfy
LIFO as a
selection criterion. More broadly, NUMSA had proposed that permanent
Sodexo workers in other departments with shorter
service than the
permanent workers in the splicing department should be replaced by
the splicing department employees. Although
the term was not used,
the union was effectively referring to LIFO across the board, which
would entail ‘bumping’ out
employees in other
departments.
[46]
Sodexo
rejected this on the basis that the workers in the splicing
department had become specialised and could not perform general
worker tasks. Sodexo insisted that the redundancy did not affect
other Sodexo employee who were working in other departments of
P&G
and there was no reason to include them in the pool of affected
employees. In effect it took the view that the department
in which
redundancy arose also circumscribed the scope of any retrenchment
discussions. On the question of the substitutability
of the splicing
workers for other Sodexo workers performing general work, Sodexo
argued that the situation was analogous to that
in
Yeko
v Red Mining South Deep (Pty) Ltd
[2]
.
In support of its argument, it cited the following extract from the
judgment:
‘
[20]…Red
Mining was faced with operational requirements (loss of business),
which justifies the fairness of the dismissal
of Yeko and others. It
can only justify the dismissal of Yeko using those operational
requirements. There was nothing that would
have saved the dismissal
of Yeko. The rail contract ended, inevitably, the employment of
Yeko had to end.
[21] With regard to
the selection of Yeko and application of LIFO, the contention
of Red Mining is that the employees that
Yeko compares himself with
were employed in another shaft, which was unrelated to the rail
contract. That project required different
skills and at the time of
the dismissal of Yeko, there were no vacancies in that project. It
would not have been possible to apply
LIFO in respect of the rail
contract because everyone was terminated. Yeko was employed in that
contract and not the other contract
that required mining skills as
opposed to engineering skills’
[47]
In this case however, as NUMSA pointed out, the workers assigned to
splicing work were originally engaged as general
workers and
performed general work from their employment in April 2018 until they
were assigned to work in the splicing department
in August that year.
Moreover, in the period following the termination of the splicing
work in October 2020, they were used to
fill in for other workers who
were absent until their retrenchment at the end of January 2021.
[48]
Sodexo argued that the evidence of Sibiya, who was one of the workers
in the splicing department who was retrenched,
supported its version
that he could not do other work in other departments. Sibiya even
testified that he worked in the splicing
department from November
2020 until he was retrenched in January 2021. However, that
simply could not have been possible
because all Sodexo workers in the
splicing department ceased working there on 22 October 2020 in
accordance with the termination
of P&G contract with
Sodexo. Later when he was asked about testimony that from April to
August 2018, he was not in the
splicing department, he said that was
true. Earlier under re-examination he confirmed that he started in
April 2018 and was underwent
training as an EOL general worker before
moving to the splicing department in late 2018.
[49]
In any event, it appears to have been common cause that most, if not
all, of the workers who were working in the splicing
department began
working at P&G and were trained as general workers in EOL tasks,
before being moved to the splicing department
to perform more
specialised work. Moreover, there was no dispute that the sixteen
affected employees who had worked in splicing
were used, after their
removal from the splicing department, as replacements for workers in
other departments who were absent for
one reason or another.
[50]
In
Yeko’s
case, the alternative jobs were ones that
specifically required mining skills which he did not have. In this
case, the affected
employees had done general work before and there
was no suggestion that general work in other departments required
skills the splicing
workers did not have. If it did not require
special skills, the question arises - What prevented Sodexo from
substituting redundant
splicing department employees for Sodexo
employees with less service in the other departments of P&G?
[51]
What emerges from this is that it is improbable there was a skill
barrier to the splicing workers being substituted for
fixed-term
contract or permanent general workers in other departments of P&G.
[52]
Sodexo
argues that ultimately the decision lay with it, as long as it was
open minded to consider and be persuaded on alternative
proposals. In
so doing it relies on a decision of this court in
National
Union of Metal Workers of South Africa (NUMSA) and Others v Feltex
Automotive Trim (Pty) Ltd
[3]
, in which the court held
that:
‘
[42] The
employer is not bound to accept the suggestions; they must merely be
seriously considered and consultation will not necessarily
be held to
be a mere pretence if the employer approaches the matter with a
pre-disposition to a particular solution: the test is
whether
management retained a sufficiently open mind to be persuaded by
practical and rational alternatives. The final decision,
whether to
retrench rests with the employer, but the ultimate decision on
whether that decision was fair rests with the court.’
It
should be mentioned that in
Feltex
the company did concede to
a number of the union’s demands such as reducing the number of
contract staff and staff provided
by labour brokers, offering those
jobs to affected employees.
[53]
The LAC
went beyond the narrow approach of
Feltex
in
National
Union of Mineworkers & Another v Black Mountain Mining (Pty)
Ltd
[4]
,
in which the LAC emphasised that retrenchment was an absolute measure
of last resort, strictly curbing unilateral managerial discretion:
"[3]
...In our view, dismissals for operational requirements must be a
measure of last resort, or at least fair under all of
the
circumstances. A dismissal can only be operationally justifiable on
rational grounds if the dismissal is suitably linked to
the
achievement of the end goal
for
rational reasons...
[37] It is not enough
for an employer to simply go through the motions of consultation and
then assert its managerial prerogative.
Where viable alternatives to
avoid job losses are raised, the employer must demonstrate with
concrete evidence why those alternatives
are not feasible."
[54]
It is difficult to discern any open-mindedness on the part of Sodexo
to entertain the lateral ‘bumping’ proposal
of the
union. It approached the retrenchment exercise with a fixed
objective in mind, namely to retrench the employees made
redundant by
the termination of the splicing contract. It collapsed the
scope of redundancy affecting its workforce at P&G,
with the
scope of the retrenchment. As discussed above, it failed to provide
to NUMSA with concrete reasons, and the court with
evidence, why the
affected employees in the splicing department could not do the work
of other Sodexo employees engaged in general
work in other P&G
departments. Sodexo’s reliance on
Yeko
is not
appropriate because in that case the skill mismatch of mining and
rail expertise was readily apparent.
[55]
The crux of the substantively unfair dismissal dispute lies in the
failure to agree on selection criteria.
Section 189(7)(b)
of the
Labour Relations Act, 66 of 1995
requires that where the consulting
parties cannot agree on retrenchment criteria, those adopted must be
objective and fair. Therefore,
to succeed Sodexo needed to
demonstrate its selection criteria was objective and demonstrably
more fair than that proposed by NUMSA,
which can be characterised as
‘LIFO with bumping’.
[56]
Case law
provides some guidance here. Referring to the seminal judgment on
LIFO and bumping, this court found
in
NUMSA & Others v Timken South Africa (Pty) Ltd
[5]
that:
‘
[32]
The principle of bumping and its limitations were clearly set out by
the Labour Appeal Court in Porter Motor Group v Karachi
(2002) 23 ILJ
348 (LAC), where the court held that:
'To determine whether
bumping should be applied, and how far it should extend,
the court
must balance the interests of the affected employee against the
operational needs of the business
. An employer is not required to
apply bumping where it would result in undue operational disruption,
substantial inefficiency,
or commercial prejudice.'
On the facts of this
matter
, the respondent failed to lead evidence establishing that
accommodating the applicants through horizontal bumping would have
caused
such disruption
.’
(emphasis added)
[57]
The
principle that the criteria should attempt, where possible, to
balance the interests of the affected employees and needs of
the
business, is also in conformity with the ILO Termination of
Employment Recommendation 1982 (No. 166)
[6]
,
which states
inter
alia
:
‘
CRITERIA FOR
SELECTION FOR TERMINATION
23
(1)
The selection by the employer of workers whose employment is
to be terminated for reasons of an economic, technological,
structural
or similar nature should be made according to criteria,
established wherever possible in advance,
which give due
weight both to the interests of the undertaking, establishment or
service and to the interests of the workers
."
(2)
These
criteria, their order of priority and their relative weight, should
be determined by the methods of implementation referred
to in
Paragraph 1 of this Recommendation.’
[7]
Although
not binding, the Recommendation has persuasive value.
[58]
As in the
Timken
case I am not satisfied that Sodexo led
sufficient evidence to show that accommodating the applicants in this
case by placing them
in other end of line general work positions
occupied by other permanent Sodexo employees working at P&G would
have cause any
significant operational disruption. In the
circumstances the retrenchment of the individual applicants in this
matter was substantively
unfair.
Relief and costs
[59]
It was not in dispute that when the matter came to trial, Sodexo no
longer had any contracts with P&G and that any
remaining labour
contracts it did have had been transferred to another labour service
provider who succeeded Sodexo as the provider
of labour services to
P&G a considerable time back.
[60]
In the circumstances, reinstatement as a remedy is not practical, and
compensation must suffice. As it is in lieu of
reinstatement, twelve
months’ remuneration is appropriate.
[61]
There is no reason, in law or fairness, why either party should be
awarded costs in this matter.
Order
1. The dismissals
of individual applicants, whose names appear on Annexure “A”
to the Applicant’s statement
of claim, by the Respondent was
substantively unfair.
2. The Defendant
must pay each of the individual applicants, whose names appear on
Annexure “A” to the Applicant’s
statement of claim,
twelve months’ remuneration as compensation, calculated at same
monthly rate of pay they were receiving
at the date of their
dismissal.
3. No order is made
as to costs.
Lagrange
J
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
T
Modisane of Modisane AT Attorneys
For
the Respondent:
A
J Nel, instructed by Lee & McAdam Attorneys
[1]
At
paragraphs [39] to [44].
[2]
(JS
633/18) [2022] ZAGPJHC 74 (25 March 2022)
[3]
(JS413/09)
[2013] ZALCJHB 107 (5 June 2013)
[4]
(2015)
36
ILJ
1206 (LAC)
[5]
(2009) 30
ILJ
2771
(LC)
[6]
Adopted by the General Conference of the ILO on 2 June 1982,
Webpage
reference:
https://normlex.ilo.org/dyn/nrmlx_en/fp=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312504:NO
[7]
‘
1.
The provisions of this Recommendation may be applied by national
laws or regulations, collective agreements, works rules, arbitration
awards or court decisions or in such other manner consistent with
national practice as may be appropriate under national conditions.’