THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JS973/20
In the matter between:
NATIONAL UNION OF METALWORKERS
OF SOUTH AFRICA obo MEMBERS Plaintiffs
and
ATL BLOW MOULDERS (PTY) LTD Defendant
Heard: 16 March 2026
Closing arguments delivered: 23 March 2026
Delivered: 8 September 2026
JUDGMENT
PHEHANE, J
Introduction
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
[1] The National Union of Metalworkers of South Africa (NUMSA) launched this
referral on behalf of their members, nine in number, 1 claiming that their
dismissal from the employ of the defendant for operational requirements was
both procedurally and substantively unfair. They seek retrospective
reinstatement, alternatively, compensation.
[2] The defendant opposes the referral.
Background
[3] The business of the defendant is extrusion blow moulding. Simply put, the
defendant converts raw materials into bottles and caps and services small - to-
medium business enterprises. This was the undisputed evidence of Mr
Hafeezur Rahman (Mr Rahman), the managing member of the defendant and
its sole witness in the trial proceedings.
[4] The following facts are common cause:
2
4.1 On or about 13 August 2020, the defendant received email
correspondence from NUMSA in which NUMSA made a proposal to
hold a meeting with the defendant to discuss the conferment of
organisational rights.
4.2 The defendant confirmed receipt of this email correspondence and
advised NUMSA that its management would arrange a meeting for
early September 2020.
4.3 The plaintiffs were dismissed for operational requirements on 14
August 2020.
4.4 The defendant did not serve NUMSA with a notice in terms of section
189(3) of the Labour Relations Act
3 (LRA) nor did it invite NUMSA to
participate in a consultation process in terms of the provisions of
section 189 of the LRA.
1 The list of NUMSA’s members who are plaintiffs in this application is common cause and appears at
para 5 of the pre-trial minute on p 36 of the pleadings bundle.
2 Pleadings, pre-trial minute as paras 9 to 12, on pp 36 to 37.
3 Act 66 of 1995, as amended.
3
4.5 The plaintiffs subsequently referred an unfair dismissal dispute to the
Commission for Conciliation, Mediation and Arbitration (CCMA) and the
dispute remained unresolved as at 11 September 2020.
[5] The plaintiff subsequently referred a dispute to this Court for adjudication in
terms of section 191(5)(b)(ii) of the LRA , alleging that the defendant wholly
departed from the provisions of section 189 of the LRA when it dismissed the
individual plaintiffs.4
Issues for determination
[6] The issues that this Court is to determine is whether there was a genuine
rationale for the dismissal and whether a fair procedure was followed.
Relevant legal framework
[7] Section 189 of the LRA provides for the procedure that an employer must
follow when it contemplates dismissing employees for operational
requirements and states thus:
‘(1) When an employer contemplates dismissing one or
more employees for reasons based on the employer’s operational
requirements, the employer must consult—
(a) any person whom the employer is required to consult in terms
of a collective agreement;
(b) if there is no collective agreement that requires consultation—
(i) a workplace forum, if the employees likely to be
affected by the proposed dismissals are employed in
a workplace in respect of which there is a workplace
forum; and
(ii) any registered trade union whose members are likely to
be affected by the proposed dismissals;
4 Plaintiff’s heads of argument at para 1.2.
4
(c) if there is no workplace forum in the workplace in which the
employees likely to be affected by the proposed dismissals are
employed, any registered trade union whose members are
likely to be affected by the proposed dismissals; or
(d) if there is no such trade union , the employees likely to be
affected by the proposed dismissals or their representatives
nominated for that purpose.
(2) The employer and the other consulting parties must in the consultation
envisaged by subsections (1) and (3) engage in a meaningful joint
consensus-seeking process and attempt to reach consensus on—
(a) appropriate measures—
(i) to avoid the dismissals;
(ii) to minimise the number of dismissals;
(iii) to change the timing of the dismissals; and
(iv) to mitigate the adverse effects of the dismissals;
(b) the method for selecting the employees to be dismissed; and
(c) the severance pay for dismissed employees.
(3) The employer must issue a written notice inviting the other consulting
party to consult with it and disclose in writing all relevant information,
including, but not limited to—
(a) the reasons for the proposed dismissals;
(b) the alternatives that the employer considered before proposing
the dismissals, and the reasons for rejecting each of those
alternatives;
(c) the number of employees likely to be affected and the job
categories in which they are employed;
(d) the proposed method for selecting which employees to
dismiss;
5
(e) the time when, or the period during which, the dismissals are
likely to take effect;
(f) the severance pay proposed;
(g) any assistance that the employer proposes to offer to the
employees likely to be dismissed;
(h) the possibility of the future re- employment of the employees
who are dismissed; the number of employees employed by the
employer; and
(j) the number of employees that the employer has dismissed for
reasons based on its operational requirements in the
preceding 12 months.
(4) (a) The provisions of section 16 apply, read with the changes
required by the context, to the disclosure of information in
terms of subsection (3).
(b) In any dispute in which an arbitrator or the Labour Court is
required to decide whether or not any information is relevant,
the onus is on the employer to prove that any information that
it has refused to disclose is not relevant for the purposes for
which it is sought.
(5) The employer must allow the other consulting party an opportunity
during consultation to make representations about any matter dealt
with in subsections (2), (3) and (4) as well as any other matter relating
to the proposed dismissals.
(6) (a) The employer must consider and respond to the
representations made by the other consulting party and, if the
employer does not agree with them, the employer must state
the reasons for disagreeing.
(b) If any representation is made in writing the employer must
respond in writing.
6
(7) The employer must select the employees to be dismissed according to
selection criteria—
(a) that have been agreed to by the consulting parties; or
(b) if no criteria have been agreed, criteria that are fair and
objective.’
[8] It is well established that dismissals for operational requirements are ‘no fault’
dismissals as such dismissals are based on the employer’s economic,
technological or structural needs. Therefore, the LR A places particular
obligations on an employer directed towards ensuring that all possible
alternatives to dismissal are explored , and that the employees to be
dismissed are treated fairly. The obligations placed on an employer are both
procedural and substantive. There must exist a fair reason for the dismissal
and a fair process must be followed. When the employer contemplates
dismissing employees for operational requirements, the employer must
consult with the affected employees or their representatives.
[9] The purpose of consultation is joint consensus - seeking on issues listed in
section 189(2). T he employer should in good faith keep an open mind
throughout the process and seriously consider the proposals put forward by
the employees. The LRA provides for disclosure by the employer regarding
information on matters that are relevant to the consultation in order to facilitate
an effective process of joint consensus -seeking. In the absence of agreement
on selection criteria, the selection criteria must be fair and objective. The
consultation process may be truncated depending on the urgent operational
needs of the employer.
5
[10] In Super Group Supply Chain Partners v Dlamini and Another 6 the Labour
Appeal Court (LAC) stated thus:
‘It is trite that an employer is permitted to dismiss an employee for its
operational requirements. However, for the employer to do so successfully, it
5 See: Part G of the Code of Good Practice: Dismissal , published in GN 3470 under GG No. 53294 of
2 September 2025. The now repealed Code of Good Practice Based on Operational Requirements
which was operative when the present dispute arose, contained the same provisions.
6 (2013) 34 ILJ 108 (LAC) at para 24.
7
is obliged to have a bona fide economic rationale for the dismissal and to
comply with the provisions of s 189 as well as s 189A of the Act where
applicable. Section 189 imposes an obligation on the employer to consult the
employee or its representative on the matters listed in subsection (2). There is
a duty on the employer not only to consult the affected employee(s) but to
take appropriate measures on its own initiative to avoid and minimise the
effect of the dismissal. The consultation envisaged by the Act is a “meaningful
joint consensus seeking process ” in which parties to the process should
attempt to reach some agreement on a range of issues that may best avoid
the dismissal and where not possible to ameliorate the effects of the dismissal
for operational requirements.’
(Own emphasis).
[11] In Association of Mineworkers and Cons truction Union and others v Royal
Bafokeng Platinum Limited and Others 7 (AMCU) the Constitutional Court held
that a consul tation as contemplated in section 189(2) of the LRA that is
consensus -seeking is neither collective bargaining nor negotiation. That
being the case, the employer is still obligated to attempt to reach consensus
in good faith.
The evidence
Evidence for the defendant
[12] Mr Rahman, the managing member of the defendant initially stated that he
was fully involved in the retrenchment process. His evidence was two
meetings were held with the affected employees, as TAWUSA was invited to
the consultation meetings, but did not turn up. He was unsure of the dates of
the consultation meetings and said they were held in early August 2020.
[13] His evidence is that the defendant was in a dire financial state due to the
impact of the COVID -19 pandemic. Mr Rahman stated that t he defendant’s
financial problems began in March/April 2020. With reference to a letter to all
employees by management dated 11 August 2020,8 he stated that employees
7 [2020] 5 BLLR 441 (CC) at paras 70 and 71.
8 B1.
8
were made aware of the financial difficulty the defendant was experiencing,
and as a result, some employees would be dismissed, and work on a ‘short -
time’ basis would be implemented.
[14] The letter reads:
‘To All Employees.
Re: Retrenchment and Short time Notice.
Due to unforeseen circumstances and the Covid-19 pandemic the company
finds itself in financial difficulty.
Customers in the hospitality sectors (restaurants, hotels, cinemas etc .) are
only partially functional
A high percentage of customers are currently reducing orders.
Customers are delayed in making payment which is affecting the company
considerably.
The company therefore has no option but to retrench a percentage of
employees. Our working staff will be on short term basis effective from
Monday the 17 August 2020.
The company will inform the affected employees by Friday 14 August 2020.
Management.’
[15] Mr Rahman explained that the defendant’s 2021 annual financial statement
(AFS)9 revealed a loss of R 76,231 in 2021 compared to a profit of R2m in
2020 and a decline in revenue of almost R2m. Short time was initially
implemented. This was not sustainable. T herefore, the defendant had no
option but to retrench employees in order to remain afloat.
[16] Mr Rahman stated that NUMSA was not invited to the consultation as it was
not a recogni sed trade union. The defendant communicated with NUMSA on
13 August 2020 regarding a meeting to discuss organi sational rights, but this
9 B6 to B23.
9
was after the consultation meetings with the affected employees had been
concluded on 12 August 2020. Mr. Rahman stated that he was unaware that
the plaintiff members were members of NUMSA at the time of the
consultations. When he was presented with application forms signed by the
plaintiffs to join NUMSA, his evidence was that he saw the forms for the first
time when preparing for trial.
[17] Mr Rahman’s conceded that the AFS of the defendant was not shared with
the plaintiff members during the consultations. He explained that the AFS was
not available when the consultations took place. His evidence is that during
the consultation meetings, the defendant's financial difficulties were
discussed. In particular, the following were discussed with the employees: the
reasons for the retrenchment, measures to avoid and minimise the dismissals,
the timing of the dismissals, limit ing the adverse effects of the retrenchments ,
selection criteria for retrenchment which he stated was LIFO, and severance
packages. He explained that the measures considered to minimi se
retrenchment was short -time over one or two days and when this was not
viable, retrenchment had to be considered. He stated that the employees said
nothing in response – they did not ask any questions and did not make any
proposals. He confirmed that he did not have the minutes of the consultation
meetings. He stated that out of his benevolence, the affected employees were
afforded the opportunity to look for employment elsewhere . Out of a
complement of 69 staff members in August 2020,
10 17 employees were
identified for retrenchment, and 17 employees were dismissed. They left
immediately and did not work any notice period.
[18] Mr Rahman conceded that former employees ND Bokolo and Zamani Mgizela
hag longer service periods and ought not to have been dismissed given the
LIFO selection criterion. He admitted that this was an ‘oversight’ on the part of
the defendant.
the defendant.
[19] Considering the relief sought by the plaintiff of reinstatement, Mr Rahman
stated that it would be tough to absorb 17 people after six years as this would
lead to more retrenchments.
10 B24 to B25.
10
[20] During cross -examination, Mr Rahman could not specify when the two
consultation meetings took place. He stated that they took place during the
first week of August 2020 and no minutes were kept. He confirmed the plaintiff
members were at the consul tation meeting, as well as two managers, Messrs
Romay Bellair and Dul lah Mashamba. He stated that he did not attend the
consultation meetings. He confirmed that he was instrumental in the
retrenchment process, but he could not recall when notices in terms of section
189(3) of the LRA were served on the plaintiff members . He stated that the
notices were served before 11 August 2020 and consultations were held
before 11 August 2020 but he did not think minutes were kept as he ‘ tried
looking for them’.
[21] Mr Rahman confirmed that in terms of paragraph 4 of the letter dated 11
August 2020, short time was implemented after the dismissals. He repeated
that the defendant’s financial problems began in March/April 2020 and when
August came, the defendant had to dismiss the employees ‘immediately’.
Further, he stated that the employees were not required to serve notice so
that they could go and look for jobs – he could not confirm whether or not they
were paid in lieu of serving a notice period and would have to go an d look for
documents to demonstrate that the employees were told they did not have to
serve notice.
[22] He conceded that the financial difficulties of the defendant were not disclosed
to the affected employees , no figures were presented to them and that he
could have done things differently by being more informative.
[23] He conceded that he was not prepared for the trial proceedings.
Evidence for the plaintiff
[24] Ms Mihleketo Baloyi stated that she was employed i n 2018 and her job
entailed making bottle caps. She states that she arrived at work on 11 August
2020 at approximately 7am. She was called by Dullah, who informed her that
some employees would be ‘ cut’. He later called her to his office, where
some employees would be ‘ cut’. He later called her to his office, where
Romay was present and was told to sign a piece of paper indicating that she
is dismissed. She was given a piece of paper informing her she will receive
11
one week’s wages. She was then told to leave the defendant’s premises, and
she left before 8am.
[25] Ms. Baloyi denied that any consultations were held regarding retrenchment
and she denied that the defendant was experiencing financial difficulties when
she was dismissed. She confirmed that she was a member of NUMSA at the
time of her dismissal.
[26] Mr David Moloi stated that was employed by the defendant since 2019. He
worked as a grinder at the time of his dismissal. His evidence was that a
gentleman by the name of Ananias recruited him to work for the defendant. Mr
Baloyi joined NUMSA in June 2020. After he joined NUMSA, Ananias told him
that he would be dismissed for joining a trade union. On one occasion,
Ananias phoned him and told him he was required at work. On arrival, he
entered an office: present were Romay and Dullah and some of the plaintiff
members. The plaintiff members were told that ‘ work is finished ’ and were
required to sign a piece of paper indicating that they were dismissed. No
reason was given for the dismissal. In his understanding, he believes he was
dismissed for joining NUMSA. Mr Baloyi corroborated the evidence of Ms
Baloyi in stating that no consultations were held before the dismissal. He also
confirmed that he was not informed that the defendant was experiencing
financial difficulties.
Evaluation
[27] Section 189 of the LRA codifies the procedure of dismissals based on
operational requirements.
[28] In the present application, the defendant failed to prove compliance with the
requirements of section 189 of the LRA . No evidence was presented to this
Court of any service of a notice in terms of section 189(3) of the LRA calling
upon any cascading hierarchy of parties to be consulted – in the present case,
the defendant failed to prove that a notice in terms of section 189(3) was
served the employees who were dismissed and on TAWUSA. It is common
cause that no section 189(3) notice was served on NUMSA, a registered trade
union.
12
[29] The defendant was aware that NUMSA wanted to meet to discuss the
conferment of organi sational rights. This is common cause. That the
defendant was not aware of union membership application forms does not
absolve it from its obligation to consult with NUMSA.
[30] In FAWU and Another v National Sorg hum Breweries11 this Court stated that
where there is no workplace forum, there is an obligation on an employer to
consult with a registered trade union whose members are likely to be affected
by the dismissals. In matters not that the union was not recogni sed. The
evidence before this Court is that the plaintiff members were members of
NUMSA. Therefore, the obligation arose for the defendant to consult with
NUMSA when it contemplated dismissing the plaintiff members. The
defendant did not do so. This renders the dismissal unfair. On 13 August
2020, NUMSA informed the defendant that it had recruited extensively at its
premises, and wanted to discuss organi sational rights. Ms Baloyi’s evidence
is that the workers elected to join NUMSA as TAWUSA was not representing
them. The defendant undertook to meet with NUMSA in early September
2020. NUMSA was not amenable to this, as it stated that there were pressing
issues that required it to represent its members' interests including the issue
of the daily dismissal of their members.
12 Therefore, the defendant was aware
before the dismissals on 14 September 2020, that NUMSA has recruited
extensively at its premises. It would not have been difficult for the defendant
to ascertain who the members of NUMSA were in order to invite NUMSA to a
consultation before informing employees of its decision on 14 August 2020, as
it had undertaken do to in its letter of 11 August 2020. It is improbable that the
defendant was unaware that the plaintiffs were NUMSA members – it had a
statutory obligation to consult with NUMSA on the retrenchment of its
members and obstinately failed to do so.
[31] That should be the end of the matter.
members and obstinately failed to do so.
[31] That should be the end of the matter.
11 (1998) 19 ILJ 613 (LC). See also: United National Breweries (SA) Ltd v Khanyeza and others (2006)
27 ILJ 150 (LAC).
12 B3.
13
[32] If I am wrong , which I do not think I am, I deal with the issue of whether the
section 189(3) notice was served on the plaintiff members and whether joint
consensus consultations were held to attempt to reach consensus on the
issues as contemplated in section 189(2) of the LRA. Mutually destructive
versions exist as to whether the notice i n terms of section 189(3) of the LRA
was served on the plaintiff members and whether consultations were held.
[33] Mr Rahman states that a notice was served before 11 August 2020 yet he
cannot recall when, and the defendant has not produced such a notice. The
plaintiff members deny that any section 189(3) notice was served on them.
[34] In Stellenbosch Farmers’ Winery Group Ltd and Another v Martell and Cie SA
and Others 13 the Supreme Court of Appeal (SCA) gave guidance as to how a
Court should deal with two mutually destructive versions. Mr. Rahman was
neither a reliable nor a credible witness. His version was riddled with
inconsistencies. He conceded that he was not prepared , and during cross -
examination, he was reprimanded for grimacing at the Court when he could
not answer questions. It is no joke dismissing employees in the midst of high
levels of unemployment in our country.
[35] His admitted lack of preparation demonstrates that the defendant did not take
its statutory obligations seriously. With regard to the service of the section
189(3) notice, he was unable t o inform this Court when the notice was served
on the plaintiff members. It was convenient for him to state that it would have
been served before 11 August 2020, as the letter he authored of the same
date, effectively informs all employees that a percentage of employees will be
retrenched, and the affected employees would be informed on 14 August
2020. Mr Rahman did not produce any section 189(3) notice that was served
on TAWUSA to demonstrate that such notice was served, at the very least on
TAWUSA.
on TAWUSA to demonstrate that such notice was served, at the very least on
TAWUSA.
[36] It is improbable that TAWUSA would not turn up for a consultation to represent
its members in a retrenchment process. If such notice existed, whether served
on TAWUSA or on the plaintiff’s members, it is vital to produce it , particularly
13 2003 (1) SA 11 (SCA) at para 5.
14
on Mr Rahman’s own version that he was instrumental in the process and the
defendant was assisted by a labour consultant . The evidence of Ms Baloyi
and Mr Moloi was clear and corroborative - no such notice was served on the
plaintiff members. It is more probable that the employees were informed on 11
August 2020, with no pri or service of a section 189(3) notice and no
consultation after receipt of the section 189(3) notice , that some of them
would be dismissed, and on 14 August 2020, the plaintiff members were
called into a meeting by Messrs Bellair and Mashamba and were dismissed
without notice.
[37] The plaintiff’s version that no discussion was held with them regarding the
financial difficulties of the defendant is more probable, as such discussions
would have occurred during consul tations. No evidence was presented by the
defendant to prove that it experienced financial difficulties and that such were
disclosed to the plaintiffs during consultations to afford them the opportunity to
make proposals on alternatives to dismissals , which would be seriously
considered by the defendant. The AFS of June 2021 are irrelevant. On Mr
Rahman’s own version, no figures were presented to the plaintiff members on
financial difficulties , which, according to Mr Rahman, commenced in
March/April 2020, necessitating immediate retrenchment in August 2020. It is
improbable that employees who were at risk of losing their employment would
not make any proposals to minimise the effect of their dismissal.
[38] On Mr Rahman’s own version, no alternatives were considered and short time
was implemented after the dismissals. In the absence of any consultations, no
attempt was made to discuss selection criteria. Mr Rahman’s concession that
two plaintiffs ought not to have been dismissed as they had longer terms of
service is indicative that LIFO was not a selection criterion. No attempt
whatsoever has been made by the defendant to correct this ‘ oversight’. Had
whatsoever has been made by the defendant to correct this ‘ oversight’. Had
LIFO been a selection criterion and such oversight occurred, some remedial
action would have been taken. The conduct of the defendant demonstrates
that it is an employer that has no regard for its statutory obligations and
treated its former employees unfairly.
15
[39] The plaintiffs did not plead the version that they were dismissed on account of
having joined NUMSA. In the circumstances, this version cannot be
entertained as litigants are bound to their pleaded case. This is trite.
[40] In considering the extremely truncated time frame between 11 August to 14
August 2020, the 17 employees that were identified for retrenchment and the
same number of employees retrenched, the failure to consult on the reason
for the retrenchment and alternatives to dismissal or minimising the effect of
the dismiss al, the picture that emerges is that the defendant wanted to rid
itself of the plaintiff members quickly. This is buttressed by it ’s not having
immediately offered to reinstate the two plaintiffs, which i t dismissed as an
‘oversight’.
[41] The defendant wholly disregarded its obligations in terms of section 189 of the
LRA and failed to prove that the dismissal of the plaintiff members was both
substantively and procedurally fair.
[42] Mr. Rahman testified that Messrs Bellairs and Mashamba consulted with the
plaintiff members twice in early August 2020, and no minutes were kept. It is
telling that the defendant did not call them to give evidence before this Court ,
as he did not indicate that they were not available. Mr de Villiers , for the
defendant, requested to take instructions on calling further witnesses at the
end of Mr Rahman’s re- examination, as he was taken by surprise by what
emerged from the cross- examination of Mr Rahman. After taking instructions,
the defendant closed its case. In the circumstances, a negative inference is
drawn for the failure by the defendant to call Messrs Bellairs and Mashamba
as witnesses.
[43] Mr Rahman states that he cannot reinstate 17 former employees. There are
nine plaintiffs before this Court. Two, he admitted ought not to have been
dismissed. He has not explained why they cannot be reinstated. He has not
explained why the remaining seven employees cannot be reinstated and he
explained why the remaining seven employees cannot be reinstated and he
has not informed this Court that six years later, the defendant is not financially
stable. Even if retrenchments could result following reinstatement as a
16
primary remedy, the defendant would be required, should his Court reinstate
the employees, which it is inclined to do, to follow a fair process.14
Costs
[44] The conduct of the defendan t in the manner in which it conducted itself in
proceedings with the trial warrants censure. The defendant approached this
Court unprepared, did not put up a convincing defence to the plaintiff’s claim
and failed to discharge its onus.
[45] Employment is not only important for the livelihood of the individual plaintiffs, it
is important for t he family members and individuals that the plaintiffs support.
Employment is further important for the dignity of a human being. In the
scourge of unemployment and the cost of living which is on the increase, it is
a serious injustice to dismiss employees in the unfair manner that the
defendant did, wholly disregarding its statutory obligations aimed at ensuring
fair labour practices, which is a constitutional right for everyone. The
unpreparedness of the defendant and taking this serious issue of unfair
dismissal in jest and over a period of six years , demonstrates that it had no
regard for the plight of the plaintiffs who have been unemployed over this
period.
[46] Due to the conduct of the defendant as aforesaid, this Court marks its
displeasure with a costs order.
14 Id fn 11.
17
[47] In the premises, the following order is made:
Order:
1. The dismissal of the plaintiffs is both procedurally and substanti vely
unfair.
2. The defendant is to reinstate the plaintiffs retrospectively to the date of
their dismissal, being 14 August 2020.
3. The defendant is to pay the costs of the referral.
___________________
M T M Phehane
Judge of the Labour Court of South Africa
Appearances:
For the plaintiffs: Mr Myando, NUMSA official
For the respondent: Mr De Villers of De Villiers & Du Plessis Attorneys