The LC upheld a dismissal for a valid and fair reason based on operational requirements.  The employee was also deprived of severance pay and ordered to pay the legal costs.  This may seem harsh but ‘fairness’ works both ways.  What is disturbing is the ‘suggestion’ in the judgment that a position has to become ‘redundant’ to justify a fair dismissal.  The word ‘redundant’ does not appear in the labour laws and is foreign and misleading concept.  Operational requirements is defined in s 213 of the LRA and the word ‘redundant’ should be avoided, as also ‘retrenchment’.

“This case is an unfortunate example of all that can go wrong if parties do not genuinely engage one another in a retrenchment consultation process, with a proper open mind as to one another’s respective positions.   An intransigent approach to retrenchments consultations more often than not has the consequence of jobs being lost, when this could have been readily avoided” [para 1].

Full discussion of topic in Du Toit et al Labour Relations Law: A Comprehensive Guide 6th edn (LexisNexis 2015) at pages 472-498.

V v Johannesburg Stock Exchange Ltd (JS398/15) [2016] ZALCJHB 361 (23 September 2016) per S Snyman AJ.

LC summary:

Operational requirements

  • redundancy of position – meaning of – employee’s position redundant
  • alternative position – employee required to apply for available alternatives – employee refusing to apply thus exposing herself to retrenchment
  • alternative positions – what constitutes reasonable alternative – alternatives available to employee reasonable
  • procedural fairness – principles considered – where employee could avoid her own retrenchment issue of procedural fairness does not arise
  • consultation process – joint consensus seeking process – requires proper participation in the process by both parties – employee defeating objectives of process by entering the process with pre-decided agenda

Dismissal – operational requirements – dismissal substantively and procedurally fair – application dismissed

Severance pay – entitlement to – Section 41(4) of BCEA considered – employee unreasonably refused alternative position – not entitled to severance pay