Pre-trial minute binding: Operational requirements dismissal

Filiba v Sebenza Forwarding & Shipping (Pty) Ltd   

Pre-trial minute binding as decided by labour court including a need to restructure which had not been withdrawn and former employee prevented from contending there was substantive unfairness.

“This matter concerns a case of unfair dismissal based on operational requirements, brought to this Court in terms of section 191(5)(b) of the Labour Relations Act (“LRA”).1 The applicant has brought this case by way of statement of claim filed on 28 June 2016. In the statement of claim, the applicant contended that her dismissal by the respondent for operational requirements was both substantively and procedurally unfair. The respondent opposed the statement of claim, and the gist of its case was that there existed a proper operational rationale for the restructuring and that the applicant could have been properly accommodated in an alternative position, which she ultimately declined to take up. There were also a number of other ancillary issues raised in this matter, when it finally came before me on trial, which I will also address later in this judgment.” [para 1]

Overview

‘In sum, I am therefore satisfied that the specific question must also be answered in favour of the respondent. The applicant was the only one in what can loosely be called the payroll department at the respondent, and her position became redundant as a result of the restructuring of the respondent. She was offered an alternative position of payroll officer, which she accepted on an outsourced basis, a scenario the respondent was also happy with.
The parties were in agreement on the nature of the job, the job functions, and the remuneration. The parties also agreed that the applicant would remain in her position until the financial year end on 29 February 2016, and then take up this outsource position. All that remained to be done before then was to discuss and then agree on the other outsource terms.
[72] The respondent initiated this discussion on 22 February 2016, but the applicant inexplicably and certainly unreasonably, took this as some or other repudiation by the respondent, never sought to engage in discussion, and immediately claimed dismissal and pursued an unfair dismissal dispute to the CCMA. The applicant only has herself to blame for what ultimately happened to her. The courts have consistently held that an employee that unreasonably refuses to accept a proper alternative position available to the employee, in effect exposes himself or herself to being retrenched, and the employer would be justified in retrenching him or her.” [paras 71 and 72]