De Beers Group Services (Pty) Ltd v National Union of Mineworkers (JA 65/2009) [2010] ZALAC 26; [2011] 4 BLLR 319 (LAC); (2011) 32 ILJ 1293 (LAC) (20 December 2010)

De Beers Group Services (Pty) Ltd v National Union of Mineworkers (JA 65/2009) [2010] ZALAC 26; [2011] 4 BLLR 319 (LAC); (2011) 32 ILJ 1293 (LAC) (20 December 2010)

The court held that section 189A of the Labour Relations Act requires strict compliance with consultation and procedural requirements before termination notices may be issued. In the absence of consensus on retrenchment, a dispute exists and must be referred to the CCMA for conciliation after the statutory 30-day period. Only after the further period set out in section 64(1)(a) has elapsed may the employer issue termination notices. The appellant failed to comply with these requirements, issuing termination notices prematurely and without proper consultation. The court affirmed that such notices are invalid and of no force and effect. The Labour Court's order reinstating the employees was...

Citation
[2010] ZALAC 26
Parties
Appellant: De Beers Group Services (Pty) Ltd; Respondent: National Union of Mineworkers
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
20 December 2010
Case Number
JA 65/2009
Procedural Posture
Civil Appeal / Appeal From Labour Court Judgment Reinstating Retrenched Employees
Outcome
Appeal dismissed with costs; Labour Court order reinstating employees confirmed.
Judges
Davis JA, Waglay DJP, Hendricks AJA
Legal Topics
Retrenchment Procedure, Section 189a Compliance, Procedural Fairness, Consultation Requirements, Premature Termination Notice
Labour Law Civil Procedure Retrenchment Procedure Section 189a Compliance Procedural Fairness Consultation Requirements Premature Termination Notice

Case Brief

Summary, issues, holding and outcome

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Parties

De Beers Group Services (Pty) Ltd

Appellant

National Union of Mineworkers

Respondent

Procedural Posture

Civil Appeal / Appeal From Labour Court Judgment Reinstating Retrenched Employees

Legal Issues

  1. 1 Whether the employer complied with section 189A of the Labour Relations Act in issuing termination notices.
  2. 2 Whether a dispute existed requiring referral to the CCMA before termination notices could be issued.
  3. 3 Whether the retrenchment procedure followed was procedurally fair.

Ratio Decidendi

The court held that section 189A of the Labour Relations Act requires strict compliance with consultation and procedural requirements before termination notices may be issued. In the absence of consensus on retrenchment, a dispute exists and must be referred to the CCMA for conciliation after the statutory 30-day period. Only after the further period set out in section 64(1)(a) has elapsed may the employer issue termination notices. The appellant failed to comply with these requirements, issuing termination notices prematurely and without proper consultation. The court affirmed that such notices are invalid and of no force and effect. The Labour Court's order reinstating the employees was...

Court Disposition

Appeal dismissed with costs; Labour Court order reinstating employees confirmed.

Orders

  • The appeal is dismissed with costs.
  • The order of the Labour Court dated 9 June 2009 reinstating the individual respondents is confirmed.