FAWU obo Kapesi and Others v Premier Foods Ltd t/a Ribbon Salt River (C640/07) [2010] ZALC 61; (2010) 31 ILJ 1654 (LC); [2010] 9 BLLR 903 (LC) (4 May 2010)

FAWU obo Kapesi and Others v Premier Foods Ltd t/a Ribbon Salt River (C640/07) [2010] ZALC 61; (2010) 31 ILJ 1654 (LC); [2010] 9 BLLR 903 (LC) (4 May 2010)

The Court found that the Respondent was not entitled to circumvent disciplinary hearings by resorting to section 189 operational requirements dismissals simply because it could not prove misconduct. The evidence showed that disciplinary hearings were possible, even with witness intimidation, and that hearsay evidence could have been admitted in the interests of justice. The operational requirements route is only permissible where the economic viability of the enterprise is genuinely threatened, which was not established in this case. The selection criteria, including polygraph testing, were not fair or objective, and the consultation process did not adequately consider reasonable...

Citation
[2010] ZALC 61
Parties
Applicant: FAWU obo Kapesi and 31 others; Respondent: Premier Foods Limited t/a Blue Ribbon Salt River
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
4 May 2010
Case Number
C640/07
Procedural Posture
Labour Unfair Dismissal / Trial Judgment
Outcome
The dismissal of the Applicants was substantively and procedurally unfair. Reinstatement was denied due to the breakdown of the employment relationship. Compensation was awarded.
Judges
AC Basson
Legal Topics
Unfair Dismissal, Operational Requirements, Procedural Fairness, Polygraph Testing, Hearsay Evidence, Strike Related Misconduct
Labour Law Civil Procedure Unfair Dismissal Operational Requirements Procedural Fairness Polygraph Testing Hearsay Evidence Strike Related Misconduct

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 17 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

FAWU obo Kapesi and 31 others

Applicant

Premier Foods Limited t/a Blue Ribbon Salt River

Respondent

Procedural Posture

Labour Unfair Dismissal / Trial Judgment

Legal Issues

  1. 1 Whether the dismissal of the Applicants was substantively and procedurally fair.
  2. 2 Whether the employer was entitled to use operational requirements as a basis for dismissal where misconduct was alleged but not proven.
  3. 3 Whether polygraph testing constituted a fair and objective selection criterion for retrenchment.

Ratio Decidendi

The Court found that the Respondent was not entitled to circumvent disciplinary hearings by resorting to section 189 operational requirements dismissals simply because it could not prove misconduct. The evidence showed that disciplinary hearings were possible, even with witness intimidation, and that hearsay evidence could have been admitted in the interests of justice. The operational requirements route is only permissible where the economic viability of the enterprise is genuinely threatened, which was not established in this case. The selection criteria, including polygraph testing, were not fair or objective, and the consultation process did not adequately consider reasonable...

Court Disposition

The dismissal of the Applicants was substantively and procedurally unfair. Reinstatement was denied due to the breakdown of the employment relationship. Compensation was awarded.

Orders

  • The Respondent must pay each of the Individual Applicants compensation equal to twelve months' salary.
  • The Respondent is ordered to pay the costs, including the costs of two counsel and the qualifying expenses of the expert witness Professor Tredoux.