G E Security (Africa) v Airey and Others (CA02/2009) [2011] ZALCCT 81 (8 April 2011)

G E Security (Africa) v Airey and Others (CA02/2009) [2011] ZALCCT 81 (8 April 2011)

The Court found that the appellant was not obliged to consider the respondents for positions for which they did not apply. The interpretation advanced by the respondents was inconsistent with the section 189 notice, the consultation process, and the pre-trial minute, which clearly stated that employees who failed to apply for vacancies would be placed in a pool for consideration only if any positions remained vacant. The respondents were bound by the admissions in the pre-trial minute, and there was no formal application to withdraw those admissions. The dismissal of the respondents was therefore both substantively and procedurally fair, and the appeal succeeded.

Citation
[2011] ZALCCT 81
Parties
Appellant: G E Security (Africa); Respondent: Roger Airey; Respondent: David Denoon-Stevens; Respondent: Vincent Watters
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
8 April 2011
Case Number
CA02/2009
Procedural Posture
Civil Appeal / Appeal and Cross Appeal From Labour Court
Outcome
Appeal upheld with costs (excluding preparation and perusal costs of 75% of the record); order of court a quo set aside and substituted; cross-appeal dismissed with costs.
Judges
Waglay, Mlambo, Davis
Legal Topics
Retrenchment Procedure, Selection Criteria, Procedural Fairness, Substantive Fairness, Section 189 Consultation
Labour Law Civil Procedure Retrenchment Procedure Selection Criteria Procedural Fairness Substantive Fairness Section 189 Consultation

Case Brief

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Parties

G E Security (Africa)

Appellant

Roger Airey

Respondent

David Denoon-Stevens

Respondent

Vincent Watters

Respondent

Procedural Posture

Civil Appeal / Appeal and Cross Appeal From Labour Court

Legal Issues

  1. 1 Was the appellant obliged to consider the respondents for all positions for which they were eligible, regardless of whether they applied?
  2. 2 Did any breach of the selection criteria agreement render the dismissal substantively unfair, or only procedurally unfair?.

Ratio Decidendi

The Court found that the appellant was not obliged to consider the respondents for positions for which they did not apply. The interpretation advanced by the respondents was inconsistent with the section 189 notice, the consultation process, and the pre-trial minute, which clearly stated that employees who failed to apply for vacancies would be placed in a pool for consideration only if any positions remained vacant. The respondents were bound by the admissions in the pre-trial minute, and there was no formal application to withdraw those admissions. The dismissal of the respondents was therefore both substantively and procedurally fair, and the appeal succeeded.

Court Disposition

Appeal upheld with costs (excluding preparation and perusal costs of 75% of the record); order of court a quo set aside and substituted; cross-appeal dismissed with costs.

Orders

  • The appeal is upheld with costs, excluding preparation and perusal costs of 75% of the record.
  • The order of the court a quo is set aside and substituted with: 'The dismissal of the applicants was both substantively and procedurally fair. The applicants are ordered to pay the respondent’s costs.'