GIWUSA obo Qenebe and Others v NAMPAK Wiegand Glass (Pty) Ltd (JS398/10) [2013] ZALCJHB 128 (3 June 2013)

GIWUSA obo Qenebe and Others v NAMPAK Wiegand Glass (Pty) Ltd (JS398/10) [2013] ZALCJHB 128 (3 June 2013)

The court found that the respondent had properly considered alternatives to retrenchment by offering the applicants alternative positions at a lower grade. The union, however, refused these alternatives unless the applicants retained their previous salaries, which the employer was not obliged to provide. The...

Source-derived case information.

Citation
[2013] ZALCJHB 128
Parties
Applicant: GIWUSA obo Qenebe, C and Five Others; Respondent: NAMPAK Wiegand Glass (Pty) Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
3 June 2013
Case Number
JS398/10
Procedural Posture
Dismissal Application / Final Judgment
Outcome
The dismissal of the individual applicants on the basis of operational requirements was substantively fair.
Judges
A C Basson
Legal Topics
Retrenchment, Operational Requirements, Consultation Process, Selection Criteria, Alternative Positions
Labour Law Retrenchment Operational Requirements Consultation Process Selection Criteria Alternative Positions

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Summary, issues, holding and outcome

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Parties

GIWUSA obo Qenebe, C and Five Others

Applicant

NAMPAK Wiegand Glass (Pty) Ltd

Respondent

Procedural Posture

Dismissal Application / Final Judgment

Legal Issues

  1. 1 Was there a proper consideration of alternatives to retrenchment as required by section 189A(19)(c) of the Labour Relations Act?
  2. 2 Were the selection criteria applied fair and objective?
  3. 3 Was the dismissal substantively fair in terms of operational requirements?

Ratio Decidendi

The court found that the respondent had properly considered alternatives to retrenchment by offering the applicants alternative positions at a lower grade. The union, however, refused these alternatives unless the applicants retained their previous salaries, which the employer was not obliged to provide. The consultation process was not one-sided; the union failed to make counter-proposals or engage meaningfully regarding the alternatives. The evidence showed that other employees who accepted alternative positions were accommodated, while those who refused were retrenched. The selection criteria applied were fair and objective, as the affected department was closed. The dismissal was...

Court Disposition

The dismissal of the individual applicants on the basis of operational requirements was substantively fair.

Orders

  • The dismissal of the individual applicants on the basis of operational requirements was substantively fair.
  • There is no order as to costs.