Herbst and Others v Fidelity Guards (J164/99) [2001] ZALC 84; (2001) 22 ILJ 1828 (LC) (7 June 2001)

Herbst and Others v Fidelity Guards (J164/99) [2001] ZALC 84; (2001) 22 ILJ 1828 (LC) (7 June 2001)

The court found that the respondent unequivocally terminated the applicants' employment by formal notice of retrenchment, and could not lawfully revoke this unilaterally. The respondent failed to comply with section 189 of the Labour Relations Act, constituting a material breach of contract. The applicants were entitled to accept the repudiation and cancel the contract, limiting their claim to severance pay. The respondent's offer of reinstatement did not cure the breach, and the applicants' refusal to return to work was reasonable given the circumstances and subsequent retrenchments. The dismissal for operational reasons was unfair, and the applicants were entitled to severance pay.

Citation
[2001] ZALC 84
Parties
Applicant: A L Herbst & Others; Respondent: Fidelity Guards
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
7 June 2001
Case Number
J164/99
Procedural Posture
Labour Law Dispute / Trial
Outcome
The applicants' dismissal was found to be unfair. The applicants are entitled to severance pay and costs.
Judges
Pillay
Legal Topics
Unfair Retrenchment, Severance Pay, Section 189 Procedure, Repudiation of Contract, Reinstatement Offer
Labour Law Unfair Retrenchment Severance Pay Section 189 Procedure Repudiation of Contract Reinstatement Offer

Case Brief

Summary, issues, holding and outcome

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Parties

A L Herbst & Others

Applicant

Fidelity Guards

Respondent

Procedural Posture

Labour Law Dispute / Trial

Legal Issues

  1. 1 Whether the applicants were retrenched on or about 30 September 1998.
  2. 2 Whether the respondent could lawfully revoke the retrenchment and reinstate the applicants unilaterally.
  3. 3 Whether the applicants were entitled to severance pay after refusing reinstatement.

Ratio Decidendi

The court found that the respondent unequivocally terminated the applicants' employment by formal notice of retrenchment, and could not lawfully revoke this unilaterally. The respondent failed to comply with section 189 of the Labour Relations Act, constituting a material breach of contract. The applicants were entitled to accept the repudiation and cancel the contract, limiting their claim to severance pay. The respondent's offer of reinstatement did not cure the breach, and the applicants' refusal to return to work was reasonable given the circumstances and subsequent retrenchments. The dismissal for operational reasons was unfair, and the applicants were entitled to severance pay.

Court Disposition

The applicants' dismissal was found to be unfair. The applicants are entitled to severance pay and costs.

Orders

  • The respondent is ordered to pay the 23 applicants listed in paragraph 1 of the stated case severance pay at the rate of one week per year of service.
  • The respondent is ordered to pay the costs of suit.