Moses and Others v Fusion Wireless (Pty) Ltd t/a Sonic Telecoms and Others (C135/2021) [2024] ZALCCT 5 (6 February 2024)

Moses and Others v Fusion Wireless (Pty) Ltd t/a Sonic Telecoms and Others (C135/2021) [2024] ZALCCT 5 (6 February 2024)

The Court found that the retrenchments were substantively unfair. The employer's rationale for retrenchment was undermined by evidence that significant revenue was transferred out of Fusion Wireless to the holding company and that business decisions leading to decreased revenue and increased expenses were self-inflicted and not properly disclosed or consulted upon. The employer failed to provide evidence of fair and objective selection criteria or meaningful consideration of alternatives to retrenchment. The transfer of business to Herotel under section 197 of the LRA was common cause, and the applicants' employment contracts should have been transferred accordingly. The appropriate...

Citation
[2024] ZALCCT 5
Parties
Applicant: Ghiem Moses and 10 Others; Respondent: Fusion Wireless (Pty) Ltd t/a Sonic Telecoms; Respondent: JL Krynauw N.O.; Respondent: Mienie N.O.; Respondent: Hero Telecoms (Pty) Ltd; Respondent: Herotel (Pty) Ltd
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
6 February 2024
Case Number
C135/2021
Procedural Posture
Unfair Dismissal Application / Judgment
Outcome
The dismissals of the applicants were substantively unfair. Herotel is ordered to retrospectively reinstate the applicants into the same or similar positions as they held at the time of their retrenchment. No order as to costs.
Judges
Rabkin-Naicker
Legal Topics
Unfair Dismissal, Retrenchment, Section 189a Consultation, Selection Criteria, Section 197 Transfer
Labour Law Unfair Dismissal Retrenchment Section 189a Consultation Selection Criteria Section 197 Transfer

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Parties

Ghiem Moses and 10 Others

Applicant

Fusion Wireless (Pty) Ltd t/a Sonic Telecoms

Respondent

JL Krynauw N.O.

Respondent

Mienie N.O.

Respondent

Hero Telecoms (Pty) Ltd

Respondent

Herotel (Pty) Ltd

Respondent

Procedural Posture

Unfair Dismissal Application / Judgment

Legal Issues

  1. 1 Whether the dismissals of the applicants for operational requirements were substantively fair.
  2. 2 Whether the selection criteria applied during the retrenchment process were fair and objective.
  3. 3 Whether the transfer of business and employment contracts under section 197 of the LRA affected the applicants' rights to reinstatement.

Ratio Decidendi

The Court found that the retrenchments were substantively unfair. The employer's rationale for retrenchment was undermined by evidence that significant revenue was transferred out of Fusion Wireless to the holding company and that business decisions leading to decreased revenue and increased expenses were self-inflicted and not properly disclosed or consulted upon. The employer failed to provide evidence of fair and objective selection criteria or meaningful consideration of alternatives to retrenchment. The transfer of business to Herotel under section 197 of the LRA was common cause, and the applicants' employment contracts should have been transferred accordingly. The appropriate...

Court Disposition

The dismissals of the applicants were substantively unfair. Herotel is ordered to retrospectively reinstate the applicants into the same or similar positions as they held at the time of their retrenchment. No order as to costs.

Orders

  • The dismissals of the applicants were substantively unfair.
  • Herotel is to retrospectively reinstate the applicants into the same or similar positions as they held at the time of their retrenchment.