National Union of Mineworkers v Harmony Gold Mining Company Ltd (J861/05) [2005] ZALC 73 (6 May 2005)

National Union of Mineworkers v Harmony Gold Mining Company Ltd (J861/05) [2005] ZALC 73 (6 May 2005)

The court found that the respondent did not follow a fair retrenchment procedure before dismissing the applicant's members. The consultation process was incomplete, as evidenced by the respondent's own admission in the termination letters that further information and consultation were still being offered after the dismissals. The agreement of 5 October 2004 brought the earlier consultation process to an end and withdrew the previous retrenchment notices, requiring any new retrenchment process to begin afresh and comply with the prescribed procedures under the LRA. The respondent's decision to proceed with dismissals without referring the dispute to the CCMA, as required by the collective...

Citation
[2005] ZALC 73
Parties
Applicant: National Union of Mineworkers; Respondent: Harmony Gold Mining Company Ltd
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
6 May 2005
Case Number
J861/05
Procedural Posture
Urgent Application / Application for Urgent Interim Relief Under Sections 189 A(13) and 14 of the LRA
Outcome
Application granted. The respondent is ordered to reinstate the applicant's members dismissed on 19 April 2005 until a fair procedure is followed.
Judges
P Tlaletsi
Legal Topics
Retrenchment Procedure, Collective Agreements, Consultation Requirements, Facilitation Under Lra, Urgent Interdict, Fair Dismissal
Labour Law Civil Procedure Retrenchment Procedure Collective Agreements Consultation Requirements Facilitation Under Lra Urgent Interdict Fair Dismissal

Case Brief

Summary, issues, holding and outcome

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Parties

National Union of Mineworkers

Applicant

Harmony Gold Mining Company Ltd

Respondent

Procedural Posture

Urgent Application / Application for Urgent Interim Relief Under Sections 189 A(13) and 14 of the LRA

Legal Issues

  1. 1 Whether the respondent followed a fair procedure before dismissing the applicant's members for operational requirements.
  2. 2 Whether the retrenchment notices issued on 19 April 2005 were premature and unlawful under section 189A(8)(b) read with section 189A(2)(a) of the LRA.
  3. 3 Whether the consultation process initiated on 2 April 2004 was finalised by the agreement of 5 October 2004.

Ratio Decidendi

The court found that the respondent did not follow a fair retrenchment procedure before dismissing the applicant's members. The consultation process was incomplete, as evidenced by the respondent's own admission in the termination letters that further information and consultation were still being offered after the dismissals. The agreement of 5 October 2004 brought the earlier consultation process to an end and withdrew the previous retrenchment notices, requiring any new retrenchment process to begin afresh and comply with the prescribed procedures under the LRA. The respondent's decision to proceed with dismissals without referring the dispute to the CCMA, as required by the collective...

Court Disposition

Application granted. The respondent is ordered to reinstate the applicant's members dismissed on 19 April 2005 until a fair procedure is followed.

Orders

  • The respondent is ordered to reinstate the applicant's members dismissed on 19 April 2005 until it has complied with a fair procedure.
  • The respondent is interdicted from giving notice to terminate the contracts of employment of the applicant's members until the periods mentioned in section 64(1)(a) of the Labour Relations Act 66 of 1995 have elapsed in respect of the dispute referred to the CCMA on 20 April 2005.