NUMSA and Others v Genlux Lighting (Pty) Ltd (JS 209/06) [2008] ZALC 116; [2009] 3 BLLR 245 (LC) ; (2009) 30 ILJ 654 (LC) (21 August 2008)

NUMSA and Others v Genlux Lighting (Pty) Ltd (JS 209/06) [2008] ZALC 116; [2009] 3 BLLR 245 (LC) ; (2009) 30 ILJ 654 (LC) (21 August 2008)

The court found that the respondent's retrenchment of all hourly paid employees was not genuinely justified by operational requirements. Although the respondent cited economic and structural needs, the evidence showed that 63 of the 70 employees were immediately re-employed in the same positions and performed the same work, but under a third-party employer (Phakisa). The respondent did not relinquish core functions, only administrative control, and even paid more for outsourced human resources services. The retrenchment was therefore a sham and not a reasonable option. For the 7 employees not re-employed, the selection criteria were not agreed upon with NUMSA, and no substantive grounds...

Citation
[2008] ZALC 116
Parties
Applicant: NUMSA; Applicant: France Stanford and 39 Others; Respondent: Genlux Lighting (Pty) Ltd
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
21 August 2008
Case Number
JS 209/06
Procedural Posture
Labour Trial / Judgment After Trial
Outcome
The dismissal of all 40 applicants was found to be substantively unfair. The respondent is ordered to re-employ the applicants where practicable and to pay costs.
Judges
Cele AJ
Legal Topics
Unfair Dismissal, Retrenchment, Operational Requirements, Outsourcing, Selection Criteria, Reinstatement
Labour Law Unfair Dismissal Retrenchment Operational Requirements Outsourcing Selection Criteria Reinstatement

Case Brief

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Parties

NUMSA

Applicant

France Stanford and 39 Others

Applicant

Genlux Lighting (Pty) Ltd

Respondent

Procedural Posture

Labour Trial / Judgment After Trial

Legal Issues

  1. 1 Whether the dismissal of the applicants was substantively fair under operational requirements.
  2. 2 Whether the retrenchment process was genuinely justified by operational needs.
  3. 3 Whether the selection criteria for the 7 employees not re-employed was fair.

Ratio Decidendi

The court found that the respondent's retrenchment of all hourly paid employees was not genuinely justified by operational requirements. Although the respondent cited economic and structural needs, the evidence showed that 63 of the 70 employees were immediately re-employed in the same positions and performed the same work, but under a third-party employer (Phakisa). The respondent did not relinquish core functions, only administrative control, and even paid more for outsourced human resources services. The retrenchment was therefore a sham and not a reasonable option. For the 7 employees not re-employed, the selection criteria were not agreed upon with NUMSA, and no substantive grounds...

Court Disposition

The dismissal of all 40 applicants was found to be substantively unfair. The respondent is ordered to re-employ the applicants where practicable and to pay costs.

Orders

  • The respondent is ordered to re-employ each of the 40 applicants in respect of whom re-employment is still practicable.
  • Such re-employment is to take effect immediately at the termination of the current 6 months’ fixed term contract served by the staff working at the respondent’s industry through Phakisa.