NUMSA obo Members v Kenco Engineering CC (JS947/11) [2015] ZALCJHB 390 (11 November 2015)

NUMSA obo Members v Kenco Engineering CC (JS947/11) [2015] ZALCJHB 390 (11 November 2015)

The court found that while the respondent established a general need to retrench due to operational requirements, it failed to prove that the selection criteria were fairly and objectively applied to the individual applicants. No evidence was led to show how the applicants were evaluated against the criteria or how their scores compared to those retained. The respondent's witnesses could only testify to the rationale for the criteria, not their actual implementation. As a result, the retrenchment was substantively unfair solely on the basis that the respondent did not demonstrate fair and objective application of its selection criteria.

Citation
[2015] ZALCJHB 390
Parties
Applicant: NUMSA obo Members; Respondent: Kenco Engineering CC
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
11 November 2015
Case Number
JS947/11
Procedural Posture
Labour Unfair Dismissal / Trial
Outcome
Retrenchment of the 19 individual applicants was substantively unfair solely because the respondent failed to prove fair and objective application of selection criteria.
Judges
Lagrange
Legal Topics
Retrenchment, Substantive Fairness, Selection Criteria, Compensation, Lifo, Union Consultation
Labour Law Retrenchment Substantive Fairness Selection Criteria Compensation Lifo Union Consultation

Case Brief

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Parties

NUMSA obo Members

Applicant

Kenco Engineering CC

Respondent

Procedural Posture

Labour Unfair Dismissal / Trial

Legal Issues

  1. 1 Was there a valid and fair reason for the retrenchment of the applicants.
  2. 2 Did the respondent properly consider alternatives to retrenchment.
  3. 3 Were fair and objective criteria used in selecting employees for retrenchment.

Ratio Decidendi

The court found that while the respondent established a general need to retrench due to operational requirements, it failed to prove that the selection criteria were fairly and objectively applied to the individual applicants. No evidence was led to show how the applicants were evaluated against the criteria or how their scores compared to those retained. The respondent's witnesses could only testify to the rationale for the criteria, not their actual implementation. As a result, the retrenchment was substantively unfair solely on the basis that the respondent did not demonstrate fair and objective application of its selection criteria.

Court Disposition

Retrenchment of the 19 individual applicants was substantively unfair solely because the respondent failed to prove fair and objective application of selection criteria.

Orders

  • The respondent must pay each applicant eight months' remuneration within 14 days of the judgment, as specified in the judgment.
  • In the event of disagreement on the monthly rate of remuneration for Shadrack Sepawa, Daniel Madiba, Theo Sepawa, Kaizer Makofane, and Jonas Khoza, either party may approach the court to determine the amount.