NUMSA obo Members v Timken SA (Pty) Ltd (JS 460/04) [2009] ZALC 8; [2009] 6 BLLR 548 (LC); (2009) 30 ILJ 2124 (LC) (15 January 2009)

NUMSA obo Members v Timken SA (Pty) Ltd (JS 460/04) [2009] ZALC 8; [2009] 6 BLLR 548 (LC); (2009) 30 ILJ 2124 (LC) (15 January 2009)

The court found that the selection criteria used by the respondent were unfair and subjective, as they excluded skills, qualifications, experience, and long service, and did not allow employees to challenge negative attendance records, including absences due to injury. The respondent failed to consider alternatives to retrenchment, such as bumping, and did not provide reasons for rejecting these options. The retrenchment was not a last resort, and the respondent did not comply with its obligation to notify or invite retrenched employees to apply for new positions. The agreement by Mr Motaung to accept retrenchment was based on an unfair criterion and was declared null and void. The...

Citation
[2009] ZALC 8
Parties
Applicant: NUMSA obo Members; Respondent: Timken SA (Pty) Ltd
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
15 January 2009
Case Number
JS 460/04
Procedural Posture
Labour Unfair Dismissal Application / Judgment
Outcome
The dismissals of the applicants, including Mr Motaung, were found to be unfair. The applicants are to be reinstated and compensated.
Judges
Molahlehi
Legal Topics
Retrenchment, Selection Criteria, Reinstatement, Compensation, Re Employment, Last in First Out
Labour Law Retrenchment Selection Criteria Reinstatement Compensation Re Employment Last in First Out

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 11 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

NUMSA obo Members

Applicant

Timken SA (Pty) Ltd

Respondent

Procedural Posture

Labour Unfair Dismissal Application / Judgment

Legal Issues

  1. 1 Whether the selection criteria used for retrenchment were fair and objective.
  2. 2 Whether the respondent failed to consider alternatives to retrenchment, including bumping.
  3. 3 Whether the respondent failed to re-employ or invite retrenched employees to apply for new positions.

Ratio Decidendi

The court found that the selection criteria used by the respondent were unfair and subjective, as they excluded skills, qualifications, experience, and long service, and did not allow employees to challenge negative attendance records, including absences due to injury. The respondent failed to consider alternatives to retrenchment, such as bumping, and did not provide reasons for rejecting these options. The retrenchment was not a last resort, and the respondent did not comply with its obligation to notify or invite retrenched employees to apply for new positions. The agreement by Mr Motaung to accept retrenchment was based on an unfair criterion and was declared null and void. The...

Court Disposition

The dismissals of the applicants, including Mr Motaung, were found to be unfair. The applicants are to be reinstated and compensated.

Orders

  • The respondent, Timken SA (Pty) Ltd, is ordered to reinstate the applicants Julius Jiki, Quintin Mbatha, Ben Motaung, Thulani Mdluli, and Norman More.
  • The respondent is to pay compensation to all the above applicants, including the estate of the deceased Mr Dlamini, equivalent to 12 months' salary.