Raju and Others v Scotts Select A Shoe a Division OF South African Breweries (J1440/98) [1999] ZALC 106 (7 July 1999)

Raju and Others v Scotts Select A Shoe a Division OF South African Breweries (J1440/98) [1999] ZALC 106 (7 July 1999)

The court found that the respondent failed to comply with the procedural requirements of section 189 of the Labour Relations Act, as no proper consultation took place with the applicants' union prior to retrenchment. The union's lack of response did not amount to consent or waiver of rights, and the respondent bore the onus to ensure a joint consensus-seeking process. The applicants were unfairly retrenched and entitled to compensation. However, due to an unreasonable delay in instituting proceedings, the compensation was reduced by six months. The applicants were awarded six months' salary as compensation, except for the third applicant, and the respondent was ordered to pay costs.

Citation
[1999] ZALC 106
Parties
Applicant: K. Raju; Applicant: B. Mahado; Applicant: V. Govender; Applicant: S. Reddy; Applicant: M. Moodley; Applicant: D. Moodley; Applicant: K. Moodley; Applicant: K. Pillay; Respondent: Scotts / Select-a-Shoe a division of South African Breweries Limited
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
7 July 1999
Case Number
J1440/98
Procedural Posture
Labour Law Application / Trial and Judgment
Outcome
Applicants (excluding the third applicant) are awarded compensation for six months' salary and costs of suit.
Judges
G.O. Van Niekerk
Legal Topics
Retrenchment Procedure, Section 189 Consultation, Compensation for Unfair Dismissal, Waiver of Rights, Delay in Instituting Proceedings
Labour Law Retrenchment Procedure Section 189 Consultation Compensation for Unfair Dismissal Waiver of Rights Delay in Instituting Proceedings

Case Brief

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Parties

K. Raju

Applicant

B. Mahado

Applicant

V. Govender

Applicant

S. Reddy

Applicant

M. Moodley

Applicant

D. Moodley

Applicant

K. Moodley

Applicant

K. Pillay

Applicant

Scotts / Select-a-Shoe a division of South African Breweries Limited

Respondent

Procedural Posture

Labour Law Application / Trial and Judgment

Legal Issues

  1. 1 Whether the respondent complied with the consultation requirements under section 189 of the Labour Relations Act before retrenching the applicants.
  2. 2 Whether the applicants or their union waived their rights to consultation or consented to the retrenchment.
  3. 3 Whether the applicants are entitled to compensation for procedural unfairness in their dismissal.

Ratio Decidendi

The court found that the respondent failed to comply with the procedural requirements of section 189 of the Labour Relations Act, as no proper consultation took place with the applicants' union prior to retrenchment. The union's lack of response did not amount to consent or waiver of rights, and the respondent bore the onus to ensure a joint consensus-seeking process. The applicants were unfairly retrenched and entitled to compensation. However, due to an unreasonable delay in instituting proceedings, the compensation was reduced by six months. The applicants were awarded six months' salary as compensation, except for the third applicant, and the respondent was ordered to pay costs.

Court Disposition

Applicants (excluding the third applicant) are awarded compensation for six months' salary and costs of suit.

Orders

  • Each applicant, except the third applicant, is to be paid their monthly salary as at the time of dismissal for a period of six months.
  • The respondent is to pay the applicants' costs of suit.