SACU obo Danster v Bidvest Facilities Management (Pty) Ltd (JS 1069/2020) [2022] ZALCJHB 251 (9 September 2022)

SACU obo Danster v Bidvest Facilities Management (Pty) Ltd (JS 1069/2020) [2022] ZALCJHB 251 (9 September 2022)

The court found that while the respondent was entitled to apply LIFO subject to skills retention, it failed to afford the applicant or her representative a fair opportunity to engage with or challenge the assessment that led to her selection for retrenchment. The schedule compiled by the applicant's supervisor, which formed the basis for her selection, was not disclosed or discussed during the consultation process. This procedural shortcoming rendered the dismissal unfair. The court held that compensation, rather than reinstatement, was appropriate given the nature of the respondent's contract with the bank and the procedural nature of the unfairness.

Citation
[2022] ZALCJHB 251
Parties
Applicant: SACU obo Antoinette Danster; Respondent: Bidvest Facilities Management (Pty) Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
9 September 2022
Case Number
JS 1069/2020
Procedural Posture
Unfair Dismissal Application / Trial
Outcome
The dismissal of the applicant was procedurally unfair. Compensation is awarded.
Judges
Van Niekerk
Legal Topics
Retrenchment, Selection Criteria, Last in First Out, Skills Retention, Procedural Fairness, Compensation for Unfair Dismissal
Labour Law Retrenchment Selection Criteria Last in First Out Skills Retention Procedural Fairness Compensation for Unfair Dismissal

Case Brief

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Parties

SACU obo Antoinette Danster

Applicant

Bidvest Facilities Management (Pty) Ltd

Respondent

Procedural Posture

Unfair Dismissal Application / Trial

Legal Issues

  1. 1 Was the selection criteria for retrenchment fairly and objectively applied by the respondent.
  2. 2 Did the respondent afford the applicant a fair opportunity to challenge the assessment that led to her selection for retrenchment.
  3. 3 Is the applicant entitled to compensation for unfair dismissal.

Ratio Decidendi

The court found that while the respondent was entitled to apply LIFO subject to skills retention, it failed to afford the applicant or her representative a fair opportunity to engage with or challenge the assessment that led to her selection for retrenchment. The schedule compiled by the applicant's supervisor, which formed the basis for her selection, was not disclosed or discussed during the consultation process. This procedural shortcoming rendered the dismissal unfair. The court held that compensation, rather than reinstatement, was appropriate given the nature of the respondent's contract with the bank and the procedural nature of the unfairness.

Court Disposition

The dismissal of the applicant was procedurally unfair. Compensation is awarded.

Orders

  • The respondent is ordered to pay the applicant compensation equivalent to six months' remuneration, calculated at the rate paid at the time of dismissal.