Scheme Data Services (Pty) Ltd v Myhill NO and Others (JA 7/09) [2010] ZALAC 43 (1 October 2010)

Scheme Data Services (Pty) Ltd v Myhill NO and Others (JA 7/09) [2010] ZALAC 43 (1 October 2010)

The Labour Appeal Court found that the employer failed to comply with section 189(3)(b) of the Labour Relations Act by not disclosing or consulting on alternatives to dismissal, specifically the possibility of an alternative position for the third respondent. The failure to initiate bona fide consultation and to inform the employee of available alternatives rendered the dismissal both substantively and procedurally unfair. However, the majority held that the compensation awarded by the commissioner was excessive, as the arbitrator failed to consider all relevant factors, including the redundancy of the position, the difference in salary between the positions, the period of unemployment...

Citation
[2010] ZALAC 43
Parties
Appellant: Scheme Data Services (Pty) Ltd; Respondent: E Myhill N.O.; Respondent: The Commissioner for Conciliation, Mediation and Arbitration; Respondent: G Simpson
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
1 October 2010
Case Number
JA 7/09
Procedural Posture
Civil Appeal / Appeal From Labour Court Judgment and Arbitration Award
Outcome
Appeal succeeds in part; the finding of unfair dismissal is confirmed, but the compensation award is reduced.
Judges
Waglay DJP, Tlaletsi JA, C.J. Musi AJA
Legal Topics
Unfair Dismissal, Retrenchment Procedure, Compensation Award, Section 189 Consultation, Operational Requirements, Onus of Proof
Labour Law Civil Procedure Unfair Dismissal Retrenchment Procedure Compensation Award Section 189 Consultation Operational Requirements Onus of Proof

Case Brief

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Parties

Scheme Data Services (Pty) Ltd

Appellant

E Myhill N.O.

Respondent

The Commissioner for Conciliation, Mediation and Arbitration

Respondent

G Simpson

Respondent

Procedural Posture

Civil Appeal / Appeal From Labour Court Judgment and Arbitration Award

Legal Issues

  1. 1 Whether the dismissal of the third respondent was substantively and procedurally unfair.
  2. 2 Whether the employer complied with section 189(3)(b) of the Labour Relations Act regarding alternatives to dismissal.
  3. 3 Whether the compensation awarded by the commissioner was excessive and open to interference on appeal.

Ratio Decidendi

The Labour Appeal Court found that the employer failed to comply with section 189(3)(b) of the Labour Relations Act by not disclosing or consulting on alternatives to dismissal, specifically the possibility of an alternative position for the third respondent. The failure to initiate bona fide consultation and to inform the employee of available alternatives rendered the dismissal both substantively and procedurally unfair. However, the majority held that the compensation awarded by the commissioner was excessive, as the arbitrator failed to consider all relevant factors, including the redundancy of the position, the difference in salary between the positions, the period of unemployment...

Court Disposition

Appeal succeeds in part; the finding of unfair dismissal is confirmed, but the compensation award is reduced.

Orders

  • The appeal succeeds and the order of the Labour Court is set aside.
  • The award of the First Respondent under CCMA case no. GA 37354-03 dated 1 June 2006 is confirmed with respect to the finding that the dismissal of the third respondent was substantively and procedurally unfair.