Servest Landscaping Turf Maintenance (PTY) Ltd v SACCAWU obo Thisani and 20 Others (C 464/2019) [2022] ZALCCT 54; (2023) 44 ILJ 380 (LC) (24 October 2022)

Servest Landscaping Turf Maintenance (PTY) Ltd v SACCAWU obo Thisani and 20 Others (C 464/2019) [2022] ZALCCT 54; (2023) 44 ILJ 380 (LC) (24 October 2022)

The court found that the arbitrator erred in law by requiring a binding obligation from Bidvest to employ the retrenched staff as a prerequisite for the application of section 41(4) of the BCEA. The evidence demonstrated that the applicant, Servest, actively initiated and facilitated the process by which Bidvest employed all willing staff members, using its own resources and premises, and maintained oversight throughout the recruitment process. The arbitrator failed to appreciate the significance of this unchallenged evidence and misunderstood the legal principle that the employer's efforts, rather than a contractual obligation, are sufficient to relieve the employer of severance pay...

Citation
[2022] ZALCCT 54
Parties
Applicant: Servest Landscaping Turf Maintenance (PTY) Ltd; Respondent: SACCAWU obo Thisani, Thozama & 20 Others; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner Katy Khuduga (N.O.)
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
24 October 2022
Case Number
C 464/2019
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Arbitration award reviewed and set aside; substituted with a finding that the respondents were not entitled to severance pay under section 41(4) of the BCEA.
Judges
Lagrange
Legal Topics
Severance Pay, Retrenchment, Alternative Employment, Basic Conditions of Employment Act, Arbitration Review
Labour Law Severance Pay Retrenchment Alternative Employment Basic Conditions of Employment Act Arbitration Review

Case Brief

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Parties

Servest Landscaping Turf Maintenance (PTY) Ltd

Applicant

SACCAWU obo Thisani, Thozama & 20 Others

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner Katy Khuduga (N.O.)

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the individual respondents were entitled to severance pay upon retrenchment by the applicant.
  2. 2 Whether the applicant arranged suitable alternative employment for the respondents with Bidvest, thereby triggering section 41(4) of the BCEA.
  3. 3 Whether the arbitrator erred in law by requiring a binding obligation for alternative employment to relieve the applicant of severance pay liability.

Ratio Decidendi

The court found that the arbitrator erred in law by requiring a binding obligation from Bidvest to employ the retrenched staff as a prerequisite for the application of section 41(4) of the BCEA. The evidence demonstrated that the applicant, Servest, actively initiated and facilitated the process by which Bidvest employed all willing staff members, using its own resources and premises, and maintained oversight throughout the recruitment process. The arbitrator failed to appreciate the significance of this unchallenged evidence and misunderstood the legal principle that the employer's efforts, rather than a contractual obligation, are sufficient to relieve the employer of severance pay...

Court Disposition

Arbitration award reviewed and set aside; substituted with a finding that the respondents were not entitled to severance pay under section 41(4) of the BCEA.

Orders

  • The arbitration award dated 2 June 2019 issued under case number WECT2927-18 by the Third Respondent is reviewed and set aside.
  • It is substituted with a finding that the persons listed in Annexure 'A' to the award were not entitled to severance pay in terms of section 41(4) of the Basic Conditions of Employment Act 75 of 1997.