Sidane and Another v ABV Brands (Pty) Limited (D1167/2017) [2018] ZALCD 7 (13 July 2018)

Sidane and Another v ABV Brands (Pty) Limited (D1167/2017) [2018] ZALCD 7 (13 July 2018)

The court found that the respondent failed to justify the dismissals of the applicants as substantively and procedurally fair. The selection criterion of 'redundancy' was not fair or objective, as it merely identified the incumbents of positions declared redundant without considering other criteria such as LIFO or the actual operational requirements. The respondent did not meaningfully consult with the applicants or consider alternatives to retrenchment, such as relocation or alternative positions suited to their skills and experience. The consultation process was flawed, with inadequate explanation of the business rationale and insufficient engagement on substantive issues. The...

Citation
[2018] ZALCD 7
Parties
Applicant: Justice Qalukwenza Sindane; Applicant: Phillani Paul Mkhulise; Respondent: ABV Brands (Pty) Limited
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
13 July 2018
Case Number
D1167/2017
Procedural Posture
Labour Unfair Dismissal / Trial Judgment
Outcome
The dismissals of the first and second applicants were substantively and procedurally unfair. Both applicants are reinstated with retrospective effect and full pay and benefits.
Judges
F Coetzee
Legal Topics
Unfair Dismissal, Selection Criteria, Retrenchment Procedure, Section 189 Consultation, Redundancy, Alternatives to Dismissal
Labour Law Unfair Dismissal Selection Criteria Retrenchment Procedure Section 189 Consultation Redundancy Alternatives to Dismissal

Case Brief

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Parties

Justice Qalukwenza Sindane

Applicant

Phillani Paul Mkhulise

Applicant

ABV Brands (Pty) Limited

Respondent

Procedural Posture

Labour Unfair Dismissal / Trial Judgment

Legal Issues

  1. 1 Whether the dismissal of the applicants for operational requirements was substantively fair.
  2. 2 Whether the dismissal of the applicants was procedurally fair under section 189 of the Labour Relations Act.
  3. 3 Whether the selection criterion of 'redundancy' was fair and objective.

Ratio Decidendi

The court found that the respondent failed to justify the dismissals of the applicants as substantively and procedurally fair. The selection criterion of 'redundancy' was not fair or objective, as it merely identified the incumbents of positions declared redundant without considering other criteria such as LIFO or the actual operational requirements. The respondent did not meaningfully consult with the applicants or consider alternatives to retrenchment, such as relocation or alternative positions suited to their skills and experience. The consultation process was flawed, with inadequate explanation of the business rationale and insufficient engagement on substantive issues. The...

Court Disposition

The dismissals of the first and second applicants were substantively and procedurally unfair. Both applicants are reinstated with retrospective effect and full pay and benefits.

Orders

  • The dismissal of the first and second applicants was substantively and procedurally unfair.
  • The first and second applicants are reinstated on terms and conditions not less favourable than those that applied to them on the date of their dismissal on 31 May 2017.