Solidarity obo Member v Die Humansdorpse Landbou Kooperasie Ltd (P46/23) [2023] ZALCPE 10; (2023) 44 ILJ 2039 (LC) (26 May 2023)

Solidarity obo Member v Die Humansdorpse Landbou Kooperasie Ltd (P46/23) [2023] ZALCPE 10; (2023) 44 ILJ 2039 (LC) (26 May 2023)

The court found that the respondent employed more than 500 employees and issued section 189(3) notices to 63 employees, indicating that between 35 and 45 employees were likely to be affected. The respondent failed to justify the reduction in numbers and did not withdraw or correct the notice. The court held that the number of employees likely to be affected, as stated in the section 189(3) notice, triggers the application of section 189A. The respondent's attempt to avoid section 189A by manipulating the numbers was rejected. The court concluded that the retrenchment process was procedurally unfair as it did not comply with section 189A, and the Labour Court had jurisdiction to grant...

Citation
[2023] ZALCPE 10
Parties
Applicant: Solidarity obo Members; Respondent: Die Humansdorpse Landbou Koöperasie Ltd
Court
Labour Court Port Elizabeth
Jurisdiction
South Africa
Judgment Date
26 May 2023
Case Number
P46/23
Procedural Posture
Urgent Application / Application for Urgent Relief and Reinstatement Under Section 189 A(13) of the LRA
Outcome
Application granted. The respondent's dismissals for operational reasons were declared procedurally unfair for failure to comply with section 189A. Reinstatement and urgent relief ordered.
Judges
Jolwana
Legal Topics
Retrenchment Procedure, Section 189a, Procedural Fairness, Consultation Requirements, Urgent Relief, Reinstatement
Labour Law Retrenchment Procedure Section 189a Procedural Fairness Consultation Requirements Urgent Relief Reinstatement

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Parties

Solidarity obo Members

Applicant

Die Humansdorpse Landbou Koöperasie Ltd

Respondent

Procedural Posture

Urgent Application / Application for Urgent Relief and Reinstatement Under Section 189 A(13) of the LRA

Legal Issues

  1. 1 Whether section 189A of the Labour Relations Act applies to the respondent's retrenchment process.
  2. 2 Whether the respondent acted in a procedurally fair manner in dismissing employees for operational requirements.
  3. 3 Whether the Labour Court has jurisdiction to grant urgent relief and reinstatement under section 189A(13).

Ratio Decidendi

The court found that the respondent employed more than 500 employees and issued section 189(3) notices to 63 employees, indicating that between 35 and 45 employees were likely to be affected. The respondent failed to justify the reduction in numbers and did not withdraw or correct the notice. The court held that the number of employees likely to be affected, as stated in the section 189(3) notice, triggers the application of section 189A. The respondent's attempt to avoid section 189A by manipulating the numbers was rejected. The court concluded that the retrenchment process was procedurally unfair as it did not comply with section 189A, and the Labour Court had jurisdiction to grant...

Court Disposition

Application granted. The respondent's dismissals for operational reasons were declared procedurally unfair for failure to comply with section 189A. Reinstatement and urgent relief ordered.

Orders

  • The matter is entertained on an urgent basis and the applicant's non-compliance with the rules is condoned.
  • It is declared that the respondent acted in a procedurally unfair manner by dismissing the applicant's members for operational reasons without following section 189A.