updated 8:50 PM UTC, Oct 9, 2019
Employment and Labour on tabling of Amended Employment Equity Bill
National and Regional Economically Active Population - QLFS Q2 2019
What is the difference between purpose and meaning?
Why is the focus on the human element important now?
Amendment to EEA Regulations: New format for EEA4
Separation of disciplinary enquiries into two parts
Protection of Personal Information Policy
Influenza Vaccine Consent Form
The difference between a work practice and a term and condition of employment
Disconnected from global trends? The right of employees to digitally disconnect
A+ A A-

Substantive fairness in dismissals based on operational requirements

Case Law & Legislation Review:

By Gary Watkins

# Masilela v Leonard Dingler (Pty) Ltd

Subject: Substantive fairness in dismissals based on operational requirements

# ISSUE: To determine if the dismissal based on operational requirements was substantively unfair - parties must put case to other party where mutually destructive versions – employee’s version improbable - an available more junior position as an alternative to retrenchment was not directly offered to the employee - the dismissal was procedurally fair and substantively unfair

# SUMMARY OF EVIDENCE: The employer’s HR manager testified that the employee was employed as an Industrial Relations Manager. The HR manager noticed after his appointment that there was a duplication of skills and a need for an administrative person in industrial relations. There was a need to restructure.

As the HR manager, he could take on the duties of an industrial relations manager thereby making that position redundant. The HR Manager had met with the employee on several occasions and discussed the possibility of his retrenchment and the restructuring. The HR manager testified that he wrote the employee a letter in which he stated that an administrative position would be created. The employee did not apply for the position.

The HR manager testified that there were other meetings after the letter was written, one in specific when the employee suggested a training manager position be created to accommodate the employee. The HR manager gave the proposal thorough consideration before turning the proposal down. The HR manager wrote a letter to the employee turning down the proposals, he also verbally informed the employee of the reasons that the post could not be created. There was an acknowledgement of receipt on the letter dated 2 weeks after it was written.

The HR manager admitted that the factory closed down over the December / January holidays, but not the administration. The HR Manager wrote a letter to the employee stating the date of his dismissal, and his retrenchment package. The HR Manager also testified that there was a need to retrench the employee and that this was communicated to the employee.

The HR manager testified that he would consult his superior on important decisions, but that the ultimate decision was his. The HR manager testified that the conversations were not recorded because there was no need to discuss everything in detail. When a milestone was reached, it was summarised in a letter. The HR manager denied that the employee was on leave during Dec/Jan. The HR manager testified that the junior post was advertised, and that the employee did not apply for the position.

The employee testified that the HR Manager personally delivered a letter informing him of the retrenchment. When the employee approached the HR manager about the letter, the HR manager told him to make an appointment. He went to the HR manager’s office regularly but the HR manager was always unavailable. The employee and the HR manager had an informal discussion about the integration of the salaries department to the HR department.

The employee had taken leave which was delayed for a week as he had not been able to get hold of the HR manager. Before returning to work after his leave, the employee consulted an attorney who advised him to go to work as he had no letter of dismissal. The employee returned to work and was informed that the HR manager had been in a car accident and was in hospital.

The employee testified that he did not propose a training manager position be created for him, as he had no training experience. The employee testified that the letter regarding the training post was a fabrication. The employee also testified that the HR manager had informed him of the junior post that was to be created, but that the post had not been advertised.

# SUMMARY OF JUDGEMENT: THE Judge found that large portions of the Employee’s evidence were improbable added to which the employee’s attorney had failed to put much of his evidence to the employer’s witness, which is imperative in order to reach decisions on 2 mutually destructive versions.

The Judge considered that various discussions re the restructuring must have taken place, especially as the various letters written by the employer referred to "discussions". The Judge then accepted that there was a duplication of skills between the HR and IR manager and accepted that there was a need to make the position of the industrial relations manager's post redundant and create a junior admin post.

The Judge did not however accept that there was a need to retrench the employee. The junior administrative position should have been created and offered to the employee. This could have prevented his dismissal. The employer had needed a junior administration post but no evidence was led whether the post was indeed created.

The employee was not asked why he did not apply for the junior position that was apparently created, and the employer had not recorded in writing that the post had been created. The dismissal was therefore substantively unfair.

The Judge found that the employee’s reinstatement in the circumstances would not be appropriate. Taking into account, the employee’s role in the consultation process and his performance in court, the Judge declined to award 12 months salary as requested but awarded compensation equivalent to eight months remuneration. The dismissal was found to be procedurally fair, but substantively unfair. The employer was to pay the employee’s costs.

Warning: count(): Parameter must be an array or an object that implements Countable in /home/gwdhmoih/public_html/templates/gk_news2/html/com_k2/templates/default/item.php on line 176
Gary Watkins

Gary Watkins

Managing Director


C: +27 (0)82 416 7712

T: +27 (0)10 035 4185 (Office)

F: +27 (0)86 689 7862

Website: www.workinfo.com
Login to post comments

HR Associations