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Perumal & another v Tiger Brands

Retrenchment: consultation requirements for "mass redundancy" dismissal

Fri, 28 Sep 2007 11:35

Issue:

In what circumstances can an employee allege that in the Labour Court that his or her dismissal, as part of a ‘mass redundancy’ (necessitating s.189A procedures), is procedurally unfair?

Summary of Facts:

The applicant challenged the substantive and procedural fairness of her redundancy.

The respondent contended that the provisions of the LRA prohibited the applicant from disputing the procedural fairness in this instance.

In relation to substantive unfairness, the applicant alleged that the respondent had applied its selection criteria in an unfair manner, a contention denied by the respondent.

Summary of Judgment:

In respect of procedural fairness, the Court agreed with the respondent. It found that s.189A(18) of the LRA operates to bar procedural challenges from being raised in s.191(5)(b)(ii) disputes (relating to dismissals for operational requirements), because s.189A(13) allows for challenges to procedural defects by way of an order compelling the employer to conform to fair procedure. In other words, because the applicant had not brought the procedural flaws to the attention of the employer via s.189A(13), she forfeited the right to challenge the procedural fairness altogether.

In respect of the substantive fairness, the Court noted that the respondent had subjected the applicant and her colleagues to a competency test and also required them to attend a meeting held by an interviewing panel. The Court found that in both the test and the interview, the respondent had acted in a biased manner towards the applicant. Accordingly, it found that the dismissal was substantively unfair. It ordered that the applicant be reinstated, paid compensation of 12 months with a partial costs order against the respondent.