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Oosthuizen v Telkom SA Ltd
Retrenchment: obligation to re-train to avoid retrenchment dismissal
Fri, 28 Sep 2007 11:38
Oosthuizen v Telkom SA Ltd
Judgment Date 29 June 2007
Jurisdiction Labour Appeal Court, Johannesburg
Judge Zondo JP, Kruger AJA
Subject Dismissals based on Operational Requirements Substantive Fairness in Retrenchment
Whether the respondent employer ought to have redeployed the appellant, rather than make retrench him, and whether the selection criteria that did not include length of service was fair in the circumstances.
Summary of Facts:
The appellant had been retrenched by the respondent. He lodged a claim in the Court that partially rested on the fact that the respondent had not negotiated with him personally but with a union that was representative at the workplace. The Court dismissed the applicants claim.
The appellant appealed to the LAC on the basis that (1) the respondent ought to have avoided the redundancy by redeploying to one of the positions that he applied for and (2) on the basis that the respondents selection criteria was unfair.
Summary of Judgment:
On the issue of redeployment, the Court noted that the appellant had applied for 26 positions, some of which he was shortlisted for. The respondent led no evidence at to why he was not appointed to those positions and the Court found that it had failed to justify the dismissal of the appellant. Interestingly, the Court found that if the appellant required training to be suitable for an alternative position, that the respondent must arrange such training as part of its obligations to look for alternatives to redundancy.
On the issue of the selection criteria, the respondents evidence was that skills, suitability and employment equity policy were the criteria adopted. The respondent did not take into account length of service, which was a significant issue given the appellant had been employed for 30 years with the respondent. The Court did not making any findings on this point, having already ruled that the dismissal was substantively unfair because the appellant could have been redeployed. The LAC did appear to find that the length of service was also relevant to the obligation to redeploy.
The LAC ordered that the appellant be reinstated. It also made specific orders about the need for a fair reasons and procedures to be adopted should the respondent maintain that it has a surplus because of the reinstatement. Costs were awarded against the respondent.
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