- December 16, 2022
- |Concise Law Reports (CLR), Labour Law
The respondent was employed by the appellant as an Assistant Workshop Manager from 1 September 2014. The appellant was experiencing a decline in auto sales. During April and May 2019, the appellant had engagements with the respondent regarding the economic difficulties the appellant was facing and as a result, the position of the respondent was declared redundant. On 30 July 2019, the first respondent referred a dispute of unfair dismissal to the Labour Commissioner’s office. The arbitrator handed down an award on 16 August 2021 where she found that the respondent’s dismissal was procedurally and substantively unfair and ordered compensation. The applicant appealed against that award.
SIBEYA J had to determine the central question of whether or not the appellant breached section 34 read with section 33 of the Act when it terminated the respondent’s employment on 19 July 2019. Simply put, whether the respondent’s dismissal was procedurally and substantively unfair.
Having considered the relevant provisions of the Labour Act and applicable legal principles, it was held that:
- The onus to show that the retrenchment was for a valid and fair reason rested on the employer and, therefore, it was incumbent on the appellant to show that the decision to retrench was justified by a proper and valid commercial business rationale.
- The appellant failed to lead any evidence to show that the retrenchment of the respondent was an act of last resort, in that there were no other alternatives but to retrench the respondent.
- The purpose of s 34 is essentially to bring the employer and employee to the negotiating table and an employer is under an obligation to enter into genuine negotiations and to negotiate in good faith while in casu, it appeared that the appellant on the facts did not negotiate in good faith.
- The arbitrator was correct to find on the evidence, the appellant did not discharge the onus of proving that the retrenchment was in compliance with the provisions of s 34 of the Labour Act.
The court confirmed the award issued by the Arbitrator dated 16 August 2021 in favour of Mr. Katjiruru in so far as it held that the dismissal of Mr. Katjiruru was both procedurally and substantially unfair. The monetary award issued by the arbitrator in favour of Mr. Katjiruru was set aside. The matter was referred back to the Office of the Labour Commissioner to allocate the aspect relating to the monetary award (compensation) to the same arbitrator Ms Fabiola Katjivena, or should she be unavailable, to another duly appointed arbitrator, to without delay, deal with the aspect of the monetary award according to law after hearing evidence and submissions in that regard.
Pupkewitz Motor Division (Pty) Ltd v Katjiruru (HC-MD-LAB-APP-AAA-2021-00062) [2022] NALCMD 78 (16 December 2022)