In a judgment (exceeding 100 pages) the Constitutional Court has made clear the objectives of section 189A(13) of the Labour Relations Act and debunked any myth that the Labour Court is precluded from adjudicating the procedural fairness of a large-scale retrenchment.

Perhaps ironically, the employer in Regenesys Management (Pty) Ltd Ltd v Ilunga and others (click here for a copy of the judgment) is a tertiary institution. The apex Court has sought to educate the employer which was found by it to have materially fallen foul of complying with a fair operational requirements process, by not only having poor reasons to have retrenched certain employees, but also to have dismally failed to comply with a fair process in doing so.

The Court, in expressing its displeasure in the manner in which Regenesys went about the retrenchment process, upheld substantial awards of re-instatement for the substantive unfair dismissals, as well as awards of compensation for the procedurally unfair manner in which the dismissals were carried out. The Court further awarded costs against it.

The lengthy judgment seeks to clarify any misapprehensions which may exist as regards the circumstances under which section 189A(13) may be invoked, as well as the where the exclusion of section 189A(18) finds application.

A cursory glance at the compensation figures involved and some assumptive math will make it abundantly clear why it is of the utmost importance for the prescripts of section 189 and section 189A to be complied with.

Kind Regards

Van Zyl’s Inc