SACCAWU v Woolworths (Pty) Ltd (J3159/12, JS1177/12) [2016] ZALCJHB 126 (5 March 2016) per Nkutha-Nkontwana, AJ.

With effect from 4 November 2012 the Labour Court reinstated 44 employees with full back-pay after finding that they were unfairly dismissed, purportedly for reasons based on ‘operational requirements’.  This is an important judgment because it is the first instance of a large employer failing to take proper and fair steps to comply with the legal requirements of ‘equal remuneration for work of equal value’.  It was held in para [45] that:

‘whilst unfair discrimination disputes falling under chapter II of the EEA can be referred to the Labour Court for adjudication and this can be done by an individual, a “right to affirmative action” or “pay equity” in this instance, is not an individual right.  Accordingly, it is incompetent for an employer to seek to protect an individual right not to be unfairly discriminated through an operational requirements process and thereby circumventing its obligation under Chapter III of the EEA to develop a plan to deal progressively with any unfair pay differentiation. Woolworths, as designated employer, ought to have dealt with pay inequity issues in accordance with chapter III of the EEA’.     

LC summary:

Dismissal for operational requirements – dismissal of employees who had accepted its commercial reasons to work flexible hours – employer alleging pay inequity as a ground for operational requirements – it is incompetent for an employer to seek to address unfair pay differentiation through an operational requirements process and thereby circumventing its obligation under Chapter III of the EEA – dismissal not operationally justifiable.

Dismissal for operational requirements – employer dismissing who had employees commercial and economic reasons in order to make profit – employer did not produce evidence on the costs associated with the employment of affected employees; total amount of targeted cost reduction and whether such a target had been achieved – it is not possible to decide if the employer’s decision is a rational or reasonable one – dismissal not operationally justifiable.

Dismissal for operational requirements – Consultation – employer failed to consult with a derecognised trade union during voluntary phase – in the absence a recognised union or workplace forum, there is a duty to consult with a registered trade – dismissal procedurally unfair.