DB Contracting North CC v Num (JA 113/13) [2015] ZALAC 30; [2015] 10 BLLR 973; (2015) 36 ILJ 2773 (LAC) (2 July 2015) per Sutherland  JA with Landman JA concurring [Ndlovu JA dissenting]

The employer dismissed 106 employees for a reason based on operational requirements.  The Labour Court [Lallie J] held the dismissals were substantively unfair and reinstated the employees.  The Labour Appeal Court, by a majority decision, allowed the appeal and set aside the Labour Court’s judgment.  In terms of a sectoral determination for the industry the hourly rate of wages was adjusted upwards.  The employer claimed that it was unable to afford to pay those new rates.  After contemplating possible dismissals the employer consulted the trade union and offered to maintain the previous hourly rate to avoid the dismissals.  The union did not dispute the reasonableness of the offer. The union representative undertook to obtain a mandate from the members.  It was agreed that if the offer was not accepted the employees would be dismissed on a stipulated date.  As the employer was not informed of the acceptance of the offer notices of dismissal were issued.  The union argued that the offer had been accepted but not communicated to the employer.  On the facts, and by a majority vote, the LAC rejected the version of the union.

[58]   The parties have agreed that the sole question to decide on appeal is whether the union, on behalf of the workers, accepted an offer put to the union on 13 November 2009, that a retrenchment would be avoided if the workers agreed to a wage rate at the current rate of R11.55 per hour and they forwent the bargaining council stipulated increase at a rate of R16.98 per hour.  Precisely how an agreement in these terms could be implemented at less than the bargaining council rate was not disclosed, but it is not a question the court is required to decide.  This offer is agreed by the parties as being reasonable; ie a reasonable alternative to retrenchment.  If the finding of fact is that the workers refused the offer, the retrenchment is fair; if they accepted the offer, there would be no rationale for a retrenchment and accordingly the retrenchment was unfair.  The exact formulation of the question, which seems to have some bearing on the difference in the views adopted in the respective judgments in this case, was articulated thus:

‘If it is found that indeed the respondents (the employees) refused the offer, which was reasonable, then the appeal ought to succeed and conversely, if it is found that the respondents (the employees) were amenable to the offer and in fact accepted same however the appellant terminated their employment even before their acceptance could be communicated then it should follow that the retrenchments were premature and therefore unfair with the result that the appeal ought to be dismissed with costs.’

[59]   Accordingly, in my view, this Court must address the respective cases which the parties have agreed to contest; other aspects of their dispute are irrelevant.