After holding that a dismissal based on operational requirements was substantively fair Justice André van Niekerk restated the legal requirements for procedural fairness and the importance of patience and genuine joint consensus-seeking.

Section 189 of the LRA is clear and should not be held up as checklist to conduct consultation by litigation.  It is not appropriate to judge each of the requirements separately.  It must be done prudently.  Failure to comply with any one requirement should not necessarily result in procedural unfairness.  Management contemplating a termination must engage in a ‘joint consensus-seeking process’.  Both parties must exchange views and proposals honestly and openly.  Management must seriously consider proposals to ensure the fullest exchange of views.  Employees must also participate actively and seek mutually agreed outcomes.

Vermeulen v Investgold CC (JS 113/13) [2014] ZALCJHB 516 (15 December 2014) per A van Niekerk J.