Nacbawu obo Nhavene v Extra Dimensions 1158 (Pty) Ltd (JS 638 / 2010) [2014] ZALCJHB 502 (9 December 2014)

LC summary:  #1 Operations requirements – s 189 – selection of employees – issue of bumping – principles considered.  #2 Operational requirements – procedural fairness – consultation process considered – purpose of process considered.  #3  Dismissal – operational requirements – proper selection of employees – consultation process overall fair – dismissal substantively and procedurally fair – application dismissed.

Heard: 4 and 5 September 2014        Delivered: 9 December 2014

SNYMAN, AJ

Introduction

[1]       The applicants have brought a dispute to the Labour Court in which it was contended that the dismissal of the individual applicants by the respondent was both substantively and procedurally unfair.  The applicants brought this dispute to the Court by way of statement of claim filed on 12 July 2010.  The applicants sought fully retrospective reinstatement and back pay.  The respondent, on the other hand, contended that the individual applicants’ dismissal was both substantively and procedurally fair.  It was common cause that the individual applicants were dismissed and that such dismissal was based on the respondent’s operational requirements.

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[38]     In then applying the above facts to the quoted ratio from the judgment in Porter Motor Group, it must firstly be pointed out that bumping was indeed raised and consulted on in the consultation process, where it comes to Nhavene.  Bumping is thus properly brought in the consultation for consideration, and was dealt with.  Further, it must be accepted that Nhavene would qualify to bump out either Mogege or Moyane, based on length of service, the fact that the bumping would be more or less horizontal insofar as it concerns post level, and that Nhavene would accept the lesser rate these employees may be earning.  There is no issue of geographical limitation or inter departmental transfer problems that may arise.

But all this being said, there is, in my view two insurmountable obstacles in the way of Nhavene in this case which would stand firmly in the way of him bumping either Mogege or Moyane out.

The first issue is the lack of mobility and qualification.  Considering the nature of the respondent’s operations and the actual duties of the employees, there is simply no mobility between positions if the employee does not have the requisite certification to operate each of the different machines concerned, associated with each position, and Nhavene simply did not have such certifications.  In simple terms, Nhavene cannot do the work of Mogege or Moyane as he is not qualified.

Secondly, and considering the actual dire financial position of the respondent, to retrain and requalify Nhavene would be unduly onerous, and actually disruptive to the business of the respondent.  In the end, the application of the principles in Porter Motor Group, as referred to, convinces me that the application of bumping in casu, as suggested by the applicants, is inappropriate.