Reeflords Property Development (Pty) Ltd v De Almeida

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Phatshoane ADJP and Savage AJA and Phatudi AJA
• Judgment Date: 16 March 2022
• Court: Labour Appeal Court
• Hearing Date: 08 March 2022
• Docket Number: JA72/2020

Savage AJA:

Introduction:

[1]

This appeal, with the leave of the Labour Court, is against the judgment and orders of that Court (Lagrange J) delivered on 15 October 2019 in which the dismissal of the respondent, Ms Lauren De Almeida, on grounds of operational requirements was found to be procedurally and substantively unfair with the appellant, Reeflords Property Development (Pty) Ltd, ordered

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to pay the respondent six months' compensation in the amount of R132 000,00 and costs.

[2]

The respondent was employed by the appellant during 2014 in its sales department and, with effect from 15 February 2015, as operations coordinator of the sales department. In 2016, the respondent took maternity leave and returned to work in September 2016. On 29 September 2016, she was called to a meeting with three senior colleagues and given until 5 October 2016 to consider their proposal that she be moved out of the sales department into the respondent's development department. The following day, on 30 September 2016, at a meeting of the sales department she was told that certain of her functions were allocated to the new head of that department. On 5 October 2016, the respondent indicated that she would not accept the proposal to move her to the development department. At meetings on 6 and 11 October 2016, she was informed that, despite her lack of marketing experience, she was to be removed from operations and was to undertake marketing functions.

[3]

On 13 October 2016, the respondent lodged a grievance related to the change in management structure, the removal of her duties and job title and contended that this amounted to a demotion. She proposed that she be reinstated into her position in operations on the same terms and conditions as she had enjoyed prior to her maternity leave. The grievance was not resolved.

[4]

On 28 October 2016, the appellant gave the respondent notice in terms of section 189(3) of the Labour Relations Act 66 of 1995 ('the LRA') of her possible dismissal based on its operational requirements given the restructuring of the business and the redundancy of her position. The notice proposed that to avoid retrenchment, the respondent be employed in the alternative position of marketing executive. At the second consultation meeting on 7 November 2016, the respondent agreed that she would accept an appointment into the alternative position on certain conditions, namely that she receive training and guidance in the new position and that she be paid the AA-recommended per kilometre rate as a travel allowance. On 9 November 2016, a contract of employment for the new position was provided to the

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respondent. It made no provision for any training or the kilometre rate to be paid to her as a travel allowance.

[5]

On 28 November 2016, after her return from sick leave, the respondent wrote to the appellant refusing to accept the alternative position offered, stating that:

'…You have provided me with an alternative position. This position is not a reasonable one. I am unable to do the job as I do not have the necessary experience and skill. You have refused to provide me with training to undertake the job. I understand that the last consultation will be held at the next earliest convened date. I will attend the consultation.'

[6]

The appellant did not respond to the letter. At the third consultation meeting held on 30 November 2016, the appellant did not accept that the contract provided to the respondent had in error omitted a reference to the training or the AA rate to be paid; nor did it offer to correct the contract to insert these aspects so as to accord with the terms agreed at the second consultation meeting. The respondent refused to accept the alternative position on the basis that it was not a reasonable one and indicated at the meeting that the appellant had made its position clear...