Selvan v Crossroads Distribution (Pty) Ltd
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Sutherland JA, Coppin JA and Phatshoane AJA |
| Judgment Date | 16 January 2023 |
| Citation | 2023 JDR 2636 (LAC) |
| Hearing Date | 24 November 2022 |
| Docket Number | JA 25/22 |
| Court | Labour Appeal Court |
Sutherland JA:
Introduction
The appellant, Bryan Selvan (Mr Selvan) was the Human Resources (HR) manager of the respondent, Crossroads Distribution (Pty) Ltd (CD). He was retrenched with effect from 30 June 2016. Aggrieved by this decision, Mr Selvan contended that the dismissal was in breach of s 189 of the Labour Relations
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Act [1] (LRA) being both procedurally and substantively unfair. The matter was heard by Mabaso AJ in the Labour Court, who, on 14 October 2021, dismissed the claims. This is the judgment on appeal before this Court.
The case has had a tortuous passage with many controversies arising. In this judgment, attention is given to the critical issues only.
Critical facts
The core facts are common cause. CD was one of several corporate affiliates in a Group of Companies. The business of CD is the transport of goods by truck. A valuable client failed to perform appropriately and revenue flow was imperilled. The scale of the operations became unsustainable. In 2015, it became apparent that a reduction in costs and the elimination of staff surplus to requirements was unavoidable. Mr Selvan, self-evidently, as HR manager, was the lead management figure in driving the process. Because of the scale of the contemplated retrenchment a s 189A process was embarked on. [2] This
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is significant because ss (18) excludes any disputes about procedural unfairness being ventilated after the retrenchment process has been completed.
Staff were retrenched in stages. From January 2016, three stages of retrenchment were driven towards completion. A fourth stage was then embarked upon on 15 April 2016. Hitherto, the staff who had been subjected to the exercise had been the operations rank and file. In the fourth stage, the notice issued alluded pointedly to support staff including “the HR department”.
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The HR department consisted of 4 persons including Mr Selvan, the head of that department. This notice was issued by Mr Behrens, the Group HR executive, not by Mr Selvan.
According to Mr Selvan, on 20 April 2016, immediately after he and Mr Behrens, had concluded a consultation with some of the support staff, which did not, in that meeting, include any HR staff, Mr Behrens announced to him that he too was to be retrenched. Mr Selvan says that he was astonished by this news. He had no expectation that his post might become redundant. Moreover, he contends that he had been given no prior warning of that prospect. CD’s case is that the allusion to the “HR dept” in the third retrenchment notice was an appropriate notification to Mr Selvan who ought to have appreciated that the notice, logically, must have included him. This is the high point of the respondent’s case on proper notice.
Thereafter, three of the employees in the HR department, including Mr Selvan, were retrenched and one, Ms Jeeva, a skills facilitator, was retained. Mr Behrens and his secretary assumed HR direct roles from their position in the group’s management company which managed several subsidiaries, including CD. Several consultations took place with Mr Selvan on a one-on-one basis.
The dispute about procedural unfairness
The First question that arises is whether Mr Selvan could raise the complaints he had about the procedural unfairness of the retrenchment process as regards himself. He had several distinct complaints about what he regards as a sham consultation engagement over and above the allegation of inadequate notice. Two distinct steps were taken, in turn, by Mr Selvan in prosecuting his grievance.
In the Arbitration
The first step was to take the dispute to arbitration before the bargaining council, invoking s 191(12) (a) of the LRA and intending to contest both procedural and substantive fairness of his dismissal. That section provides:
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An employee who is dismissed by reason of the employer’s operational requirements may elect to refer the dispute either to arbitration or to the Labour Court if -
the employer followed a consultation procedure that applied to that employee only, irrespective of whether that procedure complied with section 189;
the employer’s operational requirements lead to the dismissal of that employee only; or
the employer employs less than ten employees, irrespective of the number of employees who are dismissed.’
Before the arbitrator, the point was argued whether this section could apply because, so CD contended, Mr Selvan was not a single employee within the contemplation of the provisions of either (a) or (b) because Mr Selvan’s retrenchment was one of many pursuant to the process in terms of s 189A. This argument was premised on two possibilities with the same result: i.e., whether Mr Selvan was to be regarded as one of the numbers retrenched over the course of 2016, or more narrowly, as one of three in the HR department who were dismissed, he was not a lone retrenchee. The arbitrator upheld the point in limine advanced by CD and ruled that s 191 (12) (a) could not apply to Mr Selvan and that the matter could not be ventilated in the bargaining council.
The arbitrator’s ruling binds Mr Selvan. It could have been reviewed. It was not. What is the long-term consequence of this choice? On...
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