In terms of s191(12) of the LRA, an employee being retrenched under certain limited circumstances has the choice of referring the matter either to arbitration or the labour court. Is s191(12) of the LRA applicable if the individual employee’s dismissal formed part of a bigger retrenchment exercise involving other employees?
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Section 191(12) does not preclude an employee (who is consulted individually or dismissed individually) from having a dispute arbitrated by the CCMA simply because his retrenchment has formed part of a bigger retrenchment exercise involving other employees.
Commissioner Paul Botha, on 23 April 2014, in fact, issued a ruling to that effect in the unreported case of Van Rooyen Vermaak v PGC Group of Companies (Pty) Ltd. He found that s191(12) applied and that the commission did have jurisdiction to arbitrate in a dispute where Mr Van Rooyen Vermaak had been one of a number of employees dismissed due to the respondent’s operational requirements, but where he had been consulted individually.
The employer, PGC Group of Companies (Pty) Ltd, took the ruling on review, but the labour court, in PGC Group of Companies (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (unreported case number JR1150/14, delivered on 14 August 2018), upheld his jurisdictional ruling, inter alia, stating the following:
‘[18] The first submission, that s191(12)(a) cannot apply when more than one employee is dismissed for operational reasons, cannot be correct. Section 191(12)(a) must cater for a different scenario than paragraph (b). Subsection 191(12)(a) finds application where more than one employee is dismissed for operational requirements and the employer has followed a consultation procedure that applied to that employee only.
[19] The second question is a question of fact as to whether the employer followed a consultation procedure that applied to that employee only. The applicant (PGC Group) refers to documentation and indications that the third respondent (Van Rooyen Vermaak) was part of the general process. In a sense he was. That however is not the test. The test is whether the employer followed a consultation process that applied to him.
[20] It is common cause that there was more than one employee affected. The test however is whether the applicant (PGC Group) followed a process with the respondent (Van Rooyen Vermaak) separate from the rest.’
The court (at paragraphs [26] and [28]) concluded that there had been a process in general that had encompassed several employees, as opposed to the procedure that the employer had adopted in respect of Van Rooyen Vermaak. The latter had been consulted on his own and the employer had concerned itself separately with his position whilst the wider process was continuing. The court consequently held that Commissioner Botha’s finding had been correct and that the CCMA did have jurisdiction to arbitrate the dispute.
The employer’s subsequent application for leave to appeal was dismissed on 11 October 2018 and it had then petitioned the labour appeal court – also to no avail. The case ultimately ended up in the constitutional court under case number CCT 74/19. The constitutional court dismissed the employer’s application for leave to appeal on 22 May 2019, holding that it bore no reasonable prospects of success.
In Bouwer v South Zambezi Engineering Services (Pty) Ltd (2021) 42 ILJ 423 (CC), the CCMA, on the basis of what is stated above, concluded that in casu the applicant was the only person consulted and the only person dismissed and, therefore, the applicant qualified to exercise an election to refer the matter to the CCMA in terms of s191(12)(b) and s191(12)(c) of the LRA.
