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  • REPUBLIC OF SOUTH AFRICA

    THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN

    JUDGMENT

    Reportable

    Case no: CA 7/12

    In the matter between

    GIJIMA AST (PTY) LTD Appellant (Respondent)

    and

    RAYMOND HOPLEY Respondent (Appellant)

    Heard: 23 May 2013

    Delivered: 07 February 2014

    JUDGMENT

    TLALETSI ADJP

    [1] This is an appeal against the order of the Labour Court (per Rabkin-

    Naicker J) pursuant to a trial involving a dispute about the fairness or

    otherwise of the respondents dismissal by his erstwhile employer the

    appellant. The appellant contended that the dismissal of the respondent

    was based on its operational requirements and was fair. The respondent

    however, contended that his dismissal was unfair.

    [2] The Labour Court, in a judgment handed down on 9 March 2012, held

    that the respondents dismissal was substantively unfair and ordered the

    appellant to pay the respondent compensation equivalent to six times his

    monthly salary at the rate of his remuneration at the time of his dismissal

    and costs of the trial.

  • 2

    [3] The appellant is appealing against that part of the order declaring the

    dismissal to be substantively unfair. The respondent in return supports

    the order in respect of substantive unfairness but filed a cross-appeal

    against that part of the order awarding him compensation. The appeal is

    in this Court with leave of the court below.

    [4] I find it appropriate to set out the factual matrix of the dispute, followed

    by a consideration of the appeal, the cross-appeal and lastly the issue of

    costs. For the sake of convenience the respondent in the court a quo

    shall be referred to as the appellant and the applicant in the court a quo

    as the respondent.

    [5] During the trial the appellant tendered the evidence of Hendrick Stefanus

    Strydom and Marina Uys. The respondent testified on his behalf. The

    factual background in this appeal is, unless where otherwise indicated,

    common cause. The appellant conducts business of providing

    information technology services to its clients. The respondent was

    employed by the appellant at its Cape Town unit from 1 January 2000

    until his dismissal on 12 August 2010. He was at the time occupying the

    position of Operations Manager1. He had a credit service of 25 years and

    three months at the time of his dismissal.

    [6] The respondent was engaged in the business unit called Distributed

    Computing Services (DCS) which was a unit within the section called

    Managed Services. The respondent had been the Operations Manager

    in the DCS for 18 months, having previously been an Availability Service

    Manager (ASM) for 10 years.

    [7] It is common cause that the performance of the DCS business unit was

    not satisfactory in 2010. There was insufficient work to justify the number

    of staff members employed in the business unit. There was therefore a

    need for the reduction in staff numbers and reduction in overhead costs.

    In the middle of the year 2010, the appellant implemented a restructuring

    1 His remuneration package was R45 617-42 per month together with a fuel allowance of R1 500.00 per month and a cell phone allowance of R650.00 per month.

  • 3

    process in the DCS business unit. The process entailed the abolishment

    of the old organisational structure and the establishment of a new

    structure. The new structure was to utilise less staff and as a result some

    of the positions, including that of the respondent became redundant.

    [8] On 6 May 2010, a meeting took place with the employees in order to

    advise them of the proposed restructuring. The respondent attended this

    meeting.

    [9] On 12 May 2010, the respondent was issued with a Notice in terms of

    Section 189(3) of the Labour Relations Acts2 (the Act). The process that

    was put in place was that the employees had to apply for positions that

    were to be advertised in the new structure by submitting their curriculum

    Vitae. There was also an agreement on the selection criteria for the

    appointment of persons to the new positions. The method of selecting

    which employees were to be affected was recorded in the Notice of

    Restructuring document as follows:

    The company proposes using the following selection criteria:

    a. Skills, knowledge and/or

    b. Relevant qualifications and experience and/or

    c. Years of service

    This will be used to identify the employees who might be affected by the

    possible reduction in headcount. The business unit may consider any

    additional selection criteria that are proposed during the course of the

    consultations by you. The criteria the parties then agreed to be used to

    identify those who might be affected by the possible retrenchment.

    The formal process was to be commenced on 6 May 2010 and was to be

    completed by 12 July 2010.

    [10] It is common cause that the respondent applied for the positions of ASM

    and Customer Service Manager (CSM) in the financial sector.

    2 66 of 1995.

  • 4

    Candidates were shortlisted for interviews for the two positions. The

    respondent was one of the candidates selected.

    [11] On 24 May 2010, interviews were conducted by the panel consisting of

    Phukubye, Prinsloo, Lange and Strydom. The respondent was not

    successful in his applications for the two positions. He was advised on

    28 May 2010 that the next step in the process was that alternative

    positions would be sought for him in the appellant as a whole. On 12 July

    2010, the respondents employment was terminated on one months

    notice. The reason for the termination was recorded as the appellants

    operational requirements. The termination date was 12 August 2010.

    [12] Strydom was the Divisional Human Resources Manager based in

    Johannesburg. He testified that the interviews were conducted by putting

    questions to candidates, had discussions thereafter and the candidates

    were ranked on what the panel felt how they would be best suited to the

    position. The advertisements for the positions were communicated

    through the internet and were restricted to the Western Cape Province.

    [13] In response to the question how the interviews were conducted and why

    the respondent was not appointed, Strydom testified that:

    all the candidates that were on the shortlist that were interviewed

    could do the work. The panel of people who interviewed had to select

    the best person for that position and at the time the panel said that [the

    respondent] was definitely not first, second or third choice for the

    availability services manager, there were other people however he was

    the third choice on the client services manager but he was not the first or

    second choice.

    [14] He mentioned that for managed services, the candidates selected

    according to the panel ranking were Ernst Fortran, Barbara Hare and

    Sheree Gouws respectively. For ASM (now PetroSA) it was Allison

    Cornelissan, Heidi Alterbury and Schalk Visagie. For Public Sector

    (CSM) it was Sheree Gouws, Peter Le Grange, for Finance it was Ian

    Van Staden, Barbara Hare and the respondent was ranked third, for

    Retail it was Barbara Hare, Schalk Visagie and Ernst Fortran.

  • 5

    [15] Strydom testified that although some of the candidates were ranked by

    the panel some were changed by the Regional Executive after some

    other consultations. He disagreed that the respondent had more

    experience than all the candidates appointed. However, he could not

    provide the relevant years of experience for Barbara Hare and that of Ian

    Van Staden and how they compared to the respondent. He further

    disagreed that the scoring process and the interview process were not

    objective. His reason for this view was that he and Phukubye were from

    Johannesburg and they did not know the people they were to interview

    intimately and they selected the best fit for the positions that were

    advertised.

    [16] In relation to seeking alternative position for unsuccessful candidates,

    Strydom testified that the human resources manager for the Cape Town

    branch had consultations with the affected employees. He mentioned

    further that as there were no available positions in Cape Town he

    believed that a position was offered to the respondent in Gauteng and

    that he turned it down. He testified that he personally did not offer the

    respondent a position in Gauteng but only heard from someone else. In

    response to the contention by the respondent that bumping should have

    been applied and that he would not have been dismissed, Strydom

    testified that bumping and LIFO were not used as the criteria for

    selection. In response to the contention by the respondent that the

    positions were ring fenced and that he was not considered for other

    positions in the rest of the organisation, Strydom responded that the

    restructuring exercise pertained to Western Cape only as they were the

    only ones who were undergoing restructuring and that the advertised

    positions were limited to the Western Cape.

    [17] On the performance of the respondent in the interviews, Strydom

    mentioned that he

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