Labour Court rules Covid-19 job cuts were fair
Most, if not all, of Tsogo Sun's departments were limping, given the impact of the pandemic on the business’s operations.
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A Covid-related retrenchment of childminders at a Tsogo Sun Casino has been found to have been done in all fairness – mostly.
The Labour Appeal Court has found that the dismissals of three crèche attendants from Emnotweni Casino were largely fair.
This is except for one employee, Nonhlanhla Mavuso, whose dismissal was deemed procedurally unfair. She is to receive three months’ remuneration.
The crèche shut during lockdown in March 2020. Although the casino reopened in July, the childcare service stayed closed.
Tsogo Sun continued paying benefits, then 18 months later issued retrenchment notices, stating the service was unlikely to resume.
Consultations ran from late September to mid-November 2021, with four scheduled meetings held individually with each employee.
During this time, the workers were invited to propose alternatives to retrenchment, and several options were discussed, including redeployment to other departments, implementing a rotational shift system, or outsourcing the crèche to the employees themselves.
Tsogo Sun reviewed these proposals but concluded that most were not feasible given the ongoing impact of Covid-19 on its operations.
A voluntary severance package was offered on 18 October 2021, which would expire nine days later; only one employee accepted it. The remaining three employees, who rejected the package, were formally dismissed on 17 November 2021.
Writing about the effect of the pandemic on the casino, the court noted that it was battling financially.
“Most, if not all, of the appellant’s departments were limping, given the impact of the pandemic on the business’s operations. There was also uncertainty as to when or whether the crèche would reopen,” read the judgement.
Yet, the Labour Court that initially dealt with the matter had found the process had been predetermined and alternatives rejected too quickly – effectively a tick box exercise by Tsogo Sun.
Tsogo Sun argued on appeal that it was unaware the workers had union representation, with the court finding that it could not reasonably have known that all employees were union members and that consultation with the union was required.
The exception is Mavuso, who explicitly engaged the South African Commercial, Catering and Allied Workers Union in November 2021.
Mavuso claimed procedural unfairness because her union wasn’t consulted after she had engaged them.
In determining fairness, the court ruled that the affected parties were allowed to make use of outside consultation, yet chose not to do so.
“The employees were given a period of approximately 10 days to consider the document and were given an opportunity to consult any third party as to its content.”
In the end, Tsogo Sun’s appeal was upheld in part.
Only Mavuso was entitled to compensation; the other two crèche attendants’ dismissals are substantively and procedurally fair.
IOL BUSINESS