Against Lidwala

according to Nkambule, was flouted as the human resource executive failed to respond to his concerns for his position to be rendered redundant. He also told the court that he never received any response on what attempts were done by the employer to avoid the redundancy.

“Such renders the purported consultation exercise to be a sham. Therefore, respondent’s letter of termination seeks to purportedly repudiate the binding terms of the permanent contract of employment through a document that is a nullity and is not birthed by any preceding retrenchment or redundancy, hence, it is unacceptable in law and as such has no legal effect and is void,” Nkambule told the court.

Argued

Lidwala Insurance Company raised points of law and argued that it was undesirable to decide an application based on an affidavit where the material facts were in dispute.

“Further that, it is evident that there is a dispute as to the process that preceded the meeting of October 25, 2022, among others in whether or not the applicant was prepared to be consulted and whether or not the applicant’s concerns were addressed,” Lidwala submitted.

In response, Nkambule said the employer jumped the gun since there were processes and procedures which were not considered before terminating his services before the processes could be exhausted.

Lidwala submitted that the court did not have jurisdiction to pronounce on

SOME OF SIKHUMBUZO NKAMBULE’S PRAYERS;

The letter dated October 25, 2023 issued by the respondent to applicant be set aside. Declaring the terms of the permanent employment contract between applicant and respondent on October 6, 2021, binding and enforceable.

Declaring the letter purporting to retrench him breaching the contract of employment and null and void.

Payment of a maximum compensation for 12 months in the sum of E756 000. Payment of car allowance for 12 months in the sum of E180 000.

Payment of fuel allowance for 12 months in the sum of E72 000.

Payment of accruing leave pay amounting to E112 768.48.

Payment of medical aid for 12 months amounting to E57 312.

Payment of cellphone and communication allowance in the sum of E24 000. Payment of E15 750 which was deducted from his July 2022 salary.

the validity of a termination of a contract of employment wherein the court had not conducted its own enquiry on the circumstances giving rise to the termination. The company stated that in terms of the letter of termination of employment, such termination was with effect from November 30, 2022 on grounds of redundancy.

“The termination having been communicated and there being no prayer for an interdict means that the court does not have jurisdiction to set aside a termination of services unless and until the provisions of Part VIII of the Industrial Relations Act have been complied with.

“The applicant’s services having been terminated means he does not have a legal interest in any existing, future or contingent right unless and until the court finds that the termination was unfair and accordingly set aside,” stated Lidwala.

It was also argued on behalf of the company that the Industrial Court did not sit as a court of review in respect of dismissal and accordingly, the court could not come to the assistance of an employee who complained about an unfair termination unless and until he exhausted the provisions Part VIII of the Act.

Retrenchments

Judge Msimango said like all dismissals, retrenchments must be both procedurally and substantively fair.

“Dismissal for operational requirements require that there must be a meaningful joint consensus seeking process in which the parties attempt to reach an agreement on a range of issues aimed at best, at avoiding retrenchment or if that is not possible, at ameliorating its effects and this procedure is termed consultation,” said the judge.

Judge Msimango also stated that it was important for employers to comply with their duty to consult and the consultation must be exhaustive and thorough, not merely sporadic, superficial or a sham.

Nkambule was represented by Kwanele Magagula of Sithole and Magagula Attorneys. Lidwala Insurance Company was represented by Zweli Jele of Robinson Bertram.