Woolworths told to reinstate workers

The SA Commercial and Catering Workers’ Union succeeded on Tuesday in having dozens of employees who were dismissed by Woolworths in 2002 reinstated.

The SA Commercial and Catering Workers’ Union (Saccawu) succeeded on Tuesday in having dozens of employees that were dismissed by Woolworths in 2002 reinstated by the Constitutional Court.

The union approached the top court following a decision of the labour appeal court that only awarded the workers remuneration compensation for being unfairly dismissed by the company in 2002. It converted their contracts from 45-hour-perweek, full-time contracts of employment to 40 hours per week on a flexible working hours system. The compensation was for 12 months’ pay.

In its leave to appeal, Saccawu also wanted the court to rule that the dismissals were procedurally unfair.

Delivering the judgment on Tuesday, justice Sisi Khampepe said, in the unanimous ruling, that the court found that Woolworths’ argument that it was “not reasonably practicable” to reinstate the employees meant the exercise was a “mere inconvenience”.

The company argued that the posts from which the workers were dismissed had ceased to exist.

“I do not agree that the positions in which the applicants were employed no longer exist,” Khampepe said.

The company only began consultations with Saccawu about its intention to retrench 144 workers — who had declined the deal — much later in the process after it had already undertaken the voluntary conversion process.

Despite Saccawu eventually submitting to the company’s new work schedule, a “mistaken” Woolworths carried on with the dismissals.

“In these circumstances, it seems to me that we should revive the contracts of employment which existed between the applicants and the respondent at the time of dismissal,” said Khamphephe.

This was “on the basis that, as soon as possible after this judgment has been handed down, the parties may resume the consultation process which ended when the dismissal took place”.

The Constitutional Court emphasised that the parties are free to resume talks aimed at reaching an agreement on the flexitime work issue.

The court also found that Woolworths had failed to prove that the workers’ dismissals were for “fair reasons” based on operational requirements in accordance with the Labour Relations Act. Section 189 of the act states that dismissals must be a result of an employers’ economic, technological, structural or similar needs.

Woolworths’ reason for the dismissals was that it needed to be able to employ people who were ready to “be used on a flexible basis”.