The South African Commercial Catering and Allied Workers Union (SACCAWU) is headed to Constitutional Court with Union Bashing Employer Woolworths on a Principle Issue around the retrenchments of nearly 51 workers who were procedurally and unfairly dismissed in about six (6) years ago. The Company’s approach was premised on entrenching casualisation as they only retrenched workers who refused to accept unilaterally imposed flexible working arrangements with drastic reduction of their hourly rates and slashing of benefits. After facilitation by CCMA parties failed to settle the matter, then Woolworth effected dismissals/retrenchment, and the Union escalated the case into Labour Court and after protracted deliberations the Union emerged victorious and the outcome favoured the Union’s long held line of argument that; the dismissal of her members was both substantively and procedurally unfair. The Labour Court AJ Nkutha-Nkontwana found the Dismissal to be both substantively and procedurally unfair and did not hesitate to order the company Woolworths to retrospectively reinstate members of SACCAWU without any loss of pay, in the first instant and further ordered Woolworth to pay costs.
Unhappy with the judgment, Woolworth approached the Labour Appeals Court hoping to reverse the victory, but, even at that level the Court still found the dismissal was unfair, but, ordered twelve (12) months compensation to each dismissed employee. This act troubled the Union, but, in the broader legal context, it could as well water down the spirit and intent of (Section 193:3) of the LRA which prescribes that; “(3) If a dismissal is automatically unfair or, if a dismissal based on the employer’s operational requirement is found to be unfair, the Labour Court in addition may make any order that it considers appropriate in the circumstances”
Then the Union petitioned the Constitutional Court, and we since learnt that Woolworths has made a cross appeal. This cross appeal can only be attributed to the long held view of the Union that Woolworths is actually the lead employer in the South African Retail Economic Sector in Union Bashing second to the foreign Walmart-Massmart (Makro, Massdiscounters, Jumbo, Cambridge, Rhino, etc). It must be pointed out that Woolworths, like most employers who have embarked upon this frontal assault on workers in the form of downward variation of workers terms and condition of employment, relied on the Supreme Appeal Court Judgment in the matter between NUMSA and Frys Metals (PTY) Ltd (2005) 26 ILJ 689 (SCA) which is now used to threaten retrenchments as a means to induce if not compel workers to accept the route into downward variation of the terms and conditions of employment. This action is in direct conflict of the amended version of Section 187(1), which can be reduced to mean that employers are gradually becoming law unto themselves, and by day they undermine the Democratic State of the day.
Our prayers to the great legal minds who constitute the Constitutional Court is synergy and harmonisation of application in Law of both LRA Section 187(1) as Amended and 193(3) to favour in a broader context, meaning to Creation of Decent Jobs for working person(s) in South Africa. In pursuit with the line of the court’s summary which articulated the following; “Dismissal for operational requirements-dismissal of employees who had accepted its commercial reasons to work flexible hours-employer alleging pay inequity as a ground for operational requirements-it is incompetent for an employer to seek address unfair pay differentiation through an operation requirements process and thereby circumventing its obligation under Chapter III of the EEA-dismissal not operational justifiable. Dismissal for operational requirements-employer dismissing who had employees commercial and economic reasons in order to make profit-employer did not produce evidence on the costs associated with the employment of affected employees; total amount of targeted cost reduction and whether such target had been achieved-it is not possible to decide if the employer’s decision is a rational or reasonable one –dismissal not operationally justifiable. Dismissal for operational requirements-consultation-employer failed to consult with the recognised trade union during voluntary phase-in the absence of recognised union or workplace forum, there is a duty to consult with a registered trade union-dismissal procedurally unfairly”.
The set down date is the 29th May 2018, in Johannesburg, wherein in defence of Constitutional Democratic State principle, we will mobilised hundreds of COSATU, SACP, SACCAWU members and the general public to take part in picketing or peaceful demonstration for the duration of the proceedings of the Court hearing, within the Courtyard premises at Constitutional Hill, Braamfontein.
LOGISTICS OF THE MEDIA BRIEFING SESSION ARE:
DATE : 29th May 2018
VENUE : Constitutional Hill, Braamfontein
TIME : 8am – 13h00
SACCAWU NATIONAL COMMUNICATIONS
SACCAWU Interim Media Liaison Officer: Mike Sikani
Cell 082 336 8296 Email: email@example.com
Secretariat Admin: Lucas Ramatlhodi
Cell 082 336 5325
General Secretary: Mduduzi Mbongwe
Cell 082 336 5146
Deputy General Secretary: Bones Skulu
Cell 082 3365 015