Ann Crotty Writer-at-large

The South African Commercial Catering and Allied Workers Union (Saccawu) said on Wednesday that employees who were retrenched by Woolworths for not accepting the terms of the conversion to flexitime in 2012 must be reinstated.

Khulekani Ngubane, head of the organising campaign’s collective bargaining unit at Saccawu, said that Woolworths had been the test case for the retail sector in the campaign to switch workers from full-time status to flexitime.

"After our initial victory at the Labour Court, they started making things difficult for the union in the work place," said Ngubane, who described the Constitutional Court’s hearing as a fight for a matter of principle.

Kirsten Hewett, a spokeswoman for Woolworths, said the changes had to be made to meet the requirements of modern trading patterns.

"As a values-based organisation, Woolworths is committed to fair labour practices and will respect the direction given by the courts."

On Tuesday, the Constitu-tional Court reserved judgment in the case brought by the union against Woolworths, which is seeking leave to appeal against a ruling by the Labour Appeal Court in a case dealing with Woolworths’s conversion to flexitime.

Workers  retrenched

The case involved 44 workers, all Saccawu members, who had been retrenched when they did not accept the conversion, early retirement or voluntary severance.

Saccawu applied to the Labour Court, which held that Woolworths had failed to prove, on a balance of probabilities, that the dismissal of the employees was operationally justifiable.

It also held that Woolworths had failed appropriately to consider alternatives to dismissal.

This meant the dismissals were deemed to be procedurally and substantively unfair. Woolworths was ordered to reinstate the dismissed workers retrospectively from the date of their dismissal without loss of pay.

Woolworths appealed to the Labour Appeal Court, which agreed with the Labour Court that the dismissals were unfair but did not agree with the remedy since the full-time posts were now redundant.

Instead the Labour Appeal Court awarded the payment of 12 months’ compensation.

Ngubane said that the 12 months’ compensation was not satisfactory given the number of years involved. He also disputed Woolworths’s claims that full-time jobs no longer exist and therefore the employees could not be reinstated.

Hewett said the decision to change to a more flexible model was "based on pending labour law changes and adapting to being a future-fit retailer".

She said employees who were affected were paid a severance package when they were retrenched.