Woolworths ordered to reinstate workers
Woolworths says the positions no longer exist; the Constitutional Court says they do — whether on a full-time or flexi-time basis
The South African Commercial and Catering Workers’ Union (Saccawu) succeeded on Tuesday in having dozens of employees that were dismissed by Woolworths in 2012 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 when it converted their contracts from full-time contracts of employment to a flexible working hours system.
The compensation was for 12 months’ pay.
In its leave to appeal, Saccawu also wants 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. “They were employed as cashiers and there has been no suggestion that the number of cashiers has decreased. It is the conditions of employment that have changed and not the positions themselves.”
The company only began consultations with Saccawu about its intention to retrench 144 workers who 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 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 and the applicants may then revive their proposal or make another proposal aimed at the parties reaching an agreement on the issue of them working flexi-time,” said Khamphephe.
The Constitutional Court emphasised that the parties were free to resume talks aimed at reaching an agreement on the flexi-time 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 are 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”.
Correction: November 7, 2018
An earlier version of this story said the workers were dismissed in 2002, when the new working conditions came into effect. The workers were in fact dismissed in 2012.