Edcon staff fail in court bid to be reinstated

Photographer: Robbie Tshabalala Image source: BDlive

A majority judgment of the court found that just because their employer had effected dismissals contrary to the procedural requirements of the Labour Relations Act, it did not mean that those dismissals were invalid.

The act provides that an employer undertaking large-scale retrenchments may give notice to terminate the contract of employment only once 60 days have elapsed after extending an invitation to consult on an impending retrenchment.

Edcon, which employed almost 40,000 staff, started restructuring in April 2013 after its business began to falter. It failed to wait for the prescribed period for consultation before retrenching 3,000 employees in 2013 and 2014.

About 1,300 of the dismissed workers approached the courts asking for reinstatement and back pay, but they failed in the Labour Court last year and now also at the Constitutional Court.

The Labour Court has delivered conflicting judgments in the past.

When the Labour Court found in Edcon's favour in March last year, it acted contrary to a judgment handed down in 2010, when four De Beers employees successfully challenged the manner in which they had been dismissed.

In the De Beers matter, the Labour Appeal Court found that the firm had failed to follow the dismissal procedures and principles set out in the Labour Relations Act. This effectively rendered the company's dismissal notices invalid and as having no force or effect.

On Friday, Justice Ray Zondo, in a majority judgment, said invalid dismissals and a declaratory order that a dismissal was invalid and of no force and effect fell outside the contemplation of the act. The judgment means employees who are dissatisfied about their employers not complying with a fair procedure for their dismissals cannot challenge the validity of their dismissal at common law.

In a minority judgment, Justice Edwin Cameron disagreed.