In the case of REEFLORDS PROPERTY DEVELOPMENT (PTY) LTD V ALMEIDA (JA72/2020) [2022] ZALAC 8, an employee was called into a meeting with three senior colleagues to discuss a transfer.

She was told she had to move out of the sales department and into the employer’s development department where she would be taking on a marketing function. ​

The employee declined the proposal as she did not have marketing experience. Her refusal was ignored.  ​

In response to this, she lodged a grievance as she believed the change was a demotion. Her grievance was not resolved and the employer gave the employee notice in terms of section 189(3) of the Labour Relations Act 66 of 1995 (LRA) of her possible dismissal based on its operational requirements. The notice cited that because of the restructuring of the business, her position was made redundant. The only way to avoid retrenchment was to accept the marketing position. ​After further consultations, a contract of employment for the new position was provided to the employee. ​

However, the contract omitted requests made by the employee related to training and a travel allowance. ​She informed her employer she could not accept the contract. ​

Following a final meeting, the employee was informed that she was to be retrenched and was not required to serve a notice period.​

Aggrieved by the outcome of the consultations, the employee approached the Labour Court (LC). ​ The LC found that the employer should have embarked on consultations before transferring the employee and making her post redundant. ​The LC was of the view that there was no joint consensus-seeking process. The LC believed that, if the training and travel expenses had been included in the written terms and conditions of the marketing executive post offered, it would not have been rejected as an alternative to retrenchment.​

The LC found that the employee’s retrenchment was substantively unfair as the employer had failed to establish that she had unreasonably refused to accept an offer of alternative employment. ​The Court was of the view that her dismissal could have been avoided.​

The LC found that meaningful consultation in the context of retrenchment must be genuine and undertaken with the purpose of seeking alternatives to avoid dismissal.

Since the employee did not seek reinstatement, the LC ordered the employer to pay the employee six months’ remuneration with costs.​

On appeal, the Labour Appeal Court (LAC) found that in refusing to adhere to the terms of the agreement previously reached, the employer acted both in bad faith and unfairly. ​

The offer of the alternative position, without training, was unreasonable.​ The LAC agreed with the LC, finding the dismissal of the employee both procedurally and substantively unfair. ​