Menzi Hlanganani Buthelezi & 6 Others v Mabotwane Security Services

The applicants (Menzi Hlanganani Buthelezi, Delisile Yvone Hlatshwayo, and Jenifer Mabungu) were security guards employed by the respondent and posted at Charlotte Maxeke Hospital. They earned monthly salaries of approximately R5,800. On 26 January 2022, the applicants were summoned to the respondent's office and informed that the client (Charlotte Maxeke Hospital) did not want them at the site because they were union members who might instigate workers to strike. They were told to choose sites outside Gauteng province. On 28 January 2022, they were dismissed for operational requirements without proper consultation. The respondent provided a written notice citing economic crisis and COVID-19 pandemic as reasons for retrenchment, which contradicted the actual reasons given to the applicants (that the client no longer wanted them at the site). No consultation process was followed and no joint consensus-seeking process as required by section 189(2) of the LRA was conducted. Only three applicants attended the hearing on 28 May 2024. The respondent failed to appear, resulting in a default judgment.

• Whether the dismissal of the applicants for operational requirements was substantively fair
• Whether the respondent complied with the procedural requirements of section 189 of the Labour Relations Act
• Whether the respondent provided adequate disclosure of information as required by section 189(3) of the LRA
• Whether dismissal on demand of a third party (the client) without following proper procedures constitutes unfair dismissal
• What compensation is just and equitable in the circumstances

1. The dismissal of the applicants on 28 January 2022 for reasons based on operational requirements was declared both substantively and procedurally unfair. 2. The respondent is ordered to pay each applicant five (5) months compensation calculated at the rate of their pay at the time of dismissal.

When an employer dismisses employees for operational requirements based on a third party's demand (such as a client not wanting employees at a site), the employer must comply with all procedural requirements of section 189 of the LRA, including: (1) engaging in meaningful joint consensus-seeking consultation before making a final decision; (2) providing full written disclosure of all relevant information as required by section 189(3); (3) investigating and considering all alternatives to dismissal; (4) applying the principles from Lebowa Platinum Mines v Hill, including establishing good foundation for the third party's demand and taking steps to dissuade the third party. Failure to comply with these requirements renders the dismissal both substantively and procedurally unfair. An employer cannot merely fabricate reasons for operational requirements when the true reason is client demand; providing contradictory reasons for retrenchment indicates absence of genuine operational requirements. Consultation must occur once the possible need for retrenchment is identified and before a final decision is reached, not after the decision has been made.

The court emphasized that the concept of meaningful joint consensus-seeking process requires consultation in good faith and proceeds on the premise that consultation requires more than merely affording an employee an opportunity to comment on a decision already made. The court noted that when there is no longer work available for an employee due to a client not wanting the employee at a site, the employer is obliged to follow section 189 procedures, and anything contrary will render the dismissal both substantively and procedurally unfair. The court observed that the respondent's conduct was 'blatantly unfair' and 'callous' in dismissing employees without being heard, which justified the award of compensation at the higher end of the scale. The court quoted Jafta J's dissenting judgment in Association of Mineworkers and Construction v Royal Bafokeng Platinum to emphasize that a pre-dismissal hearing is core to procedural fairness regardless of whether the reason is misconduct or operational requirements.

This case reinforces the strict procedural requirements for retrenchments based on operational requirements under section 189 of the LRA. It clarifies that: (1) employers cannot circumvent proper retrenchment procedures merely because a client demands removal of employees from a site; (2) dismissal on demand of a third party must comply with section 189 consultation requirements and the principles established in Lebowa Platinum Mines v Hill; (3) contradictory reasons for retrenchment indicate lack of bona fide operational requirements; (4) meaningful consultation must occur before a final decision to retrench is made; (5) employers cannot treat retrenchment as a first resort without exploring alternatives. The case demonstrates the Constitutional Court's approach in Solidarity v Barloworld regarding meaningful joint consensus-seeking processes and proper disclosure of information. It also illustrates when substantial compensation is appropriate for particularly callous violations of employee rights.