Vishal Janynarayan and Others v Fugro Survey Africa (Pty) Ltd

The respondent, Fugro Survey Africa (Pty) Ltd, is a South African geophysical survey company forming part of an international group. The appellants were construction survey engineers seconded to the group’s Netherlands entity. Due to the Covid‑19 pandemic, construction projects were cancelled, the secondment ended, and the respondent had no construction work available in South Africa. The respondent commenced a consultation process and ultimately retrenched the appellants for operational requirements. The Labour Court (court a quo) found that although the economic rationale for downsizing was genuine, the respondent failed properly to consider a viable alternative to retrenchment—namely a form of unpaid leave or freelance arrangement—which could have mitigated or delayed job losses. On that basis, the retrenchments were found to be substantively and procedurally unfair, and compensation was awarded.

The appeal was dismissed. No order as to costs was made.

The case reaffirms the limited scope for appellate interference with compensation awards in unfair dismissal and retrenchment matters. It underscores the duty of employers to meaningfully engage with viable alternatives to retrenchment under section 189 of the Labour Relations Act, even in severe economic conditions such as those caused by Covid‑19. It also confirms that failure to engage with such alternatives may render retrenchments both substantively and procedurally unfair.