SASBO The Finance Union obo Johannes Petrus Fourie v Nedbank Limited

The applicant, a senior employee of Nedbank Limited employed since November 2000, was retrenched for operational requirements following a restructuring of the bank’s client coverage department. Although the bank engaged with the union and affected employees through meetings, presentations, and an application process for new roles, it failed to issue a formal written notice in terms of section 189(3) of the Labour Relations Act 66 of 1995 before commencing consultations. After the applicant was unsuccessful in securing a position in the new structure and was placed in a redeployment pool, he received notice of termination on 3 October 2019. The union repeatedly raised the absence of a section 189(3) notice prior to dismissal, but the bank maintained that it had substantially complied with the Act.

The court declared the failure to issue a section 189(3) notice procedurally unfair, set aside the applicant’s notice of termination dated 3 October 2019, directed the respondent to issue a proper section 189(3) notice should it wish to proceed with retrenchments, and ordered the respondent to pay the applicant’s costs.

This judgment reinforces the peremptory nature of section 189(3) of the Labour Relations Act and clarifies that substantial compliance cannot substitute for the complete absence of a statutory retrenchment notice. It affirms the Labour Court’s supervisory role under section 189A(13) and underscores the importance of strict adherence to procedural safeguards in large-scale retrenchments, rooted in the constitutional right to fair labour practices.