Lauren De Almeida v Reeflords Property Development (Pty) Ltd

Ms De Almeida commenced employment with Reeflords in 2014 in the sales department, and was promoted to operations coordinator in February 2015. She fell pregnant in September 2015 and went on maternity leave during 2016. When she returned from maternity leave in September 2016, tensions existed between herself and Ms Cheng, a senior manager. Shortly after her return, on 29 September 2016, De Almeida was called to a meeting where she was asked to move to the development department as an assistant. On 30 September 2016, at a staff meeting, the CEO announced a restructuring whereby Cheng would be the sole head of the sales department and De Almeida's managerial duties would be reallocated. De Almeida lodged a grievance on 13 October 2016. On 28 October 2016, she received notice of possible retrenchment due to redundancy resulting from restructuring, with an alternative position as marketing executive offered. During the second consultation meeting on 7 November 2016, parties reached oral consensus that De Almeida would accept the marketing position subject to receiving training, KPIs being determined, and payment at AA mileage rates for her vehicle. However, the written contract and addendum sent to her did not reflect these agreed terms - specifically, the AA rate was approximately half what was agreed, and training was not mentioned. De Almeida rejected the written offer. At the third consultation meeting on 30 November 2016, the reasons for her rejection were not properly explored, and she was retrenched effective immediately.

• Whether the dismissal was automatically unfair due to pregnancy under section 187(1)(e) of the Labour Relations Act
• Whether the retrenchment was substantively unfair - specifically whether the employer discharged the onus of proving operational justification
• Whether the employer acted in good faith when an oral consensus on alternative employment was reached but not reflected in the written offer
• Whether the consultation process complied with section 189 of the Labour Relations Act
• Whether the retrenchment was procedurally unfair

1. The respondent must pay the applicant compensation of R132,000 (6 months' remuneration) within 15 days of the judgment. 2. The respondent must pay the applicant's costs, except that the applicant must pay the respondent's costs incurred in preparing and presenting argument in the application for absolution from the instance on the automatically unfair dismissal claim.

1. Where oral consensus has been reached during retrenchment consultations on the terms of alternative employment, an employer acts in bad faith and breaches the duty to engage in a meaningful joint consensus-seeking process under section 189(2) of the LRA if it fails to honor those terms when reducing the agreement to writing. 2. When an employee rejects a written offer of alternative employment that does not reflect previously agreed oral terms, the employer must clarify whether the employee is rejecting the written offer or the position itself (including with the agreed oral terms) before concluding that retrenchment is justified. Failure to do so means the employer has not discharged the onus of proving that the employee unreasonably refused alternative employment. 3. Retrenchment is substantively unfair where, on a balance of probabilities, the dismissal could have been avoided if the employer had honored the consensus reached on alternative employment. 4. An employer must consult with employees before implementing restructuring that makes their positions redundant, not merely after the redundancy has been created. 5. The proximity in time between return from maternity leave and retrenchment is insufficient to establish automatically unfair dismissal for pregnancy-related reasons under section 187(1)(e) where the causes of retrenchment predate the pregnancy and there is no evidence the maternity leave absence caused developments that would not otherwise have occurred.

The court observed that while job titles may not be of paramount importance compared to actual functions performed, employees' concerns about job security when being moved to new positions are not baseless, particularly where there has been gradual marginalization of their role in favor of a rival colleague. The court noted that where an employee may need training to perform duties in an alternative position, the employer should afford the opportunity for such training within reason, citing ILO Convention 158 and Recommendation 166. The court also commented that although the consultation process started in good faith, it became apparent that rivalry existed between De Almeida and Cheng, and that Cheng had limited enthusiasm to actively try to retain De Almeida, which contributed to the breakdown of the consensus-seeking process. The court acknowledged that De Almeida bore some responsibility for the confusion due to her poor articulation of reasons for rejecting the written offer and for abandoning her union representative at an advanced stage of consultations, which was reflected in a reduction of the compensation awarded.

This case establishes important principles regarding the duty of employers to honor oral consensus reached during retrenchment consultations and the obligation to clarify reasons for rejection of alternative employment before proceeding with dismissal. It reinforces that section 189(2) of the LRA requires a meaningful joint consensus-seeking process, and where consensus has been reached but breaks down, the employer must understand why and attempt to remedy the situation before concluding that retrenchment is justified. The case also confirms the long-standing principle that retrenchment should be avoided where possible as it is a no-fault dismissal, and employers must act in good faith throughout the consultation process. The judgment emphasizes that once oral agreement is reached on terms of alternative employment, the employer cannot simply ignore those terms when reducing the agreement to writing. The case demonstrates that procedural fairness in retrenchment requires consultation before restructuring that makes positions redundant, not merely after the fact.