Watson Kelemogile Lekalake v EOH Mthombo (Pty) Ltd

Mr Watson Kelemogile Lekalake was employed by EOH Mthombo (Pty) Ltd, initially by MIIB Business Technology which was acquired by EOH in 2012. He worked as an SAP consultant with qualifications in computational and applied mathematics and IT certifications. He was deployed to the Department of Water and Sanitation (DWS) as part of EOH's Public Sector Division. In May 2019, EOH invited him to a poor performance hearing, but when he requested supporting documentation, the hearing was postponed indefinitely. Shortly thereafter, he was removed from the DWS site and instructed to remain at home. Following a CCMA conciliation on 3 June 2019, he returned to work on 18 June 2019, only to be invited to a section 189 consultation meeting that same day. EOH proceeded to retrench Mr Lekalake, citing various shifting reasons including poor performance, that he did not enjoy programming, and that DWS wanted a more senior person. During evidence, it emerged that the real reason for the retrenchment was that EOH had suffered serious corruption allegations against its senior executives, which led to the loss of government contracts and the eventual closure of the entire Public Sector Division by the end of 2022. Mr Lekalake was never subjected to performance appraisals, was not provided with performance improvement training, and no replacement was made to his position at DWS after his removal.

• Whether the dismissal of the applicant for operational requirements in terms of section 189 of the Labour Relations Act was substantively fair
• Whether corruption allegations against senior executives of the employer constitute a fair reason for dismissal of employees due to operational requirements
• Whether the employer complied with its obligation to avoid dismissals by offering alternative employment or training
• Whether reinstatement is an appropriate remedy in the circumstances
• Whether costs should be awarded on an attorney-client scale

1. The dismissal of Mr Watson Kelemogile Lekalake by EOH for operational requirements was substantively unfair; 2. Mr Watson Kelemogile Lekalake is retrospectively reinstated as an EOH employee as of the date of his dismissal with full benefits and emoluments; 3. Mr Watson Kelemogile Lekalake shall report for duty on 1 March 2025 at the headquarters of EOH; and 4. EOH is ordered to pay the costs of Mr Watson Kelemogile Lekalake on an attorney-client basis including the costs of counsel.

An employer cannot justifiably dismiss an employee for operational requirements under section 189 of the LRA where the operational difficulties arise from serious corruption allegations against the employer's own senior executives and the employee bears no responsibility for those circumstances. The employer has an obligation not to dismiss an employee for operational requirements if it has work which the employee can perform either without additional training or with minimal training, as this is a measure that can be employed to avoid dismissal. Where the reasons advanced by an employer for retrenchment are fabricated, unsupported by evidence (such as allegations of poor performance without any performance appraisals or training), and shift throughout the proceedings, the dismissal will be substantively unfair. An employee who is a victim of circumstances created by the employer's senior executives' alleged corruption is entitled to reinstatement where the employer continues to trade and can benefit from the employee's skills and qualifications.

The Court made strong observations about the corrosive effects of corruption on society, quoting extensively from S v Shaik regarding how corruption offends against the rule of law, lowers the moral tone of a nation, negatively affects development and human rights, and threatens the constitutional order. The Court emphasized that courts must send an unequivocal message that corruption will not be tolerated and punishment will be appropriately severe. The judge commended counsel for EOH (Adv MA Lennox) for being brutally frank about the corruption allegations and not attempting to downplay them, demonstrating the fiduciary duties counsel owes to the court. The Court also apologized for the inordinate delay in handing down the judgment (the matter was heard on 5 September 2022 but judgment was only delivered on 21 February 2025), acknowledging that while haste is the enemy of art, delayed judgments are nevertheless unacceptable. The Court emphasized that in determining whether to reinstate, the overriding consideration should be fairness between the parties rather than legal onus, assessed objectively on the facts while bearing in mind that the core value of the LRA is security of employment.

This case establishes important principles regarding dismissals for operational requirements under section 189 of the LRA. It confirms that corruption or misconduct by senior executives that leads to business consequences cannot constitute a fair operational reason to dismiss innocent employees who played no part in such misconduct. The judgment reinforces the employer's duty to genuinely explore alternatives to dismissal, particularly where the employee possesses valuable skills and qualifications that could be deployed elsewhere in the organization. It emphasizes that operational requirements must be genuinely justifiable by commercial or business rationale, not by consequences flowing from the employer's own wrongdoing. The case also demonstrates the court's willingness to award costs on an attorney-client scale where the employer's conduct is tainted by corruption or illegality, sending a strong message that courts will not countenance unfair dismissals arising from corrupt activities. The judgment provides valuable guidance on when reinstatement is appropriate and practical, particularly where the employee is blameless and the employer continues to operate.