Zandile Jali v Wits Health Consortium (Pty) Ltd

The applicant was employed by the respondent on 1 October 2014 as a Data Capturer in the Maternal, Adolescent and Child Health Research Unit (MARCH Research Unit) and was promoted to Quality Assurance Officer on 1 June 2015. She was employed specifically to work on the Female Condom Evaluation Project, a donor-funded research project. Her contract stated that employment duration was dependent on the renewal and/or availability of project funding. When the Female Condom Evaluation Project ended on 31 March 2017, the respondent initiated a retrenchment process on 1 February 2017. The applicant was given temporary work on the IBIS project until 30 April 2017 and was assessed for two temporary positions (Quality Assurance Officer and Quality Assurance Administrator) in the ECO project. She was unsuccessful in her application, with Ntutuhuko Khumalo being appointed to the Quality Assurance Administrator position after scoring higher in assessments. The Quality Assurance Officer position was not filled to save costs. The applicant declined an alternative position as Research Administrator because it paid R5000 less than her original salary. Her retrenchment became effective on 31 April 2017, and she was paid up to 31 May 2017 plus severance and leave pay.

• Whether the applicant's retrenchment was substantively unfair
• Whether the applicant's post of Quality Assurance Officer had become redundant
• Whether the advertised Quality Assurance Officer position in the ECO project was the same as the applicant's previous position
• Whether the applicant should have been appointed to the vacant Quality Assurance Officer/Quality Assurance Administrator position to avoid dismissal
• Whether the respondent had exhausted all reasonable measures to avoid dismissal in terms of section 189 of the LRA
• Whether requiring an employee facing retrenchment to compete for alternative positions constitutes unfair selection for dismissal

The applicant's referral was dismissed with no order as to costs.

An employer who requires a dislocated employee to compete for one or more new posts does not act unfairly and does not transgress sections 189(2)(b) or 189(7) of the LRA. Being required to compete for such a post in circumstances of retrenchment is not a method of selecting for dismissal but rather a legitimate method of seeking to avoid the need to dismiss a dislocated employee. Where a legitimate operational justification exists, there is nothing innately unfair in requiring an employee whose position is affected to compete in a fair and objective process for placement into an alternative position, particularly where there are other employees in the same situation facing possible retrenchment and the difference in job content between the old and new profiles of the positions is sufficiently significant to justify assessment for suitability. A retrenchment will not be substantively unfair where the employer conducts the selection process on a reasonable, non-arbitrary, objective and consistent basis.

The court noted that the applicant was offered an alternative position of Research Administrator but rejected the offer because it came in at a lower salary level, and that the position of Quality Assurance Administrator also came in at a lower level. The court also observed that in donor-funded research environments, staff are appointed for particular projects and the duration of their employment is generally dictated by the lifespan of the project's funds. The court commented that contracts may be formatted without specifying the particular project in case suitable work becomes available in another project or unit at the end of the funded project, and that contract staff at universities generally are afforded fewer benefits than permanent staff. The court noted that sometimes staff are requested temporarily to assist on other projects when the exigencies of the project (such as urgency) require it.

This case reinforces important principles in South African labour law regarding substantive fairness in retrenchment cases, particularly in the context of donor-funded organizations where employment is project-dependent. It confirms that employers may legitimately require employees facing retrenchment to compete for alternative positions through fair and objective assessment processes, and that such competition does not constitute unfair selection for dismissal. The case is significant for clarifying that when a legitimate operational justification exists and there are sufficiently significant differences in job content between old and new positions, requiring assessment for suitability is not unfair. It also illustrates the application of the principle that redundancy can be established when the specific project for which an employee was hired comes to an end in donor-funded research environments. The case demonstrates that employers satisfy their obligation to avoid dismissals when they offer fair opportunities to compete for available positions and provide alternative employment options, even if at lower remuneration levels.