CONSTITUTIONAL COURT OF SOUTH AFRICA
National Union of Metalworkers of South Africa (NUMSA) v Edcon Limited and Karin Steenkamp and Others v Edcon Limited
CCT 47/15 and CCT 46/15 Date of hearing: 8 September 2015 ________________________________________________________________________
MEDIA SUMMARY
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The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Tuesday 8 September 2015 at 10h00, the Constitutional Court will hear a consolidated application for leave to appeal against a Labour Appeal Court (LAC) judgment concerning the interpretation of provisions of the Labour Relations Act (LRA), which regulate large-scale dismissals for operational requirements.
Between 2013 and 2014, Edcon Limited (Edcon), a major South African retailer, restructured its business operations resulting in the dismissal of 3000 employees. It issued notices informing the employees that it was considering dismissals for operational reasons. Thereafter it issued termination letters to the affected employees, which were premature, contrary to the requirements of the provisions of the LRA. On behalf of the dismissed employees the National Union of Metalworkers of South Africa (NUMSA) challenged the dismissals in the Labour Court on the basis that the notices of termination were void. Because of the importance of the issues that arose in the matter, the Judge President directed that it be heard by the LAC sitting as a court of first instance.
In the LAC, Edcon requested that the Court overturn two of its earlier decisions, which had held that premature termination notices result in invalid dismissals. Edcon argued that these prior decisions were inconsistent with the rights to equality and fair labour practices. It advanced the view that non-compliance with the LRA, in respect of the issuing of termination notices, does not invalidate the dismissals. Ruling in Edcon’s favour, the Court concluded that its previous decisions were wrong. It held that the dismissals were valid, even though Edcon had not complied with the statutory
requirements. It further held that the general principle that non-compliance leads to invalidity does not apply in all cases.
Before this Court, the former Edcon employees and their representative trade union, NUMSA, seek to challenge the LAC decision. They seek reinstatement with full back payment, on the grounds that the LAC erred in overturning its earlier decisions on this point. In addition, NUMSA submits that there is a distinction between unfair dismissals under the LRA and common law termination of employment. It argues that a valid period of notice prior to termination is required for an effective dismissal under the LRA, and therefore if that notice is defective or premature, it cannot result in dismissal.
Edcon argues that the LAC was correct – non-compliance does not automatically render the dismissal of no force and effect. Further, it contends that NUMSA and the individual employees have recourse under the LRA by means of a retaliatory strike or by approaching the Labour Court on the basis of non-compliance with a fair procedure.
Therefore, Edcon argues, the employees are not entitled to reinstatement.
