The applicant alleges that she was dismissed without being consulted as required by section of the Act. In her statement of claim, she sought compensation and re-instatement, but her representative informed the Court from the bar source she abandoned the latter relief.
Prior to the commencement of this arrangement, a memorandum of agreement setting out the terms of the relationship between the respondent and Imperial was drawn up.
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It was never signed by the parties. The agreement provided, inter alia, that after an initial period of 12 months, the relationship could be terminated by either party on six months' notice.
Her position was styled "brand manager". As such she was responsible for overseeing the marketing and merchandising of Superking, and attending to the administration thereof.
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She reported to the respondent's general manager, Mr W A Nel. This decision was verbally communicated to Mr Nel early in August It was confirmed in writing on 12 August.
Imperial's action was in breach of the notice provision of the agreement with the respondent. However, Imperial justified its withdrawal on the basis that the memorandum of agreement had not been signed.
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On the following day, 13 August, Imperial confirmed that it would pay the respondent some R5m in order to enable the respondent to meet its obligations including the costs attendant on retrenching its staffwind up its operations, and meet its bank loans. It was further agreed that the respondent would continue to administer a promotion scheme styled Quest in accordance with Imperial's instructions.
This scheme entailed the redemption of vouchers that had been issued to customers of Superkings. Imperial issued the necessary instructions for the administration of the scheme on 19 September The respondent accepted these instructions three days later.
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On her return to work on 15 Augustshe was informed of Imperial's decision, and instructed by Mr Nel to take immediate steps to halt the marketing and sales of Superkings and to cancel all advertising. The notice further set out the various alternatives to retrenchment that had purportedly been considered and rejected by the respondent, stated that about 34 employees were "likely to be affected", and that the "proposed" retrenchments were "likely to take effect" by close of business on 31 August The notice further stated that the services of certain employees might be required to assist in the respondent's undertaking to Imperial to "clear the market" by 30 Septemberand that this bar be "discussed with the retrenchees at consultation stage".
Under the heading "severance pay proposed" it is was stated that, although the Act stipulated one week's remuneration for every completed year of service, the respondent would "consider the possibility" of giving each worker "one month's severance pay".
Finally, the notice gave an undertaking to re-employ retrenchees if and when positions became available, but added that this possibility was "extremely unlikely". They provide that when an employer contemplates dismissing employees for operational reasons it is required to consult with them or their representatives over a dating quest bars za pa of issues.
During the course of such consultations, the employer must disclose relevant information to make the consultation effective. It is trite that the purpose of such consultation is to enable affected employees to make representations as to whether retrenchment is necessary, whether it can be avoided or minimised, and, if retrenchment is unavoidable, the methods by which employees will be selected and the severance pay they will receive.
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The proper approach, according to Froneman DJP, is "to ascertain whether the purpose of the section the occurrence of a joint consensus-seeking process has been achieved". The learned Deputy Judge President observes in this regard at paragraphs 30 and 31 - emphasis added: If not.